"I am here because I want Egypt to be governed by Islamic Law"
"We need no lawyer God is our defence"
"There is only one Court case and that's before God"
"You are implementing Western Law on us" [Islamic militants on trial in a Cairo court quoted by Robert Fisk, The Independent, London, 28 June 1993.]
The Western encounter with Islamic law has reached a critical moment as the contours of a new world order emerge. Islamist political movements, within the Islamic world and the West, insist that we consider the role of the West in world order. This paper explores aspects of this strident encounter through a scanning of representations of Islamic law in selected Western literature and some Islamist responses. It argues that orientalism is the dominant trend within the literature and has constructed strong and enduring images. The consequences of these representations are two-fold; first that Islamic law is constructed as backward; and second that Western legal systems are represented as superior. These constructions are connected to the power relationship between the West and the Islamic world. These Western representations find a response within some Islamist scholarship which tends to attempt a reversal of the process altogether, with Islamic law becoming the superior system and the Western legal systems seen as decadent. However, these mutually exclusive representations are not symmetrical and therefore equally powerful as they are dependent upon an inequality of power. The purpose of this discussion is to make a contribution to clearing the way for a non-Eurocentric reconstruction of legal theory.
Much of the preparation for this paper was undertaken in Cairo, Egypt during the first semester of 1993. My research took place against the background of a turbulent political battle between the government and Islamist forces during which scores of people were killed, thousands were detained and an attempted assassination was made on the Minister of Information, a neighbour in Heliopolis. These events have added edge to the academic endeavour. The paper focuses on Egypt, and takes the form of a work in progress report of a research project which aims at situating the representation of Islamic law within wider Western scholarship. Islamic law may have played at the margins of Western legal theory yet the Western encounter with it reveals that colonialism is the ever present absence at its centre. The starting point of my work was Said's Orientalism,[Edward Said, Orientalism, Harmmondsworth: Penguin Books, 1978.] which throws into relief the Eurocentric character of much of modernism and indeed postmodernism.
Law and Orientalism
This paper argues that, despite its changing language, the Anglo-American critiques of Islamic law remain within the orientalist problematique. Islamic law has been represented within Anglo-American scholarship as an essentially defective legal system. The terrain of the critique has changed from the defence of colonial rule during the age of imperialism to contemporary claims about human rights, democracy and pluralism. The problem with this critique is that it replicates the power relationship between Europe (and the United States) and the Islamic world. The argument that Islamic law is defective nourishes the perception that European law is complete. As a consequence, a genuine engagement with Islamic law becomes problematic as every encounter is drawn onto the terrain of the orientalist narrative. A critique which is based on superiority and political power, rather than on scientific inquiry, must be flawed. Given the importance of the Islamic world in general, and the Middle East in particular, to international peace, this flawed critique merely adds one more obstacle to meaningful discourse and debate. The critique then becomes entangled with Islamist discourses, through which mirror images of European and western law emerge.
In my view, the search for a legal system which will enhance human rights and dignity is a universal search in which no one culture has a privileged starting point. The existence of conceptions of human rights, equality and non-discrimination within legal cultures is dependent on our reading of their narratives. In this process of reading, Western power has the ability to command attention, through its influence in global intellectual life and communications. This power to command attention, should not obscure the essentially constructivist nature of Western texts which assert Western superiority. Quite apart from enframing non-Western legal systems within the orientalist gaze, the narratives of the West are themselves imprisoned within a narrow provincialism masquerading as universalism. As Islamic law clamours for attention considerations of theory and politics justify a review of the contending narratives. Globalism offers a chance to challenge the constructions of the colonial past.
Islamist movements are contenders for power in most Arab countries. Despite differences in political programmes and strategy, the unifying demand of these movements is the implementation of Shari'a or Islamic law. Within the West, Islam has been painted in lurid colours for most of its thirteen hundred years of existence. In Western modern popular culture Islam is presented as a particularly violent and cruel religion.[ For a contemporary discussion of the relationship between Islam and the West, see Akbar S. Ahmed, Postmodernism and Islam, London: Routledge, 1992.] The adjective, fanatical, is frequently used to describe it. This is the culmination of a Western cultural relationship with Islam, which at least since the Crusades, has seen it as the 'religion of the Sword.' Islamic law is presented within Western popular culture, as the repressive element of this cruel religion. Undoubtedly in the popular mind Islamic law is linked to two images: the application of the punishments for certain crimes (huddud) [ Islamic law has three categories of crime, huddud, jinayat and ta'zir. The first comprise a series of offences, which carry a strict penalty which must be applied and is therefore not subject to any discretion. There are six such offences, sariqa (theft), haraba (rebellion or highway robbery), zina (fornication), qadh f (unproven accusations of fornication), sukr (intoxication), and ridda (apostasy). The fixed penalties for these offences which include public stonings, whipping, amputations and executions receive a great deal of public attention. The other categories deal with murder and bodily harm (jinayat) and discretionary offences (ta'zir).] including the amputations of arms and legs and public stonings; and the oppression of women. Western academic accounts of Islamic law, while not so lurid, tend to construct a view of Islamic law as aberrant and backward if sometimes, exotic.
There are good reasons for analysing the Anglo-American construction of Islamic law in the context of Egypt. [ For analysis of the roots of the current legal system in Egypt see, Enid Hill, Mahkama! - Studies in the Egyptian Legal System, Courts and Crimes, Law and Society, London: Ithaca Press, 1979 and Farhat J. Ziadeh, Lawyers, The Rule of law and Liberalism in Modern Egypt, Standford: Hoover Institution, 1968.] Egypt is not only the largest Arab country, but it is also a centre of Islamic jurisprudence as the home of the Al-Azhar University. Egypt has also been the soil which has nurtured modern Islamist politics with the foundation of the Muslim Brotherhood in 1928. Egypt's relations with the Western imperial powers is a long and complicated one. The nineteenth century began with the Napoleonic occupation and ended with the British Protectorate. Despite its formal position as part of the Ottoman Empire, the country saw the establishment of large Western foreign communities throughout the nineteenth century. These communities (or colonies) were the bridgehead of Western influence which closely guarded their commercial and national interests. British influence, which became paramount after 1882, remained pre-eminent until the 23 July Revolution of 1952 which resulted in the coming to power of Gamal Abdul Naser. This historical context continues to influence the encounter between the post-Cold War West and Islamist movements.
The representation of Islamic law both in popular culture and academic literature in English is redolent with colonial idioms, rooted in the orientalist project, and in particular is reliant on the theory of oriental despotism. I am indebted to the work of Edward Said in approaching the question of orientalism which he has explored in Orientalism (1978) [Edward Said, Orientalism, supra n.3.] and more recently in Culture and Imperialism (1993).[ Edward Said, Culture and Imperialism, London: Chatto & Windus,1993.] The former book has had a profound impact upon both cultural studies and most disciplines connected to area studies of the Middle East, North Africa and South Asia. For Said:
"The Orient is an integral part of the European material civilization and culture. Orientalism expresses and represents that part culturally and even ideologically as a mode of discourse with supporting institutions, vocabulary, scholarship, imagery, doctrines even colonial bureaucracies and colonial styles." [Edward Said, Orientalism, 2.]
