This paper challenges a scholarly consensus that locates the modern state project of managing religious difference in a colonial past. This consensus derives from the anthropological and postcolonial critique of secularism, based in a study of late nineteenth century Egyptian legal history. I cast doubt on this origin story of law and religion, in which the reshaping and alleged disfiguring of indigenous sociality is attributed primarily to foreigners. Events and innovations that date to just before and after World War II undermine the foundational claims of this story. Among the most significant of these events and innovations is the entire domain of administrative law, which championed self-determination and was propelled by a small group of local elites—not unlike other anticolonial movements of the 1930s and 1940s. Anticipating the end of British influence, including the ouster of the British-backed monarchy, Egyptian jurists endeavored to create a new and authentic law for all Egyptians. That law was not a new constitution, but a civil code; they undertook one of the most rigorous revisions of civil law in modern legal history. It was that code that established the Islamic identity of the new republic. Furthermore, the convergence of nation and religion forged after the Second World War was an outcome specific to Egyptian nationalist priorities. Contrary to prevailing scholarly narratives, social stratification on the basis of religion as reflected in the positivist law of the nation-state was not a foreign imposition but central to indigenous elites’ visions for the new republic. To advance the argument of this paper, I foreground legal and political developments, including the changing landscape of nationality laws and the laws on personal identification, that date from the late-1920s through the mid-1950s. Egyptians during these decades laid the administrative foundations of the new republic, including the requirement that Egyptians belong to a Muslim or Christian community by law. I consider the anticolonial motivations of a famed jurist, Abd al-Razzaq al-Sanhuri, and military officer-turned-president, Gamal Abdel Nasser. Though united in their commitment to sovereign legal and political institutions, Sanhuri and Nasser held different visions for how to re-order Egyptian society. Sanhuri’s revision of the Egyptian civil code subjected shari‘a to a comparative legal science, setting a new standard in comparative law. It was under Nasser’s tenure that religion and nation would become indelibly linked in the republic’s administrative order.

Nineteenth-century Egypt was a laboratory of social and legal change. One experiment in this laboratory was the police interrogation (the ‘sin wā jim’). It became a crucial part of the larger criminal investigation (taḥqīq) in which evidence was collected and presented against criminal defendants. By the 1840s, the interrogation had already become part of the khedival administrative state’s larger search for truth (al-wuquf ‘alā al-haqā’iq), deployed to order nineteenth-century Egypt. This paper challenges traditional historiography, which considers the interrogation to have only entered the Egyptian legal landscape at the behest of colonial powers through ‘secular’ legal codifications that took place at the end of the nineteenth century. This paper also challenges a thesis that such colonial transplantations undid Ottoman Egypt’s traditional legal system that was predominantly governed by the sharīʻa’s adversarial scheme, a scheme in which the interrogation as a manifestation of an inquisitorial mode of adjudication did not play any significant part. The story presented in this paper, however, is not one that belabors an account of sudden, pointed disruption in which modern Egyptian criminal law was transformed at the end of the nineteenth century, and suddenly transmogrified through a colonial inquisitorial mode shaped under British Occupation and a New Criminal Procedural Code of 1883. Rather, the account that this paper gives is one that laboriously uncovers the siyasa (the state’s administrative policy) in nineteenth-century Egypt, and through it, traces the history of this one discrete aspect of Egypt’s modern criminal procedural law—the interrogation. To make this argument, this paper closely examines evidence from the historical records of various archives, including the Egyptian National Archives (Dar al-Watha’iq), Le Centre des Archives diplomatiques de Nantes, and the British National Archives. Based on this evidence, this paper, aims to shed light on why and how a khedival administrative state adopted and adapted the interrogation within newly erected police stations beginning in the 1840s, decades before the seeming avalanche of legal, ‘secular’ codifications that took place at the end of the nineteenth century. This paper, therefore, also challenges the existing postcolonial anthropological critique of disruption and rupture that came about through secularized, legal codification antecedent to the modernizing Egyptian state. Studying the interrogation in nineteenth-century Egypt also allows us to point to the birth of the individual not only in a new codified criminal law, but also as a scrutinized construct by an evolving modern administrative state.

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.