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Shariʿa and State in the Modern Muslim Middle East

Published online by Cambridge University Press:  23 April 2009

Nathan J. Brown
Nathan J. Brown
Affiliation:
Associate Professor at the Elliot School of International Affairs, George Washington University, Washington, D.C. 20052USA.
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Extract

The Islamic shariʿa is central to Islam in the minds of most Muslims and non-Muslim scholars. In many ways, the centrality of the Islamic shariʿa has increased in recent decades. Yet despite—or perhaps because of—this centrality, the precise, even the general, role of the shariʿa in Islamic societies is the subject of contentious debate among Muslims. Outside of and underlying such debates are more subtle and rarely articulated differences about the meaning of the Islamic shariʿa. In this essay, I will put forward a general intellectual map for those varying meanings. More critically, I will suggest that important shifts in the meaning of the Islamic shariʿa have taken place in the Muslim world, and that these shifts are closely connected to the nature and viability of legal and educational institutions associated with the Islamic shariʿa in the past. As the Islamic shariʿa has become disconnected from these institutions, its meaning has changed in some fundamental ways. Most important, the shariʿa is approached less for its process than for its content. And because the shift in institutions and understanding has received much less attention from Muslims, widespread attempts to re-create older relationships (particularly involving the relationship between the Islamic shariʿa and the state) in fact involve a deepening rather than a counteracting of the transformation in the Islamic shariʿa.

Type
Articles
Information
International Journal of Middle East Studies , Volume 29 , Issue 3 , August 1997 , pp. 359 - 376
Copyright
Copyright © Cambridge University Press 1997

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References

NOTES

Author';s note: The first draft of this paper was prepared for the workshop ‘History and Memory in the Muslim World,’ held at Tel Aviv University in January 1996. I owe thanks to the organizers of the workshop and my fellow participants. I also benefitted from the comments of Judith Kohn Brown, Keith Lewinstein, Armando Salvatore, Ron Shaham, and Emad al-Din Shahin.

1 See, for example, al-Bishri, Tariq, “Miʾa ʿamman ʿalā al-qadāʾ al-Miṣrī” (One Hundred Years of the Egyptian Judiciary), al-Quḍāh 5/6 (May/06 1986): 28–31Google Scholar; and Bey, Jibraʾil Kahil, “Al-Qadāʾ qadīman wa-ḥadīthan li-qāḍin ḥaḍar al-ʿaḥadayn” (The Judiciary, New and Old, by a Judge Present During Both Eras), al-Kitāb al-dhahabī Ii-l-maḥākim al-ahliyya (Cairo: al-Maṭbaʿa al-amīriyya bi-Būlāq, 1938), 1–4Google Scholar. For an example from the Gulf, see ʿUbaydān, Yūsuf Muḥammad, Maʿālim al-niṩām al-siyāsī al-muʿāṣir fī qaṭar (The Features of the Contemporary Political System in Qatar) (n.p., 1984), 256Google Scholar. ʿAbd al-ʿAziz al-Khulayfi, the current vice-president of the sharīʿa courts in Qatar (and a former judge on the civil courts), claims that the sharīʿa courts were the primary (if not the sole) courts in Qatar from the earliest days of Islam until 1971 (personal interview, Doha, , 12 1994Google Scholar; the claim was also made in a 1994 meeting with Qatari law students).

2 Said Arjomand, Amir, The Turban for the Crown: The Islamic Revolution in Iran (New York: Oxford University Press, 1988), 50–52Google Scholar. The relationship between constitutional and Islamic law has been a major and contentious topic in 20th-century Shiʿi political thought.

3 Messick, Brinkley, The Calligraphic State: Textural Domination and History in a Muslim Society (Berkeley: University of California Press, 1993)Google Scholar.

4 See al-Ahrām, 5 March, 10 March, and 24 04 1883Google Scholar. Earlier, when ʿAbbas (r. 1849–54) claimed the right to order executions, the Ottoman authorities objected on the grounds that this was a violation of shariʿa-sanctioned procedures (reserving the authority for the sultan and the shariʿa judge). In essence, the sultan viewed the measure as a step toward Egyptian sovereignty. After a diplomatic crisis, a compromise was adopted under which ʿAbbas would refer execution orders to a committee that included the Ottoman-appointed qadi: Khankī, ʿAzīz, “Al-Tashrīʿ wa-l-qadāʾ qabla inshāʾ al-maḥākim al-ahliyya” (Legislation and the Judiciary Before the Construction of the National Courts), al-Kitāb al-dhahabī, 1:79Google Scholar. See also Salīm, Laṭīf Muḥammad, al-Niẓām al-qaḍām al-miṣrī al-ḥadīth 1875–1914, 2 vols. (Cairo: Markaz al-dirāsat al-siyāsiyya wa-l-istrātijiyya bi-l-ahrām, 1984), 1:17–18Google Scholar.