I have taken elements of this methodology which were developed largely in relation to literature and applied them to the construction of Islamic law in English texts. [Said's work has provoked much controversy for a summary of the debate see: John M. MacKenzie, Orientalism, History, Theory and the Arts, Manchester and New York: Manchester University Press, 1995, 1-19; and Bill Schwarz, "Conguerors of truth: refelctions on postcolonial theory," in Bill Schwarz (ed.) The Expansion of England, London: Routledge, 1996, 9 - 31.] I argue that secreted within the works of scholars and colonial administrators a legal orientalism emerges which sustains Said's thesis that 'European culture gained strength and identity by setting itself off against the orient as a sort of surrogate and even underground self'. [Edward Said, Orientalism, 3.] In the field of law, the texts nourish what Said calls a 'sovereign Western consciousness'. The purpose in this exploration is the attempt to reflect on the engagement between Western and Islamic legal systems, as revealed through textual constructions, while keeping the texts within the purview of historical developments and contemporary political dynamics. In proposing this course I am aware that I could be treading an uncomfortable theoretical path between apparent textual deconstruction and apparent critical realism. This unsatisfactory situation arises in part from Said's incomplete reading of Foucault which forms the basis of his methodology in Orientalism. As Young has observed:
"Foucault had a lot to say about power, but he was curiously circumspect about the ways in which it operated in the arenas of race and colonialism. His virtual silence on these issues is striking. In fact Foucault's work appears to be so scrupulously Eurocentric that you begin to wonder whether there isn't a deliberate strategy involved." [ Robert J. C. Young, 'Foucault on Race and Colonialism,' New Formations, No. 25 (1995), 57 - 65, at 57.]
As Young points out it is a paradox that Foucault's work has become the basis for postcolonial analysis and for Said's pioneering work. [Edward Said says "I have found it useful here to employ Michel Foucault's notion of discourse, as described by him in The Archaeology of Knowledge and in Discipline and Punish, to identify Orientalism." See: Said, Orientalism, 3.] This paradox, together with the problematique associated with the textual deconstruction of historical and cultural narratives, assigns us a theoretical task. On the latter point, Douzinas and Warrington, following Derrida, are helpful:
"Taking the text (not necessarily merely the mean Writ-ten of particular forms, but of course including other texts which provide necessary contexts such as the historical and the economic etc., the fact that texts necessarily consist of the combination and reintegration of reiterated fragments) is frequently the way analysis must start, if only because there is nothing else." [ Costas Douzinas & Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, New York: Harvester Wheatsheaf, 1994, 243-244.]
This is a good starting point for the analysis of the Western texts, but I want to reserve my position on its applicability to Islamic texts.
In the West, where there is a rising crescendo of rhetoric which attacks Islam and the Arab world, 'Islamic fundamentalism' has become in some circles a replacement for the threat of communism. [ See: John L. Esposito, The Islamic Threat: Myth or Reality?, New York and Oxford: Oxford University Press, 1992.] I will not be using the term 'fundamentalist' which is in origin a Western appellation for Protestant Christian movements in North America and seems particularly inappropriate in coming to grips with Islamic movements in the Middle East. I will be using the term, Islamist to refer to radical Islamic movements. [ For an exploration of these issues, see Armstrong, Badawi and Magonet, 'Jews, Christians and Muslims living together in a pluralist Western European Society,' Jewish Quarterly No 148 (Winter 1992-3) 35. The term fundamentalist has an implication of a return to a particular historical foundational text or moment, whereas the movements I am talking about are product of contemporary circumstances with programmes which arguably are in some senses modernist, see: Youssef M. Choueiri, Islamic Fundamentalism, London: Printer Publishers, 1990.]
Law plays a critical role within Islamist movements as a matter of theoretical concern and also most importantly perhaps, as the leading programmatic demand, the implementation of shari'a, a demand which unites often conflicting Islamist organisations. As Chibli Mallat has observed, "the concern of the Islamist advocates has primarily taken a legal form." [ Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as Sadr, Najaf and the Shi'ite International, Cambridge: Cambridge University Press, 1993, 1. This work is an important contribution to Islamic jurisprudence, although a detailed consideration of it is outside the scope of this paper.] Indeed for Mallat, Islamist politics has been determined by the theoretical output of the Najaf law schools of southern Iraq, which have been the international Shi'a centre of Islamic renewal. It was in Najaf that under the inspirational leadership of Muhammad Baqer as Sadr that the theoretical foundation for the Iranian Islamic movment was created in the 1960's and 1970's. The impact of the subsequent Islamic Revolution in Iran on world politics has created a major debate on the role of Islam in world order. To some observers Iran and Islamist politics are inextricably linked. Mallat argues that 'at the heart of the renewed interest in Islamic thought world-wide, is without doubt the success and durability of the Islamic Revolution in Iran'. [ Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as Sadr, Najaf and the Shi'ite International, Cambridge: Cambridge University Press, 1993, 5.] This is true for scholars and other observers in the West, but the Iranian Revolution has had a more contradictory impact on the Islamic world. It is important to take into account the fact that Islamist movements are far more pluralist and diffuse. In addition rivalries between them mean that Islamist movements are rarely united, let alone a conspiratorial force. Mallat's proposition is that without the Iranian revolution there would be no significant Islamic movement today and that without the Najaf Law Schools there would have been no Iranian Revolution. Without underestimating the influence of the Islamic revolution, its role has had some contradictory aspects. Mallat is correct to point out the pivotal role which law plays in the current Islamic revival. The Iran revolution marks an important moment in the development of the current Islamist movement, although it can be argued that the Iranian Revolution has been an impediment to the development of Islamist movements in the Arab world. [ There are two exceptions to this which are Iraq and Bahrain both of which have Shi'a majority populations although are governed by Sunni elites.] There are several inter-linked reasons behind this argument. First, Iran is a Shi'ite country, whereas most Arab countries, with the exception of Iraq and the sui generis position of Lebanon, are overwhelmingly Sunni. Second, Iran, as a Persian power, is seen as outside the framework of Arab politics. Its attempts at spreading the "Islamic Revolution" can therefore be presented as an interference in the affairs of the Arab world (a point that many Arab leaders, including President Hosni Mubarak, never tire of lecturing the Islamists of their own countries). Third, the long Iraq-Iran war created a great deal of Arab solidarity with Iraq against Iran. Fourth, and perhaps the most important issue, relating to the character of the Shi'ite/Sunni [ Islam divided into two main trends over the succession and role of Ali (656 CE), the majority the Sunni (derived from al-sunna [the tradition]) first accepted the caliphate of Ali but then rejected him and his successors. The murder of Husayn at the Battle of Karbala (682 CE) sealed this division, the term Shi'a derives from shi'at Ali, the partisans of Ali. Today the vast majority of Muslims are of the sunni trend with about 10% adhering to the Shi'a, mainly in Iran, Iraq, Lebanon and Pakistan, although there are communities throughout the Islamic world.] split, is the fact that Iranian Islamism is a clerical movement, whereas most Arab Islamist movements are largely anti-clerical. [ This process may well be in the process of changing, as one of the effects of the current policy of the Egyptian government has been the promotion of the official clergy through the mass media as means of gaining Islamic credibility in the face of the Islamist threat. This has a contradictory effect of promoting the role of the clergy in society. What remains true is that the focus of much hostility amongst the Islamist groups is towards the official clergy who, as a whole are held to be corrupt, and this is proved by their collaboration with the secular government.] These factors could be said to combine to retard the development of Islamism within the Arab world and this can be seen particularly in Egypt.
Shari'a
Islamic law (shari'a) derives from the Qur'an and from the sunna. The Qur'an is regarded by Muslims as the divine revelation from God, through the Angel Gabriel, to his last prophet Mohammed (c. 570 - 632 CE). [Non-christians feel more comfortable with these terms.] Muslims believe that the Qur'an is a sacred text which contains the basis for all aspects of life. The sunna comprises of the traditions of the Prophet and his companions that elaborate the jurisprudence contained within the Qur'an. Islamic law was developed from the systematic application of the principles of the Qur'an and the sunna by leaders of the Islamic communities which were established in the first two centuries after the hijra [622 CE]. In these two hundred years, Islamic jurisprudence (usul al-fiqh) developed with a particular juristic system of legal norms (furu' al-fiqh) , which permitted a living legal system covering all areas of social regulation, in Western categories, from criminal law to family law, from constitutional law to public international law. From the Islamic standpoint, Islamic law is a system of regulation that stems from human political authority but is itself created by God. In a sense, duties to other human beings, whether your equal or political superior, constitute a duty to God. Law is thus perceived as constituting an integrated part of social organisation and is not seen a separate branch of human activity. Law, both as jurisprudence and as a normative system is an articulation and an expression of God's will. As a consequence, within the Islamic outlook, it is difficult to conceive of a secular state or a secular legal system. There is a central debate within Islamic jurisprudence on the character of the conditions under which shari'a can be introduced. There are those who argue that this is only possible within the context of a thoroughly Islamic society, such as the Prophet established in Medina in the seventh century (CE). Others regard such a proposition as idealised and put forward a twentieth century Islamic state as a model.
