Transmutations of Shari'a: Fashioning and Refashioning of Islamic Law in the 19th - 20th Century Egypt
Panel 008, 2014 Annual Meeting
On Saturday, November 22 at 5:30 pm
Panel Description
This panel navigates the ways in which Islamic law was refashioned in the 19th - 20th century Egypt. It explores the historical development of what came to be "Egyptian law" and its fundamental principles. It re-evaluates the narratives in the field of Islamic legal history in order to understand the processes of legal transformation in the late Ottoman Empire. It examines the loci of debates between traditional legal scholars and the emerging secular legal class over the codification of Islamic jurisprudence. Also, it interrogates the thesis of legal rupture in the Egyptian legal history as a result of the introduction of a new legal system of positive law. The participants of this panel will engages different view points to investigate concepts such as "tradition," "authenticity," and "legitimacy," which are almost exclusively used to refer to pre-modern Islamic legal system.
The papers on this proposed panel revolve around the common theme of the transmutations of shari'a in the 19th - 20th century Egypt. The first paper examines the development of modern Egyptian law, mutations, and fatigue of shari'a. The second paper addresses the last iterations of traditional scholars and the authority structure of premodern legal tradition. The third paper shifts to a key debate between the adjunct to the last Shaykh al-Islam of the Ottoman Empire, Muhammad Zahid al-Kawthari (d. 1952) and the shari'a judge Ahmad Muhammad Shakir (d. 1958) on the divorce code in Egypt. The key theme of this debate is the limits of the authority of Islamic legal schools (madhahib) in the process of law making and legal reasoning. The fourth participant would link these discussions to demonstrate how the 'ulama' who both advocated and wrote codes of personal status law presented a nuanced view of both French law and the shari'a, which enabled them to see this as an opportunity for Islamic law in the modern age, not a threat against it.
These papers contribute to the growing literature to better situate the internal discussions and debates that accompanied the rise of the nation states and state law in Egypt. In short, these papers engage with three central themes in Islamic legal history in Egypt, namely, transformation of shari'a, legitimacy of civil codes, and the relationship between Islamic law and the Egyptian state.
This paper explores an important debate on the drafting of the divorce law in Egypt in the early 20th century. This debate was between the shari'a judge Ahmad Muhammad Shakir (d. 1958) and the adjunct to the last Shaykh al-Islam of the Ottoman Empire, Muhammad Zahid al-Kawthari (d. 1952). This debate epitomizes the struggles of the traditional legal class ('ulama') in face of introducing new judicial and legal systems. The debate between Shakir and al-Kawthari about the divorce system in Egypt does not only record the changing intellectual and political milieu in Egypt but also it identifies the challenges of social realities that posed immense pressures on the traditional legal class and their diminishing influence in the emergent Egyptian state. Shakir’s ultimate goal is to break the monopoly of Islamic legal school (madhahib) on the process of law making and legal reasoning by directly engaging the Qur'an and the Sunna. This methodology triggered fervent criticism of the new divorce system by Al-Kawthari. Interestingly, this disapproval was not directed at the divorce code per se but at the sheer disregard for the madhhab tradition. I argue that this debate is not only indicative of the gradual processes of the anti-madhhab discourse in Egyptian legal history, but also reveals the crisis of the legitimacy of a new authority structure. The opinions of both Shakir and al-Kawthari were articulated against the premise of the need to preserve sharīʿa courts from dissolution, yet both have very different ways to address this problem.
The era in which the polymath glossator—a vibrant but cautious interpreter of inherited and distilled tradition—set the contours of ifta’ in Egypt, may well have come to a close with the likes of Muhammad Abduh. The influence, however, and rulings of such scholars still persist in a delicate balance of reverent indebtedness and multi-madhhab realism. This paper addresses the pre-modern reliance on dominant opinions and the four madhhabs in ifta’ and laws of state, and the continued influence of scholars of this perspective, despite the influence of M. Abduh’s broad notions of talfiq (mixing and matching between madhhabs), the inclusion of Shi’i legal rulings, and the influence of western legal systems. This paper will argue that despite the three aforementioned qualities of Egyptian law, the last iterations of pre-modern Islamic law persist, at least in some domains.
This paper will discuss the perspectives of Makhlūf al-Minyāwī (1819-1878) and Muḥammad Qadrī Pasha (1821-1886) towards codification of personal status law (al-aḥwāl al-shakhṣiyya) in Egypt. Throughout this time period the codification of personal status law in Egypt entailed two important components: The first was the need to find valid and sound opinions from Sunnī schools of Islamic law, and the second was placing these rulings and opinions into the structure and language of modern European legal codes, usually the French legal code. This paper will demonstrate that the ‘ulamā’ who both advocated and wrote codes of personal status law had a nuanced view of both French law and the Sharī‘a, which enabled them to see this as an opportunity for Islamic law in the modern age, not a threat against it. Specifically, these two scholars shared a particular view towards al-siyāsa al-shar‘iyya, ijtihād, and talfīq, which emerged as the key ingredients for codification of Islamic law in Egypt in the late 19th century and early 20th century.
In 1923, Egypt wrote its first constitution as a parliamentary monarchy; by 1964 its constitution described it as a socialist republic; today (2014), the constitution simply calls it a democratic republic. The 2014 Constitution embraces all the conflicts of 9 constitutions in 90 years, where an active state imposes 'social and economic justice,' and where freedom allows the individual to demand 'rights' given to each against all (including against the state)--sometimes in the same article in the constitutional text. Meanwhile, the last three constitutions (1971, 2012, 2014) include the famous Shari'a clause (in article 2 consistently, each instance a carbon copy of the others), which asserts the relevance of a religious law of medieval provenance, albeit to be interpreted by the members of the Supreme Constitutional Court. As part of the panel, this presentation links these developments (in 20th century Egyptian law) to the evolution of Shari'a-state relationship since 1700.