5 This is based on a reading of relevant press articles from 1881 to 1883 (chiefly from al-Ahrām but also from al-Muqaṭṭam).

6 The minutes of the cabinet deliberations and other relevant documents are included in al-Kitāb aldhahabī, 102–20Google Scholar.

7 Interview with a legal official in Qatar, 11 1994Google Scholar.

8 In the specific case of the Egyptian nationalist movement of the early 1880s, the Mixed Courts were an issue, but not because they were based on a European model. The Mixed Courts represented European control to many Egyptians, but even political leaders associated with the nationalist movement were involved in the effort to build a European-style (though wholly Egyptian) system to replace them.

9 Enayat, Hamid, Modern Islamic Political Thought (Austin: University of Texas Press, 1982), 1CrossRefGoogle Scholar.

10 Gerber, Haim, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994), 1Google Scholar.

11 El-Nahal, Galal H., The Judicial Administration of Ottoman Egypt in the Seventeenth Century (Minneapolis: Bibliotheca Islamica, 1979)Google Scholar. For Yemen, see Messick, , The Calligraphic StateGoogle Scholar.

12 Gerber, , State, Society and Law in Islam, 16–17Google Scholar.

13 The investigation of pre-imperial law and courts is most developed for Kuwait. See al-Ṭabāṭabāʾī, ʿĀdil, Al-niẒām al-dustūrī fī al-kuwayt (The Constitutional System in Kuwait) (Kuwait: n.p., 1994), 243–62Google Scholar; al-Ṣāliḥ, ʿUthmān ʿAbd al-Malik, Al-niẓām al-dustūrī wa-l-muʾassasāt al-siyāsiyya fī al-kuwayt (The Constitutional System and Political Institutions in Kuwait) (Kuwait: Kuwait Times Press, 1989), 40–89Google Scholar; and “Lamḥa hawla taṭawwur al-qaḍāʾ fī al-kuwayt” (A Glimpse at the Development of the Judiciary in Kuwait), al-Raʾy al-ʿāmm, 7 02 1994Google Scholar. A. Nizar Hamzeh contends that in Qatar most disputes were settled according to tribal law until the Wahhabi movement made the shariʿa supreme. While plausible, there is no documentation for the claim. See “Qatar: The Duality Of The Legal System,” Middle Eastern Studies 30, 1 (01 1994): 79CrossRefGoogle Scholar.

14 This emerges clearly in the work of Rudolph Peters. See especially “Murder on the Nile,” Die Welt des islam 30 (1990): 98Google Scholar. Other accounts of the evolution of 19th-century law are included in Salīm, , al-Niṣām al-qaḍa āʾī; Hunter, F. Robert, Egypt under the Khedives 1805–1879 (Pittsburgh: University of Pittsburgh Press, 1984)Google Scholar; and Reid, Donald M., Lawyers and Politics in the Arab World, 1880–1960 (Minneapolis: Bibliotheca Islamica, 1981)Google Scholar.

For the importance of the mufti's rulings over the courts, see Cuno, Kenneth J., The Pasha's Peasants: Land, Society, and Economy in Lower Egypt, 1740–1858 (Cambridge: Cambridge University Press, 1992), esp. 8Google Scholar.

15 Peters, “Murder.” The dispute over the authority of the Egyptian governor to order executions has already been mentioned; that dispute was resolved by involving the Ottoman-appointed qadi in the process. The practice of trying murder in both sets of courts apparently continued until the construction of the National Courts in 1883. Husayn Fakhri, the minister of justice, called for an end to dual jurisdiction in a December 1882 report to the cabinet, reprinted in al-Kitāb al-dhahabī, 113–14Google Scholar.

It may be instructive that in his treatment of mid-19th-century Egypt, Ehud Toledano focuses not on any conflict between sharīʿa and state law but between formal legal practices and discretionary authority. Toledano, Ehud R., State and Society in Mid-Nineteenth Century Egypt (Cambridge: Cambridge University Press, 1990), 179 ffGoogle Scholar.