The development of both usul al-fiqh and furu' al-fiqh took place through the deliberations of the leadership of the Islamic community (al-ulama) , who would issue texts and opinions (fatwas) as well as review the day to day activity of judges and administrators. It is indeed through the activity of the ulama that ijma or consensus is achieved which is the necessary condition for the formation of legal principles. Islamic legal discourses are thus found within the texts and certainly no positivist legal code. Thus the development of Islamic law itself has been subject to historical processes which have given rise to distinct discourses which have in turn produced different schools. Broadly speaking there are significant differences between the sunni and shi'ite legal traditions with special currents of opinion within each. These essentially turn on the role that the clergy play in society as a whole and in particularly the elaboration of law. Amongst the majority sunni branch there are four well acknowledged schools; the Hanafi school of Baghdad (named after abu Hanifa [700 - 767 CE]), the Malikite school of Medina (named after Malik ibn Anas [710 - 795]), the Shafi'ite school (named after Mohammed al-Shafi'i [767 - 820 CE]) and the Hanbalite school (named after Ahmad ibn Hanbal [780 - 855 CE]). Amongst the Shi'ites, there are three main schools, the largest of which is the Imamiya; the other two are the Zaydiya and the Isma'ilya Shi'a. This diversity of traditions and interpretations should be born in mind when thinking about the nature of Islamic law.
However, Western students of Islamic law should be wary of merely looking at the sociological or historical classifications of schools of juristic thought. It is necessary to take in account that its religious character endows it with legitimacy. For a Muslim, shari'a is the application of divine will and as Abdullahi Ahmed An-Na'im reminds us,
"To Muslims, Shari'a is the "whole Duty of mankind", moral and pastoral theology and ethics, high spiritual aspiration, and detailed ritualistic and formal observance; it encompasses all aspects of public and private law, hygiene, and even courtesy and good manners." [ Abdullahi Ahmed An-Na'im, Towards an Islamic Reformation, Cairo: The American University in Cairo Press, 1992, 11.]
Thus one of the special characteristics of Islamic law is that it constitutes an existing system of sacred law in the contemporary world. It is in this that much juristic work needs to be done in order to understand both the roles of shari'a within Islamic societies and in its contribution to the wider international legal community. The Islamists understanding of the role of law constitutes a serious challenge to much of what we might call the Western jurisprudential lineage.
Law in the orientalist gaze
Within the European world, Islamic law has been studied as integral to the orientalist project. Orientalism, as an area of academic interest grew alongside colonialism and to some extent served it by providing both an apparent store of positive knowledge and a series of ideological explanations of the culture and societies of the occupied lands. It is only relatively recently that (Western) jurists have taken a specific interest in Islamic law. Within the orientalist lineage it has been largely seen as a branch of history, administration or general Islamic studies. Indeed the leading text, which has had so much influence on current thinking, Introduction to Islamic Law by Joseph Schacht [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964.] is a case in point. The interesting aspect of this work and of most others in this field, is the methodological context in which Islamic Law is presented, (or more accurately constructed) and then defined, (or confined). In setting the scene, Schacht tells us;
"[t]he Arabs were and are bound by traditions and precedent. Whatever was customary was right and proper; whatever the forefathers had done deserved to be imitated. This was the golden rule for Arabs whose existence on a narrow margin in an unpropitious environment did not leave much room for experiments and innovations which might upset the precarious balance of their lives." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
It should be noted that this passage is not written only in the past tense. What he is saying of Arab society at the time of the Prophet is also true of Arab society in the age of nuclear weapons. This underlines the fact that orientalism is a tool of social explanation which has a current purpose in structuring the relationships between the West and the East. It is also noticeable how Schacht writes of traditions, customs and precedents. These are presented as essentially Arab. Yet he is writing against the background of the United States of America, which possesses a legal system which in many areas is based on the common law, whose whole basis is precisely tradition, custom and precedent. Schacht, however, does not reflect on this paradox, quite to the contrary he regards reliance on precedent as being the hallmark of Arab society; "[i]n this idea of precedent or sunna the whole conservatism of the Arabs found expression." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
Schacht builds the case for the sunna as the barrier to adaptation or modernisation, seeing it as the means for undermining anything new within Arab society; "The idea of sunna presented a formidable obstacle to every innovation, and in order to discredit anything it was, and still is, enough to call it an innovation." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
Schacht, has to deal with the contradiction that Islam itself was a revolutionary intervention into Arab Society which destabilised the very conservatism of the Arab society which he has described. Given his views it is very difficult not only to understand the emergence of Islam in the Arabian peninsular, but its rapid expansion throughout the entire Arab world in the matter of decades. All that Schacht can bring himself to say is that, "Islam the greatest innovation that Arabia saw, had to overcome this obstacle, and a hard fight it was." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]
Without any explanation as to how it was overcome Schacht rationalises that "the old conservatism reasserted itself; what had shortly before been an innovation now became a thing to do, a thing hallowed by precedent and tradition a sunna." What Schacht omits to explain is how the new norms, the 'innovations' have come to be accepted. He sees rather ''this ancient Arab concept of sunna" becoming "one of the core concepts of Islamic law." In other words, he notes that Arab society adapts past culture forms of law-making to radically new conditions. This process is common in the legal history of many societies in the wake of revolutionary change. The English common law for example has been adapted from its feudal form to modern industrial society. The important contents of the legal system, its norms, have changed radically. This was also the case with Arab society in the seventh century. The Prophet Muhammad and his companions, in an effort to transform and enlighten their society (and the world), harnessed previous customs and practices to this task, whilst endowing them with new meanings. Schacht, however sees only Arab society in a one-sided way. A priori it is conservative. Despite the revolutionary upheaval caused by the coming of Islam, which overthrew the political elite and Arab society quickly reasserted its true nature by employing the method of the sunna. This Arab society is regarded as being essentially rooted in conservative and backward looking practices. Its legal system will therefore necessarily reflect this, acting as a form of regulation to both hold back the development of society and its adaptation to historical processes. In other words the nature of Arab Society and its legal system is to act as a barrier to the modern world. Arab society becomes a preserve of the exotic and the aberrant, a historical theme park. The orientalists also seek to narrow the preserve of Islamic law. Schacht makes it quite clear that he is using the concept of law "in the narrow meaning of the term:"
"Worship and ritual, and other purely religious duties, as well as constitutional, administrative and international law have been omitted, the first because they developed under different conditions and in close connection with dogma, the second on account of its essentially theoretical and fictitious character and the intimate connection of the relevant institutions with the history of the Islamic states rather than with the history of Islamic law." [Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 112.]
This passage is noteworthy as constitutional, administrative and international law are regarded as being "theoretical and fictitious." These branches of law, even within western discourse, have their sceptics, and any student of the British constitution would be forgiven for thinking that it is essentially "theoretical and fictitious." Indeed it would be impossible to study it at all without grasping the "intimate connection of the relevant institutions of the [British] state." However, study of British constitutional law is quite widespread, as is administrative law and Western perceptions of international law. Schacht's arguments have the effect of de-legitimising the contribution of Islamic jurisprudence in these fields. It is interesting that he selects for exclusion those areas where Islamic law would define state power and regulate international relations. In discussing substantive law Schacht largely confines Islamic law to personal status and criminal law. In these areas the habits of a conservative, albeit exotic, society can be portrayed picturesquely, but without any threat to the legitimacy of the power of Europe. Thus in Said's terms a "strategic location" creates a sense of 'referential power.' Schacht achieves this by reducing of the scope of Islamic law through excluding the fundamental issue of power and authority. In concert with orientalists of the eighteenth and nineteenth centuries he commands the ultimate power to construct what Islamic law will be. [ For a development of this view see: John Strawson, Islamic Law and English Texts, Law and Critique, Vol. VI No 1 (1995), 21-38.]
