Abstract
This paper examines the history of moral regulation within modern Egyptian judiciary. It does so by assessing the influence that the Islamic practices of ḥisba and siyāsa have had on the modernization of the Egyptian legal system. Contrary to a prevailing scholarly view that sharīʿa was secularized in Egypt as a result of the importation of Western legal concepts, this paper recognizes the agency of local actors in the modernization of law and juridical institutions. The paper thus revises two common understandings in the legal historiography of modern Egypt: that religion and shari’a were relegated to the private sphere of family disputes and Western positive law replaced shari’a in public law matters.
Contrary to such understandings, this paper gives greater attention to state theory in Egyptian legal thought and practice as well as in Islamic law. These theories and practices importantly show that modernization did not entail abandoning shari’a, but bureaucratizing it. In this regard, the paper also contests the idea that identity politics explain the role of shariʿa and religion in Egyptian society and likewise legal modernization. Rather this paper considers other influential factors that explain these outcomes, which are rarely acknowledged in legal, historical, or anthropological scholarship. These factors include transformations in the nature of state authority and the bureaucratization of traditional shariʿa authorities including shariʿa courts and iftāʾ.
This paper will analyze legal cases, statutes including penal codes, and government memoranda focusing on the regulation of religious morality during the second half of the nineteenth century. The paper also examines how government actors, including justice minsters Muḥammad Qaḍrī Pasha and Hussein Fakhrī Pasha, entrusted with legal reform in Egypt, perceived the role of shariʿa throughout the process of modernization. Such actors are often seen by historians as fascinated by European legal and political thought. Categorizing these developments as “secularisation” after the Western model of governance is inadequate and likewise deprives Egyptians and their Islamic legal culture agency in shaping the foundational features of the modern legal system in Egypt. By analyzing these sources and the role of these actors, this paper shows that changes in the Egyptian state itself and its relation to society produced a set of legislations and legal institutions. These laws and institutions that differed from traditional Islamic legal institutions such as shariʿa courts, were not foreign to the Islamic legal culture of the country or indifferent to religion.
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