16 ʿAzīz Khankī, “Legislation,” 65Google Scholar.

17 Messick, , Calligraphic State, 3Google Scholar.

18 Mitchell, Timothy, Colonising Egypt (Cambridge: Cambridge University Press, 1988), 101Google Scholar.

19 Ibid., 82–83.

20 Ibid., 83–84.

21 For the tension between codified law and jurists'; law in conceptions of the shariʿa, see Mayer, Ann Elizabeth, “The Shariʿah: A Methodology or a Body of Substantive Rules,” in Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh, ed. Heer, Nicholas (Seattle: University of Washington Press, 1990)Google Scholar.

22 A portrait of the resulting informality of an Islamic court is given in Rosen's, LawrenceThe Anthropology of Justice: Law as Culture in Islamic Society (New York: Cambridge University Press, 1989)Google Scholar. Rosen's portrait differs from many other recent works, which emphasize the high degree to which the dictates of the shariʿa inform judicial decisions. This difference might be explained partly by the widely disparate cases that have engaged scholarly attention.

23 I have dealt with this theme in more detail in a forthcoming book, The Rule of Law in the Arab World: Courts, Politics, and Society in Egypt and the Arab States of the Gulf (Cambridge: Cambridge University Press, 1997)Google Scholar.

24 The Kuwaiti exception is best explained by the historical weakness of the sharīʿa courts there. They had never established an existence independent of the rulers'; courts.

25 In general, the jurisdiction of the non-sharīʿa-based courts expanded over time. For instance, they were granted jurisdiction over land-tenure questions in Egypt in 1858 with the new land law. See Cuno, , Pasha's Peasants, 194Google Scholar.

26 It should be noted that a shariʿa-trained shaykh was a member of the committee that helped develop the new court system in Egypt. See al-Ahrām, 29 01 1883Google Scholar.

27 In Egypt, the matter is not completely clear, but the cabinet did decide in December 1882 to allow shariʿa courts to continue to hear such suits. See al-Kitāb al-dhahabī, 1:116–18Google Scholar. Fourteen years later, an Egyptian lawyer claimed that when the National Courts were established, Egyptians would still bring disputes to the shariʿa courts. See “The Progress of the National Courts,” al-Muqṭaṭaf 20 (07 1896): 521–22Google Scholar.

In Qatar, a “gentlemen's agreement” existed between the civil and shariʿa court system to allow a case filed in one court system to continue there, regardless of which court had jurisdiction according to Qatari law (personal interviews with Qatari judges, November and December 1994).

28 SirMalet, Edward to Lord Granville, 28 11 1881, FO 141/144, piece 348, Foreign Office Records, Public Record Office, Kew, EnglandGoogle Scholar.

29 On the staffing of the Egyptian courts, see the cabinet decision to create the National Courts issued in 12 1882, reprinted in al-kitāb al-dhahabī, 119–20Google Scholar.

30 Cromer to Salisbury, 8 11 1896, FO 371/14620, no. 30Google Scholar.

31 Dodge, Bayard, Al-Azhar: A Millennium of Muslim Learning (Washington, D.C.: Middle East Institute, 1974), 127.Google Scholar

32 See Eickelman, Dale F., Knowledge and Power in Morocco: The Education of a Twentieth-Century Notable (Princeton, N.J.: Princeton University Press, 1985), chap. 7.Google Scholar

33 Crecelius, Daniel, “Nonideological Responses of the Egyptian Ulama to Modernization,” in Scholars, Saints, and Sufis: Muslim Religious Institutions since 1500, ed. Keddie, Nikkie R. (Berkeley: University of California Press, 1972).Google Scholar

34 See Dodge, , Al-Azhar, 147;Google Scholar and Mitchell, , Colonising Egypt, 80–82.Google Scholar

35 See Dodge, , Al-Azhar, chaps. 6 and 7.Google Scholar

36 On Egypt, the most comprehensive account is in Salīm, al-Niẓām al-qaḍāʾī.

37 In personal interviews in Qatar in November and December of 1994 with personnel of the shariʿa courts, I heard no opposition to the idea of codification in principle. Some even cited work done by a committee of Gulf Cooperation Council ministers of justice. Yet such work, if it is taking place, is progressing quite slowly.