In the field of public international law, there is a widespread belief that it is entirely of Western pedigree. Rebecca Wallace, claims that the "international system is of recent origin," and that it "stems from the rise of the secular sovereign state in Western Europe." [ Rebecca M M Wallace, International Law, London: Sweet & Maxwell, 1992, 4. Similar views are found in most texts on Public International Law.] Similar views are found in most texts on Public International law. This is so commonly held that even Butros Butros Ghali, Secretary General of the United Nations (and former Professor of Public International Law at Cairo University) can write about the "great project of international law that began with Grotius over three centuries ago." [Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).] Yet in the eighth century of the Common Era, Islamic jurists had produced al-siyar, juristic texts which dealt with issues which Europeans, at a later date, came to call international law. Al-Shaybani's siyar, [ See: Majid Khadduri, The Islamic Law of Nations, Shaybani's Siyar, Baltimore: The John Hopkins Press, 1966.] for example, was written by the end of the eighth century (CE), some eight hundred years before Grotius set pen to paper. Al-Shaybani's text contains detailed codes on the Law of War, the law of occupation, the law of treaties and diplomacy and the rights of foreigners. In passing it has much of interest to those concerned with the legal protection of the environment. Many of Al-Shaybani's propositions on the Law of War, would not seem unfamiliar to the modern student of international law. However, Schacht's relegation of Islamic international law to "fiction," is reflected in the main texts on Public International Law in the West. Western power successfully projected the image that, along with the motor car, it too invented international law.
Yet, the well known article 38 of the Statute of the International Court of Justice which states that the "law of civilised nations" is a source of international law, introduces some ambiguity to this claim. Discarding the colonial phraseology of this article, and reading it as "major legal systems of the world," Islamic Law has as much claim as any other system to be included. Indeed this is underlined by the decision of the International Law Association which has established a committee to discuss the role of Islamic Law within International Law on the grounds of the "need for understanding and dialogue between different intellectual and religious traditions which bear on international law and relations." [ See: International Law Association, Report of the Sixty-Fifth Conference [1992],Cairo: El-Fania, 1993, 4.]
However, Schacht was not alone in regarding Islamic international law as in some way defective. Even Majid Khadduri, the translator of Al-Shaybani's Siyar can explain the conditions that have made possible "the integration of Muslim states into the modern community of nations." His argument [Khadduri, Islam and the Modern Law of Nations, 1956 American Journal of International Law Vol. 50, 353-372 at 358.] is indeed an account of the systematic subjugation of Islamic international law accompanying the political and military defeats of the Ottoman Empire. According to this conception Islamic law is not so much a source of international law, but a changed discourse which met Western criteria of the 'modern law of nations.' Schacht's perception of Islamic international law as a "fiction" rested on two hundred years of its exclusion by European powers. In the great historical wave of this western narrative, the idea of Islamic International law gains grudging acceptance only at the moment of the decline of the power which gave it meaning, the Ottoman Empire. Thus the centuries of al-siyar are enframed within the relatively new Western international law.
When orientalists turn their attention to constitutional law issues, albeit in a historical context, we can detect further subtle forms of the undermining of Islamic legitimacy. Coulson, in his History of Islamic Law, [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964.] insists on analysing the legal basis of Ummayyid and Abbasid states by reference to the constitutional contribution of the European Enlightenment. For example, of the Ummayyid state, (which ceased to exist in the Middle East and North Africa in 750 CE), he says it "was not based upon any firm separation of the executive and the judicial functions." [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964., 120.] Writing of the Abbasid dynasty which lasted until 1258 CE, we are told, "the shari'ah courts never attained that position of supreme judicial authority independent of political control, which would have provided the only sure foundation and real guarantee for the ideal of Civitas Dei." [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964., 121.]
It is extraordinary that centuries before the European Enlightenment, let alone a thousand years before the American revolution, Coulson thinks it appropriate to apply rule of law doctrines, such as the separation of the powers and the independence of the judiciary, to his analysis of Islamic government. During the same period it would be quite inappropriate to analyse European legal systems from that standpoint. Both Coulson and Schacht were writing in the 1960's. Both were committed orientalists and genuine scholars attempting to bring Islamic law to the attention of Western intellectuals and students. They were also writing before a serious debate about the ideological nature of orientalism had begun. My argument is that the significance of their work is the way in which they represent Islamic law. The problem with seeing it as conservative, aberrant and to be kept out of power-defining relationships (constitutional and international Law) is that the whole is therefore represented as a defective legal system. This representation makes any genuine comparative discourse very difficult. From the beginning, in any comparison, Islamic law will not stand the test against fully-developed Western Law.
Mayer continues this methodology into the 1990's in her, Islam and Human Rights. [Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder Co.: Westview Press, 1991.] Mayer is aware of the debates about orientalism and understands the need to approach Islam in a sensitive manner. She understands that issues of Islamic law need to be studied in the context of Middle Eastern politics. Whereas scholars of Schacht and Coulson's generation could avoid these issues, Mayer knows that they must be addressed. She refers to Said's critique of orientalism at any early stage. However, she adopts the curious view that it should not be extended to law, "Said's idea of orientalism, is not a concept developed for application to the field of Law or for evaluating whether governments of nations are adhering to international legal norms." [Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder Co.: Westview Press, 1991, 10. Mayer has removed this sentance from the seond edition of her book, although she has not changed her views, as she argues, "Although Said is not a lawyer and did not analyse legal scholarship, people influenced by his arguments tend to expnd them to include legal scholarship, although Said did not assert that all critical examination of Islamic institutions is infected by Orientalist biases, his disciples seem inclined to draw this inference." See: Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder and San Francisco: Westview Press, 1995, 7.] Mayer, as we shall see, is so wedded to this positivist approach that she appears more concerned with Said's focus, literature, than with his methdology.
Legal Orientalism
In Orientalism, Said does not deal with law in particular. He does, however, in passing comment on the contribution of William Jones, "Jones' official work was the law, an occupation with symbolic significance for the history of orientalism". [ Said, Orientalism, 78. Said's point is rather understated as it was in fact though the work of Jones that the British orientalist tradition in law began. From the late eighteenth century onwards it was under his direction that the major translations of Islamic law texts took place, Hamilton's, Hedaya, London: T. Bensley, 1791, Jones's own Al-Sirajiyah, Calcutta: Joseph Cooper, 1792 and Baillie's Sara'i al-Islam (1792). It is through the presentation of these works to an English audience, at the time largely composed of colonial administrators, that the superior framework of English law is erected to analyse the worth of Islamic law.] Indeed, Said reviews many of the canons of Orientalism, most of which contain substantial contributions on law. The great classic work by Edward Lane, Manners and Customs of Modern Egyptians [ Lane's work was first published in 1836 and appeared virtually unchanged in various editions up until 1895. References in this paper are from this edition which has been reprinted by East-West Publications, London, 1978.], not only has chapters devoted to law and government, but refers to legal issues throughout the book. Lane was not alone and the major works produced on Egypt, including De Leon's, The Khedives's Egypt [ Edward De Leon, The Khedive's Egypt, London: Sampson Low, Marston, Searle & Rivington, 1877.], Milner's, England in Egypt [ Alfred Milner, England in Egypt, London: Edward Arnold, 1892.], and Cromer's, Modern Egypt [ The Earl of Cromer. Modern Egypt, London: MacMillan, 1911], all deal extensively with law, including Islamic law. Milner's approach to law is clear, in writing about the 'Native Courts' he says
"the Native Courts already administer a European system of law. If their personnel can be so improved as to justify the assertion, that not merely the law they administer, but the spirit by which they are animated, is up to the standard of European ideas of justice." [ Milner, (1892) 350.]
