The paper offers a reading into one of the first recorded reactions of a kuttab-then-Azhar-trained scholar (al-Tahtawi, 1801-1873) to a 19th-century European governance system (France, 1820s). The scholar, Rifa’a al-Tahtawi, is widely celebrated as one of the main architects of the Egyptian Renaissance of the mid-1800s. After returning to Egypt, al-Tahtawi published his memoirs in a collection titled: Takhlis al-ibriz (1834). In it, one of the chapters is devoted to the French governance system (tadbir dawlat al-Faransis); the author wanted to describe this odd constitutional arrangement to his contemporaries in Egypt, and experimented with language. He struggled to convey his impressions because—he seems to suggest and his later biography confirms—language fails him. The text also contains a true Rosetta stone: a translation of the French Constitution of 1814. Comparing al-Tahtawi’s first account of the governance system, with his translation of the Constitution, and its original text in French illuminates the analysis. The sections of the chapter on governance where al-Tahtawi struggles point us to the areas that will be later occupied by the semiotics of positive law. What role did al-Tahtawi play in that? He appeared to be quite dismissive of this godless construction, especially in the lines of poetry that he cited at the end of his account of the French governance system in Takhlis al-ibriz However, after his return from France, al-Tahtawi became heavily involved in kickstarting (and shaping) the translation movement that structured 19th century (Egyptian) Arabic. The translation movement set the foundations for the construction of the system of signs of positive law in Arabic that is still currently constraining the scientific, technical language of governance. The paper thus takes a step back and looks at what areas were identified by al-Tahtawi’s text as needy of a new semiotics of law. One such new semiotics was later devised under the influence of legal positivism, and came to constrain the discourse on governance along those lines.

This presentation proposes a structure for Islamic constitutionalism that is inspired by pre-modern Islamic jurisprudence and Muslim history, yet designed for contemporary realities. This structure is conceptually different from the typical “Islamic state” imagined by modern political Islam movements because it is built on legal pluralism rather than legal centralism. Unlike the centralized European nation-state systems inherited by most Muslim-majority countries, the constitutional structure presented here is built upon the separation of lawmaking power that characterized Muslim legal and political systems for centuries: a separation between (1) siyasa laws made by rulers in furtherance of the public good (maslaha) and (2) fiqh laws articulated by religious legal scholars based on scriptural interpretation and existing in a diversity of legal schools. Understanding sharia as an Islamic rule of law (rather than merely a collection of rules) encompassing both fiqh and siyasa, I propose a three-part structure for modern Islamic constitutionalism. This structure would Muslims to have sharia as the “law of the land,” but is not theocratic because it does not allow a state to impose its preferred religious doctrine upon the entire population. It also opens up new solutions to longstanding conflicts between secular and religious forces in Muslim-majority countries today, such as the purported incompatibility of Islam and democracy and apparent conflicts between sharia and human rights. These solutions have been missed in global discourses about Islamic government so far because Eurocentric concepts of law (especially religious law) currently dominate the field. This paper challenges these concepts by showing how an Islamic constitutionalism that is not secular and not theocratic is not impossible.

This paper examines the ambiguous legacy of Rifa'a al-Tahtawi. Tahtawi is commonly considered to be among the forebears of republican thought in the Arab world, based on his seeming attempts to integrate French Enlightenment thought into an Islamic conceptual universe. At the same time, there are notable elements of authoritarianism in Tahtawi's writings as well, specifically with regard to the relationship between the ruler and the ruled. This observation is not new in and of itself. But the tension between republicanism and authoritarianism in Tahtawi's thought is often attributed to his apparent “difficulty in reconciling the workings of the secular political system with his basic Islamic outlook” or his "late-Ottoman mindset." Instead, in this paper I argue that Tahtawi's autocratic sympathies should not be attributed to his learning in the Islamic legal tradition at al-Azhar, despite the fact that his arguments about rulership may resemble on the surface the premodern political thought of al-Ghazali, al-Mawardi or later Ottoman scholars, for example. Rather, I argue that Tahtawi is best understood as a figure integral to the emerging discourse of the Egyptian nation-state, and that state's bureaucracy of control and surveillance. Tahtawi's recognition that the state must control its citizens and the ruler must be obeyed, I argue, is just as attributable to his time in France as any republican sympathies that might come from his readings of, say, Rousseau and Montesquieu.