38 The Muslim Brotherhood and the personnel of the shariʿa courts opposed amalgamation, which involved folding the shariʿa courts into the civil-court system. Because the shariʿa judges were replaced on retirement by secularly trained judges, amalgamation actually amounted to gradual abolition. For an analysis of the steps taken to minimize protest, see Rule of Law, chap. 3.

39 Christelow, Allen, Muslim Law Courts and the French Colonial State in Algeria(Princeton, N.J.: Princeton University Press, 1985).CrossRefGoogle Scholar

40 Even in the relatively conservative shariʿa-based courts of Qatar, such eclecticism is adopted without controversy. In a meeting with students from the Qatar University department of law in 1994, ʿAbd al-ʿAziz al-Khulayfi, the vice president and effective administrative head of the courts, drew freely from various schools in his presentation of the shariʿa. I am grateful to one of the students present for providing me with a tape recording of the session.

41 See, for instance, Muhammad ʿImara';s criticisms of al-ʿAshmawi, Muhammad Saʿid, “What Is the Meaning of the Islamic Shariʿa,” al-Manhal, October–11 1995, 10–17.Google Scholar For an exposition of al-ʿAshmawi';s views, see Shepard, William E., “Muhammad Saʿid al-ʿAshmawi and the Application of the Shariʿa in Egypt,” International Journal of Middle East Studies 28 (02 1996): 39.CrossRefGoogle Scholar

42 See al-Sanhuri, ʿAbd al-Razzaq, “ʿAlā ayy asās yikun tanqīb al-qanūn al-madinī al-Miṣrī” (On What Basis Will the Egyptian Civil Code be Improved),al-kitāb al-dhahabī, vol. 2;Google Scholar and “Wājibunā al-qanūnī baʿd al-muʿāḥada” (Our Legal Duty after the Treaty), al-Ahrām, 1 01 1937.Google Scholar Also of interest is Hill, Enid, “Al-Sanhuri and Islamic Law,” Cairo Papers in Social Science 10 (1987).Google Scholar On Rida, Rashid, see Enayat, Hamid, Modern Islamic Political Thought (Austin: University of Texas Press, 1982), 77–78.Google Scholar

43 ʿAwda, Abd al-Qādir, al-Islām wa-awdāʿnā al-qānūniyya (Beirut: Muʾassasat al-risāla, 1985).Google Scholar

44 See Eickelman, , Knowledge and Power, 167–68, 178.Google Scholar

45 It may be doing violence to the idea of constitutionalism to consider this a constitutionalist answer. It rests on viewing religiously based law as the functional equivalent of a constitution, defining the nature and limits of government authority and of normal legislation. I am not the first person to use the analogy, but its appropriateness depends on whether one views constitutionalism as the epitome of natural law or a response to its demise.

46 See Mallat, Chibli, “Constitutional Law in the Middle East: The Emergence of Judicial Power” (SOAS Law Department, working paper no. 3, 02 1993, SOAS, University of London).Google Scholar

47 See “Our Legal Duty after the Treaty,” al-Ahrām.

48 al-Shāwī, Tawfīq, Fiqh al-shūrā wa-l-istishāra (al-Manṣūra: Dār al-wafāʾ, 1992), esp. 168–76, 192–96.Google Scholar

49 Such committees have been appointed in Egypt and Kuwait with little visible effect on legislation.

50 See Gabr, Hatem Aly Labib, “The Interpretation of Article Two of the Egyptian Constitution as Envisaged by the Supreme Constitutional Court” (unpublished paper, 04 1994).Google Scholar

51 For Hasan al-Bannaʾ, see Majmūʿat rasāʾil al-imām al-shahīd Ḥasan al-Bannāʾ (Dār al-shihāb, n.d.). Al-Bannaʾ accepted the Egyptian constitution as consistent with shariʿa but rejected certain laws. See pp. 170–74 and 215–18. On ʿAbd al-Qadir ʿAwda, see al-Islām. In an interview, Ḥasan al-Ḥuḍaybī articulated some principles (such as election of leaders and mandatory education) that should be included in the Egyptian constitution, thus implicitly endorsing the idea of a constitutional text even within an Islamic legal framework (Rūz al-Yūsuf, 27 12 1952, 7).Google Scholar

52 ʿAwda, al-Islām, 62. ʿAwda is more restrictive than most Islamicist intellectuals, requiring not only that legislation be consistent, but that it aim at implementing the shariʿa.

53 Mitchell, Richard, The Society of Muslim Brothers (Oxford: Oxford University Press, 1993), 260.Google Scholar