If the judges of the Native Courts are to be able to do their job, they need not just know the law but they need to be motivated by "European ideas of justice." This is a common theme in all the main works. European concepts of law and justice are the true standards. This is a recognition, at the official level, that the task of the colonial project is the 'Europeanization' of the population.
De Leon, for example, writing even before the British occupation, is impressed with some of the Khedive's reforms because his "native ministers" are men "imbued with the European culture." Milner, however, is concerned with the manner of the reception of European institutions and legal ideas. He thinks that it is "the besetting sin of Orientals, when attempting to copy European institutions, that they do so without a sufficient regard to the differences of conditions." [ Milner, (1892) 327.] This line of argument leads to one conclusion, that only Europeans can oversee the successful transmission of such ideas and institutions. Sir William Hayter, a British appointed Legal Advisor to the Egyptian government, underlines this attitude:
"If an Egyptian government can provide regular and peaceable administration for Egypt, so much the better; but, if not, it as certain as anything can be that some Power or group of Powers will be obliged to intervene to restore order. Bulgaria or Greece may be allowed a revolution or so without interference, but not Egypt." [ Sir William Hayter, Recent Constitutional Developments in Egypt, Cambridge: Cambridge University Press, 1924, 12.]
In a practical way, the legal branch in Egypt, as in India, was to provide a cadre training experience for politicians. It is noteworthy that six out of seven Prime Ministers of Egypt, in the ten year period from World War I to the early 1920's, had been judges in the Native Court of Appeal. [ There are many interesting aspects of the application of British colonial experience in India to the situation in Egypt. In some cases administrators, (e.g. Sir John Scott, the Legal Adviser) served in India before holding office in Egypt. The British experience of adapting Islamic law to colonial requirements began in India in the late 18th century and one can surmise that this had its impact on the administration of law in other territories.] This strong relationship between law and politics in the functioning of colonialism provides an important context in analysing orientalism. This also demonstrates that Mayer's strictures that Said's Orientalism excludes law and is mainly confined to 'anthropology and philosophy' would seem to be erroneous. Mayer is content to create a modernist model for the evaluation of Islamic Law. For Mayer all law can be divided into pre-modern and modern.
This has the appearance of a transcultural approach, as the characterization of legal systems is not strictly speaking located in culture but in time. Indeed she also speaks of European natural law as pre-modern. Islamic law is always pre-modern whereas European law, since the European Enlightenment, is merely European Law. This creates a hierarchy of legal systems in which European law can pass the modernist finishing post but Islamic law cannot. This adds to the view that Islamic law is incomplete and essentially defective. Indeed Mayer concludes her book with an explanation of her thesis that Islam contains a "culture based resistance to rights." This conclusion is rooted in the view of public international law, which we have seen before in the work of Schacht and others. "The principle of the supremacy of international law," Mayer writes, "is a given in the modern international order." [ Mayer (1991) 209]
For Mayer, Islamic law confronts the international legal order. It is not part of it, it is the 'other'. This raises a series of problems, not only for those concerned with a critique of orientalism, but for those concerned with the nature of international law. Public International Law is seen only in a positivist framework, with definite, undisputed, norms. Although Mayer and others insist that international law has sprung from a Western environment, as indicated earlier, the sources of international law are not necessarily Western. As a consequence there is no necessary opposition between Islamic law and international law. Indeed on the contrary, Islamic law is part of, a source of, public international law. By setting up her modernist model, Mayer effectively de-legitimises Islamic law and therefore, despite her awareness of the issues, sustains a methodology very much in the tradition of the scholars in the 1960's, who were themselves products of an orientalist lineage stemming from the eighteenth century.
Modernism
Islamic law is presented as incomplete and inadequate especially when compared to 'modern' European and, by extension, international law. The de-legitimising effect on Islamic law has its mirror image in the representation of European law as a complete, established and definite legal system, legitimate in all respects. This is what Said means by European culture gaining 'strength and identity by setting itself off against the Orient'. I have argued that with regard to international law, Mayer and others can be challenged from within its own jurisprudence. For European law as whole, it is necessary to consider carefully the implication that it is the legitimate system. Mayer is clear on the importance of the West in the creation of law:
"It was on these Western traditions of individualism, humanism, and rationalism and on legal principles protecting individual rights that twentieth-century international law of human rights ultimately rested." [ Mayer (1991) 44]
Like most other writers in the areas of international law and constitutional law, the break point is the European Enlightenment. This has been the basis for the development of modern European law. Mayer, takes to task many of the Middle Eastern regimes for not being based on democracy and pluralism. Her entire standpoint is 'western superiority'. The assumption that European law is a fully developed system is rather difficult to accept within the European world let alone the ex-colonial territories. This perception of the superiority of European law, as we have seen, is a common theme of administrators and scholars. In the nineteenth and early twentieth centuries the project was Europeanization. In the last decade of the twentieth century it is the promotion of human rights, democracy and pluralism. Defects within Islamic culture must be made good. My difficulty with this project is the character of the European experience. How precisely can Europeans claim this superiority, particularly in the fields of human rights, democracy and pluralism, when our entire societies have been founded on the systematic denial of these benefits to the population of the colonized world until well into the second half of this century?
The European systems of law have been used to imprison many who fought for these principles in the colonial world. The European age of the Enlightenment produced the American constitution that permitted slavery, and confined the vote to white male property-holders of the Christian religion. The western Human Rights movement even today is largely a male rights movement. European societies ( and here I include the United States) moved extremely slowly to extend the formal vote to women. Indeed France, the home of the Enlightenment, did not grant women the right to vote until after the Second World War.
In the West, the principles of democracy and pluralism appear to be a twentieth century phenomena. They were not the obvious 'civilised' systems of government for George Washington or William Gladstone. Indeed Europe for much of the twentieth century has been characterised by regimes which stood opposed to any conception of human rights, democracy or pluralism; German Nazism, Russian Stalinism, Iberian Fascism, and variants of these systems in Greece and Rumania are very much part of the European tradition. It is very significant that in the debate over the legitimacy of law under Nazi Germany, German law has found many a vigorous defender. One cannot but think this is the result of Germany being a European state and that the holocaust notwithstanding, it is its Europeaness that is important. Islamic law is oriental, and its orientalism is held against it.
The legal history of Egypt since the accession to the throne of Muhammad Ali in 1807 has been a struggle for and against the reception of European law. In part, this process was motivated by reformist and modernizing trends led by the Ottoman Porte, but its main imperative came from the commercial pressures of the growing European and American presence in the country. By the 1870's there were nearly eighty thousand foreigners living in Egypt, with about 60% of these living in the city of Alexandria. These 'colonies' were led by merchants who insisted on their right to resolve legal conflicts according their own legal system as applied by the consular courts under the capitulations. In the 1850's, Nubar Pasha proposed to change this situation so that the commercial interest would be brought within an Egyptian framework. The result of his work was the creation of Mixed Tribunals, which used French law and had a mixture of European and Egyptian judges. De Leon who was the American Consul at the time of the proposal considered the idea absurd. In 1856 in a cable to Washington he reported:
"Imagine a tribunal composed of several Moslems, two Christian Armenians, two Latin and two Greek Christians (every native Christian sect here bitterly hating each other) and add two Jewish Rabbis, and you would have the most striking illustration of the 'happy family' in the museums composed of the most uncongenial animals to be found." [ De Leon (1877) 302-3]
Having dismissed the proposal, he then explains that "I will never surrender those rights nor resign to irresponsible hands my high prerogative." [ De Leon (1877) 303] This reveals both the cultural and commercial values of the colonies. However, in the end, Nubar Pasha had his way and the Mixed Tribunals were established. [ The classic work on this subject is Jasper Yeats Brinton, The Mixed Courts of Egypt, New Haven: Yale University Press, 1968. A good survey of the work of these courts is contained in a more recent work, Mark Hoyle, Mixed Courts of Egypt, London: Graham & Trotman, 1991.] Fourteen foreign powers (including the USA) participated in the system. While undoubtedly the reception of French commercial law reflected a gain for European legal ideas, nevertheless, an astute Egyptian leadership had manoeuvred, in De Leon's words "to keep control in Egyptian hands." The attitude to Islamic law by the colonies was simply that so long as it did not interfere with trade it could be tolerated. De Leon notes that the majority of the population, 'the natives,' "are still subject to the old Egyptian judges and the old system which has the Koran as its basis." [ De Leon (1877), 312.]
Writing twenty years later, Milner refers to the "Old Koranic system, worked by the mehkemehs or courts of the Religious law, which are now mainly confined to dealing with the personal status of Mohammedans." [ Milner (1892), 324.] He is not impressed with this system, but comments, "The Religious Courts, full of abuses through they be, are yet hallowed ground upon which it has been thought unwise to suffer the foot of the Christian foreigner to intrude". [ Milner (1892), 325.]
These views are highly significant as they reveal the actual narrowing of the scope of Islamic Law within Egypt. In a sense Schacht's limitations of the scope of Islamic law reflect the realities of the colonial experience. Milner expresses this when he writes,
"Mehkemehs, or native Religious Courts. whose authority is now almost confined to the registration of land, and to matters affecting the personal status of Mohammedans, questions of marriage and inheritance being the most important." [ Milner (1892), 351.]
The colonial administration having removed the Egyptian state from its ability to decide its constitutional destiny, having been shorn of its own independent foreign policy and further ensuring that European law regulate all important commercial transactions, leaves 'native Religious' or Islamic Law with the rest. Necessarily the residual Islamic system is presented as defective.
Without supporting evidence, Milner informs his readers that these courts are "bywords for corruption" and proposes that the qadis [qadi (singular) means judge.] should be better paid and that they should "possess some knowledge of the general principles of law." The reader is to presume that 'general principles of law' means European law; it is so obvious to Milner that this content does not need to be stated.
Lane, in a much earlier account of these courts, does not dwell on their corruption, as much as the harsh punishments that they impose. In one of these he reports how a woman found guilty of apostasy is strangled to death and then thrown into the Nile. [ Lane (1895), 113.] He explains that in an earlier case this result was prevented by the intervention of the Europeans. Thus the representations of the activities of these courts are either of the corrupt or of the uncivilised. The implication is that similar practices do not take place within European systems of law and that European intervention assures the protection of humanitarian principles.
Lane's work is riveting as he observes Egypt through attempting to 'pass' as an Egyptian. He dresses as an Egyptian and lives in a typical area. He observes law along with other cultural forms, including superstitions, music, dancing, and games. His comments on law are thus combined with his collection of costumes and his famous engravings. This situating of law within the cultural sphere indicates the intensity of the contest between Europe and the Orient. As legal culture becomes an object of colonization, Islamic law has to be conquered. The inevitability of European victory impels Lane and others to record Islamic legal culture so that it can be placed alongside, the "serpent-charmers, and performers of legerdemain tricks," [ Lane (1895), ch. 20.] so that future generations will be able to visit it in a museum. In the meantime, the colonial administrators had to tackle the sensitive task of the conquest itself, which like the conquest of territory involved a series of manoeuvres.
The influence of European powers during the nineteenth century reshaped the scope of Islamic law by both narrowing its jurisdiction and through a process of modernizing the legal system and introducing European law. [ The history of this process is dealt with in a comprehensive manner in Elie Kedourie, Politics in the Middle East, Oxford: Oxford University Press, 1992.] In 1923, for example, Egypt adopted a constitution based on that of Belgium. In 1906 Iran had done exactly the same. Even within the Islamic world, by the time Kemal Attaturk came to power, the West had won the legal argument, Islamic law was backward and European law modern. The establishment of a secular republic in Turkey, and with it the abolition of the Caliphate, was a logical result of the pressure of the West on Islamic culture.
The pressures for modernization according to the European model is a theme of the period up until the 1952 Nasserite revolution. It is explored for example by Naguib Mahfouz in the Cairo Trilogy, when in the second volume [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992.] picnic food is turned into a metaphor for the choices before Egyptian society. At a picnic at the Pyramids, Kamal is offered by his sophisticated friends Husayn and Aida, ham sandwiches and beer. Kamal refuses to drink the beer or eat the ham, and is reproached by Aida for being a 'hanbali fundamentalist'. He continues with his refusal and keeps to his own diet. Husayn and Aida have a French background and symbolise the effect of the European penetration of Egyptian society. Kamal is more traditionalist and is shocked, but fascinated by the brother and sister - indeed he is in love with the sister. Kamal is curious that Aida and Husayn can offer the forbidden food given that their family keeps the outward appearances of Ramadan. Husayn replies,
"Isn't it strange that we know so little of our religion? What Papa and Mama know about it is hardly worth mentioning. Our nurse was Greek. Aida knows more about Christianity and its rituals than she does about Islam. Compared to you we can be considered pagans." [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992 Vol. II at 193.]
This represents the dilemma for Egypt. It is not just the state which becomes influenced by European ways, but parts of society too. As a scene it also demonstrates the divisions that have resulted within Egyptian society. The 1952 revolution actually confirms this process of Europeanization, through the adaptation of Egypt to European socialism. The colonial powers of Britain and France are merely replaced by the USSR and Yugoslavia.
Islamist Reactions
It is in this context that the Islamist reaction must be seen. A critical consequence of the Anglo-American construction of Islamic law is the destruction of the legitimacy of Islamic power within Islamic society and within the wider world. Confined to personal status, for those who want it, Islamic law can be tolerated. In resolving the big issues of the exercise of power, both in the fields of politics and economics, Islamic principles are replaced with European ones. As a consequence the campaigns by Islamists for the implementation of shari'a appear radical as the aim is the creation of a new basis of power.
This paper is not arguing that Islamic law should be considered as the model for law, nor that the Islamist version is benign. I am advancing the case for an engagement between Western and Islamic law which means the West transcending its superior vantage point. This is, in my view, not merely culturally and theoretically desirable, but is also a prerequisite for the creation of stable relationships between the West and the Islamic world. Nothing more destabilizes this relationship than continued attempts to de-legitimize these societies, particularly at a time when they face the threats from the Islamists.
The Islamists base themselves on their analysis that views the regimes as corrupt and that in theological terms they constitute a state of jahiliyyah, literally reactionary corrupt regimes which resemble the authorities in pre-Islamic times. For the Islamist activist, however, modern jahiliyyah is considerably more serious as it necessarily includes the rejection of the message of Islam.
This is the mirror image of the exponents of the completeness of European law. Islamist movements in Egypt can be divided into two broad types. The first is the reformists, in particular the Muslim Brotherhood, technically illegal but maintaining public offices, making statements and politically active through its alliance with other legal political parties, most recently with the Socialist Labour Party, [the Shukri faction]. The Muslim Brotherhood and its supporters seek to persuade the Egyptian government to introduce shari'a. The second type consistst of the 'revolutionary' groups who think that reformist attempts are doomed and direct violent action is required. This group goes under the name of al-Gama'at al-Islamiya (the Islamic groups or movements). There are in fact many different groups under this banner. In addition to the gama'a there is also al-Jihad, a smaller group which gained notoriety through the assassination of Anwar Sadat. At the time this group was associated with Sheikh Omar Abd al-Rahman. [ He was implicated in the World Trade Centre, New York City bombing, February 1993, and was convicted of offences relating to this incident in January 1996.] In the mid-1980's, however he became the main spiritual influence on the gama'a. There are many factions, however, and under the pressure of police and security action, they necessarily change their structures and names. For example, in 1993 there was some speculation that a movement, previously thought to have been crushed by the security forces, al-takfir wal-hijrah [ This name literally translates as migration from society. The members of this very purist group are encouraged to insulate themselves from the corrupting influence of society. For speculation on its re-emergence, see Al-Ahram Weekly, Cairo, No. 124 (July 8 - 14 1993).] had been resuscitated and may have been the organiser of a spate of attacks on civilian targets. Beyond these radical Islamic groups are student organisations and unofficial Mosques, which provide the recruiting ground for the al-Gama'at al-Islamiya. [ For an informed discussion on the current strategy of these groups see Nabil Abdel-Fattah, Al-Ahram Weekly, Cairo, No. 123 (June 30 - July 7 1993) and No. 124 (July 8 - 14 1993).]
The division between the revolutionary and reformist groupings revolves around the extent to which the characterisation of society as Jahiliyyah is applied. Sayyid Qutb, a key figure in modern Islamist history claimed that:
"The world is living today in Jahiliyyah. In every order than the Islamic order people worship one another. It is within the Muslim scheme alone that all people will be liberated from worshipping one another by worshipping God alone , to be inspired by Him and to obey Him alone." [ Barry Rubin, Islamic Fundamentalism in Egyptian Politics, London: MacMillan, 1990, 50.]
However the central question for the Islamists is the extent of the jahiliyyah. Does this characterization merely cover the regime? Does it include the bureaucracy and military? Does it include the clerical leadership? Or does it extend to society as a whole? [ For an exploration of these issues from an Islamist viewpoint, see Sayyid Qutb, Milestones, Delhi: Markazi Maktaba Islami, 1991. Qutb's positions have now been revised by the Muslim Brotherhood itself, but have common currency among the more revolutionary groups.] The answers to these questions will define the relationship of groups to the reformist/revolutionary divide. If the entire society and not just the government has gone over to a state of ignorance, then this can be the basis for attacks on civilians, for they are part of the problem, they have become apostates. Thus the most revolutionary of these groups form strong internal structures, not just for military but also ideological reasons. They need to ensure that they remain free from the infection of society in order to develop the basis for an Islamic renewal. For the reformist Muslim Brotherhood this analysis is far too extreme and if true would constitute a major set back for Islam, as believers would have been reduced from nearly a quarter of the world's population to handful of the faithful. For them, the problem is the government. The political tactic of the Muslim Brotherhood has been to campaign for the implementation of Islamic Law by Parliament. A major success for this strategy was scored by the Islamist reformists in 1978 when the Egyptian Parliament voted to establish a committee to review the existing law to ensure that it was in conformity with shari'a. Perhaps less pleasing to them was the conclusion the committee reached in 1982 that most laws were already in conformity with shari'a. Nevertheless this process of attempting to influence the state from within is summed up by Muhammad Ahmad Abu al-Nasr outlining the reformist strategy, "All we ask is that the authorities declare that they agree to implement the Islamic shari'ah. The actual implementation could begin gradually and quietly." [Rubin (1990) 34.]
In elections during the 1980's the Muslim Brotherhood made electoral Alliances with legal parties. In 1984, its alliance with the secularist Wad won 15% of the vote and in 1987 its alignment with the Liberals and Socialist Labour party gained 17%. [ The latest Parliamentary elections in 1995 were conducted in such circumstances that any attempt to use the results to evaluate the level of support for the Islamist forces would be superfluous.] Beyond these statistics the real change brought about by the Muslim Brotherhood has been to transform the atmosphere in Egypt where virtually all political currents emphasis their Islamic credentials. The newspaper, Al-Majallah commented on this in the early 1980's:
"Perhaps the greatest manifestation of victory for the Muslim Brotherhood is that all parties without exception, have placed at the top of their platforms the application of Islamic Law, whereas they all previously considered this demand to be 'reactionary', regressive and a mixing of religion with politics and politics with religion." [Rubin (1990) at 31 (October 14 1981).]
Since the death of Nasser, the Egyptian government has been through a major re-orientation. Under Sadat it moved away from the USSR and towards an accommodation with the United States. After the Camp David Accords Egypt became the largest recipient of aid from the United States after Israel. (Total aid to Egypt now makes it top of the world's league table of aid recipients.) To carry through this strategic reorientation the Egyptian government had to defeat the forces of the political left, who were opposed both to the foreign policy and its domestic economic consequences. During the 1970's Sadat made alliances with the Islamists, principally the Muslim Brotherhood, to defeat the left (including the Nasserites). This process brought the Islamist current to the centre of the political stage and placed them in a position to make demands on the government. Since the 1970's, under both Sadat and Mubarak, the products of these demands have become clear. Indeed, the 1971 Constitution states that "the principles of the Islamic Shari'ah are the principal source of legislation." The Islamist objection to this formula is for the obvious reason that it leaves plenty of scope for other sources of legislation.
However in many ways the Islamists have made themselves felt on daily life. Mosques have become free to broadcast prayers and sermons to the local population. Religious broadcasting now accounts for some 20% of all television output. Al-Azhar has become more influential in the politics of the country and its censorship policy is now a bone of contention with the government's own board of censors. President Mubarak regards Islam as so important that he makes of point of giving a major speech on the Night of Power (the most sacred night during Ramadan). His 1993 speech was a trenchant defence of Islam as interpreted by the government and an attack on the 'militants' of the al-Gama'at al-islamyia for the perversions of 'true Islam'. Within the government the Ministry of Waqfs (Religious Endowments) has become extremely influential. Large sums of money have gone into the building of new mosques and the government has attempted to take control of as many independent mosques as possible so as to reduce the influence of the Islamists. There is a paradox however in an essentially secular government attempting to outdo the Islamists in its adherence to Islam.
In the field of law, the reaction to the orientalist school has been led not only by the Islamists of the Muslim Brotherhood or the gama'a, but also by mainstream and establishment figures. Schacht's view of the limits of Islamic Law meets a response from Dr al-Tayyib al-Najjar, a former President of Al-Azhar University:
"It is a mistake to think that the provisions of Islamic Law cover merely the required modes of worship, that is prayer, alms giving, fasting and pilgrimage, or the prescribed legal punishments for certain crimes such as adultery, theft, drunkenness, libel, and highway robbery. The provisions of Islamic Law are not restricted to these matters. They cover all transactions that are required in life and necessary for people's happiness, security and stability. They also deal with people's personal, social and political affairs." [Rubin (1990) at 82 (Al-Ahram, July 5 1985).]
The issue arises therefore as to the exact scope of Islamic law in the modern world which will regulate the personal, social and political affairs in the whole society. The effect of colonial intervention and the Western influence within the Islamic world has created a breach in the historical development of Islamic Law, particularly in the public law field. It is this breach that the Islamists attempt to fill, by claiming to return to the fundamental principles of the Qur'an and the sunna. Whether their interpretations of the sources of Islamic law are correct or not, the search for them should be seen as a reaction to the impact of Western power and the systematic de-legitimization of Islamic law and values. For Omar 'Abd al-Rahman, "there are two parties; the party of God and the party of devil." He makes very clear what the values of the party of God might be when he explains:
"We do not believe in democratic ideas, nor do we believe in natural Law or the ideas of the French revolution. We do not believe in the principles of the Bolshevik revolution, nor the we believe in materialist capitalism. But we do believe in the way of the followers of the prophetic traditions. To us the Qur'an and the prophetic traditions are the authentic premise for our ideas and our way of life and death. This confirms what was said by our Prophet Muhammad "Two things I have bequeathed to you: The Qur'an and my traditions. If you adhere to them you will not stray." [Rubin (1990) at 48.]
For al-Rahman the response to the European denial of legitimacy to Islam and Islamic Law is to reverse the process by denying the legitimacy of European political and legal values. The Islamists have more in common with the approach of some of their Western detractors than they might think. This absolutist position reminds me of a view from another perspective altogether. Francis Fukuyama comments that "the historical process rests on the twin pillars of rational desire and rational recognition, and that modern liberal democracy is the political system that best satisfies the two." [ Francis Fukuyama, The End of History and the Last Man, New York: The Free Press, 1992, 337.]
Fukuyama demands that history requires modern liberal democracy, al-Rahman believes that it requires the Qur'an and the sunna. Both denounce cultural relativism and both hold this concept to be a 'European invention'. For Fukuyama the contest between Europe and Islam has been won providing Western leaders have confidence in their system. In particular, Fukuyama is critical of viewing liberal democracy as a concept that is bound by European or Western culture. Islamists similarly see the only solution for the future of humanity, as turn to Islam. Both approaches are universalist.
A New Encounter?
In early April 1993 Colonel Gaddafi of Libya announced that he was going to implement with immediate effect certain aspects of shari'a, namely the huddud punishments. His statements to the press emphasised the importance of punishing theft, especially state theft, and also adultery. Gaddafi has many times announced the imminent implementation of shari'a during his years in power.
This announcement drew an interesting response from the Egyptian Islamic writer Fhami Howeidi. He used the opportunity to attack both the West and some Islamists, (for which Gaddafi is a useful foil), for a one-sided view of Islamic law. He argues that Islamic law is about "mobilising all the potential for good towards true progress and the betterment of life." He is particularly scornful of the singling out of criminal punishments:
"as though God sent the Prophet Mohamed to convey to the people only a set of legal codes with which to punish criminals and adulterers. Such restrictions to the concept of Islamic Law only show the penal aspect of the system as the Islamic message were primarily directed at criminals and degenerates.... This pitiful image of Islam is an affront to Islam itself." [ Fahmi Howeidi, No To Islamic Law, Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).]
He continues,
"One cannot help but be dismayed when confronted by the persistence among political leaders and proponents of Islamic Law in ignoring its comprehensiveness and equity and in treating their societies as it were a collection of criminals who can only to deterred by fear and threat of the whip or the sword." [ Fahmi Howeidi, No To Islamic Law, Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).]
Howeidi's approach is by no means a tiny current amongst Islamists. However, such positions are difficult to maintain in the context of the rise of Islamist movements, which emphasise other aspects of the Islamic tradition. Within a jurisprudential perspective we are confronted with the problem of whether it is possible to reconcile sacred and secular legal discourses. Sheikh Muhammad Ghozali, a popular religious broadcaster in Egypt recently said in a court that, "A secularist represents a danger to society and the nation that must be eliminated. It is the duty of the government to kill him". [ Quoted by Yousef M Ibrahim, International Herald Tribune, London, August 19 1993.]
This comment came from the Sheikh during the trial of those accused with the murder of the secularist writer Farag Fodah. Ghozali it should be emphasised is not a member of the gama'a, or any of the other radical Islamist groups. Like Sheikh Gad al Haq Gad al Haq, the current rector of Al-Azhar, he believes that the separation of Islam from the state constitutes apostasy. It would be a mistake, however, to think that these Islamists speak only the language of the past. The current Islamist movement is very much a product of its times, and this can be seen in the discussion of women. For example Safnaz Kazem [Al-Ahram Weekly, Cairo, No 122 (June 24 - 30 1993).] talks about the veil as the dress of "liberation of women." Her arguments against separate organizations for women are not only based on an appeal to traditional Islamic principles about the indivisibility of humanity, but are also an appeal to humanistic solidarity in the face of imperialism. This anti-imperialist strain within Islamist ideology nearly dovetails with the socialist rhetoric of the immediate post-colonial phase. However the central issue of the relationship of Islam to the State undermines the experience of this period which was portrayed as yet another step along the road to modernization. For Islamic jurists, whether Islamist or not, this poses a serious dilemma as to how to deal with the secular state structure (and ideology) that was built during the post-colonial period.
Within Islamic jurisprudence there is a growing debate about these issues. Abdullahi Ahmed An-Na'im's Towards an Islamic Reformation is a significant contribution that concentrates on civil liberties, human rights and international law. An-Na'im sets out to apply the jurisprudential methodology of the Sudanese theologian Mahmoud Muhammad Taha. This rests upon an analysis of the Qur'anic revelations and how contractions resolved in the first two centuries of the Islamic era should be re-opened and resolved in a different way today. Taha was executed by the Sudanese regime for apostasy in putting forward such views. This fact confronts the non-Muslim jurist with an obvious problem. How are we to choose between the view of two positions both of which are presented as Islamic and yet one of which is also regarded by some Muslim authorities as being apostasy? An Na'im's work, however, suffers from its positivist methodology which has much in common with Mayer. Its great merit is the presentation in English of an Islamic juristic debate which itself offers an interesting encounter between Islamic and Western law.
Scholars in the 1950's and 1960's thought of Islamic law as of historical interest, yet the issues which its jurisprudence raise have re-emerged with the enhanced power of Islamic political regimes and movements in the last decade of the twentieth century. As it happens, Khadduri's schema of the adaptation of Islamic law to the 'modern law of nations' has become less tenable. In the fields of constitutional law and international human rights, it is also no longer possible to rest the case for a basically Western and secular system on the axiomatic positions, as Mayer does. A series of political and theoretical factors nourished the growth of the idea, among millions of people, that sacred law should be the basis of national and indeed global order. This adds another dimension to the insecurities which have become evident in the West with the modernist project. Within the Islamic world struggling with various aspects of post-coloniality, this is a response both to past colonial experiences and to the current 'new world order' framework. Religion has returned to the agenda of national and international societies - and their academies. Post-modernity, it seems, is a condition which requires re-engagements with discourses which the modernists had consigned to closure.
Edward Said warns us that "in our wish to make ourselves heard, we tend very often to forget that the world is a crowded place". [ Said (1993) xxiii.] This approach has been taken by some to argue that an appreciation of orientalism requires making space for other voices, the excluded colonial other. [See for example: Kevin Dwyer, Arab Voices - The Human Rights Debate in the Middle East, London and New York: Routledge, 1991.] This however assumes that we possess a discourse which can engage with the excluded. It underestimates the extent to which Western culture is itself colonial. Dirks approaches this issue with some deftness:
"If colonialism can be seen as culture formation, so also culture is a colonial formation. But culture was not simply some mystifying means for colonial conquest and rule, even as it could not be contained within colonised spaces. Culture was imbricated both in the means and the ends of colonial conquest, and culture was invented in relationship to a variety of internal colonialisms. Colonial theatres extended beyond the shores of tropical rivers and colonised spaces, emerging within both metropolitan contexts and the civil lines of colonial societies." [ Nicholas B. Dirks, Introduction: Colonialism and Culture, in Dirks (ed.), Colonialism and Culture, Ann Arbour: University of Michigan Press, 1992, 1- 25 at 3-4.]
Thus the adding of apparently new voices will, in all probability, turn into echoes. As Mitchell effectively argues, the Other becomes enframed within the western discourses, much as physical artefacts of other cultures appear in museums and exhibitions. [ See: Timothy Mitchell, Colonising Egypt, Cairo: American University Press in Cairo, 1988.] Mayer implies, but does not argue, that law is different, it is not part of culture but occupies a special place outside of it. She sees law as possessing an exclusive register. This positivism does violence to the concept of law. In scanning the issues of this paper it has become evident that law is part of culture and as such it is contested. The starting point for our enquiry into Islamic law is comprehending the character of contemporary culture as rooted in colonialism. Orientalism has constructed legal culture much in the manner that Dirks described. Reading legal cultures thus becomes a series of acts of engagement with internal and external colonialisms. In order to release Islamic law from the colonial exhibition we are obliged to demolish the walls of legal orientalism.
Comments:
John is one of the persons who had inspired me deeply. He is a great scholar and teacher. My life had changed because of him and this essay will illustrate to my readers why I have such a high regard to him.
Thank you, John.
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