Sunday, March 15, 2009

Asad, Formations, ch 7 “Reconfigurations of law and ethics in colonial Egypt”

Asad, Formations, ch 7 “Reconfigurations of law and ethics in colonial Egypt”

SUMMARY: Chapter examines how secularism evolved in Egypt by looking at how it came to be used in the changing ideas of shari’a (Muslim law) in Egypt (outline and thesis, 208-209). Gives history of Arabic word for “secular” (206-208). Describes history of legal institution changes in Egypt (210-212) and possible reasons why they were done (212-219). He also goes in to the changing idea of itjihad (219-222), of “subjective interiority” and autonomy (222-226), and of “family”—especially as expressed by Abduh (228-235). He then goes on to analyze how the philosophy Western law (vs. morality) developed and came to be picked up by Egyptians (236-240), and then specifically how the shari’a was adapted philosophically (focusing his attention of Safwat’s understanding of it) (241-253). Asad ends by giving an overall evaluation of secularism in general (255-256).

205-looks at how secularism is treated in 19th and early 20th century Egypt

206-the word for secular appeared in the late 19th ce: almaniyy, derived from al-alam (“the world”); though note #2 says that for many years throughout the 20th century and today many still use the word ‘ilmaniyy (though it is seen as incorrect) which is derived from the word ilm (“knowledge” and “science” in contrast to “religion”); (207) the modern word for “to secularize” (almana) was created in the 19th century and had a similar meaning to the original meaning of saecularisatio, to transfer religious property to worldly purposes; at the same time, the word waqf which is typically understood as “religious endowment” really “was simply the sole form of inalienable property in the shari’a” and sometimes had non-religious (eg when used for agricultural lands) or both religious and non-religious purposes (eg when used for hospitals and schools)

208-in Europe, the words “secularism” and “laicisme” (both denoting that institutions have a non-religious character) dates from the mid 19th century; “laicisme” is a stronger form of secularism because of the Jacobin rebellion against religion—and that these European uses didn’t appear in Egypt at the same time indicates “that political discourse in Arabic did not need to deal directly with it as it has since then. In that sense, secularism did not exist in Egypt prior to modernity.”

Goal: “In this chapter I try to trace some changes in the concept of the law in colonial Egypt that helped to make secularism thinkable as a practical proposition. I focus on some of the ways that legal institutions, ethics, and religious authority became transformed, my purpose being to identify the emergence of social spaces within which ‘secularism’ could grow.”, (209) Asad is concerned “with exploring precisely what is involved when conceptual changes in a particular country make ‘secularism’ thinkable.”’ Asad looks at 2 late 19th century analyses of the event of the narrowing shari’a and increase of “secular” laws

Thesis: “I claim that the shift in these texts reflect reconfigurations of law, ethics, and religious authority in a particular Muslim society that have been ignored by both secularists and Islamists.”

210-Though officially part of the Ottoman Empire, Egypt “possessed a large measure of political autonomy” (cf Islamic Law in the Modern World and Peters “Islamic and Secular Criminal Law…”); throughout all the ottoman empire, “shari’a courts had primary jurisdiction over urban Muslims, rural tribes followed customary rules and procedures (‘urf), and milliya courts were regulated by and for the various sects of Christians and Jews…Indeed, the ruler had his own body of administrative law (qanun) that did not draw its authority from the shari’a. From the mid-nineteenth century on, a series of progressive legal reforms was carried out in the empire under the rubric of the tanzimat (the Commercial Code was issued in 1850, the Penal Code in 1858, the Commercial Procedure Code in 1861, and the Maritime Commerce Code in 1863) that involved the wholesale adoption of European codes. The first attempt in the Ottoman empire to codify the shari’a, known as the majalla, was published (211) over a period of seven years, from 1870 to 1877. Officially it had jurisdiction throughout the empire, but in fact it was never effective in Egypt. [cf Law in the Middle East; and note #12 says there were attempts to codify it in the 16th and 17th century] There the formal control of Egypt’s national budget by the European powers, to whom it had become heavily indebted, very quickly led (in 1876) to the introduction of a civil code for the Mixed Courts of Egypt—an autonomous institution administered by European judges by which European residents (over one percent of the population at the end of the nineteenth century) were legally governed in all matters including their interactions with Egyptians (thus disputes between natives and Europeans always fell under the jurisdiction of the Mixed Courts). A code for shari’a courts was promulgated in 1880 and substantially amended in 1887. In 1883, a year after the Britihs Occupation of Egypt, a modified version of the code used in the Mixed Courts was compiled. For the National (ahliyya) Courts, both codes being based mainly on the Napoleonic Code. On the other hand, courts administering shari’a law, often described by European historians as ‘religious courts,’ were deprived of jurisdiction over criminal and commercial cases and confined to administering family law and pious endowments (awqaf). The so-called ‘secular courts’ (both Mixed and National) had jurisdiction over the rest. The bureaucratization of the shari’a courts (that is, the introduction of an appellate system, a new emphasis on documentation in judicial procedure as well as the authorization of written codes) drew on Western principles and incorporated the shari’a into the modernizing state.” [note #14 says to cf Scott “Judicial Reform in Egypt,” Journal of the Society of Comparative Legislation no. 2 July 1899, the author of this article “was charged by Lord Cromer, the British consul-general, with overseeing these reforms” and “repeats the colonial notion that ‘until recently there was no such thing as native justice’ (p. 240).”] ; (212) “In 1955, under Jamal Abdul Nasir, the dual structure of the courts was finally abolished.” [note #15 says this was done ostensibly because of the “unsatisfactory nature” of Christian, Jewish, and Muslim court judgments, but really for bureaucratic unification, cf Anderson “modern Trends in Islam”]

212-there is a dispute among historians over “why the reformers looked to European rather than build on preexisting shari’a traditions.”, some say it was the result of European coercion and Egyptian elites’ Europeanization, (213) though others have said European society was simply better, and others said European law wasn’t imported, but Egyptian law just changed its emphasis—(214) though Asad says this last view is not helpful in understanding secularization—and others think the changes were essentially Egyptian, but imitated European laws to resist “direct European penetration”—but Asad says motives were diverse “especially in different periods” (eg in early 19th century when Muhammad Ali did penal reforms to reflect the European system, he did this “to consolidate his own control over the country’s administration of justice”, in admiration of Europe’s ability in that skill), (215) though “The attempt at explaining major social changes in terms of motives is always a doubtful business.”; but in the end, no matter what the motives, “the result was to help create new spaces for Islamic religion and morality.”

216-Asad, therefore, criticizes the view that we should always see the colonized in terms of resistance to imperial power; (217) the new laws in Egypt were made out of resistance and also imitated Europeans

217-Even though Weber, through the influence of Snouck Hurgronje, saw the shari’a as “primitive because it lacked the criteria given to modern law by rational authority, Anglo-American jurists had no hesitation in regarding English common law modern even though it did not embody the Weberian criteria of legal rationality. In other words, there is no consensus on what the decisive criteria are (218) for regarding particular forms of law ‘modern’ in the West.”

218-there were new questions about how to apply Western reforms in state building in Egypt; and “colonial punishment”—police and prisons—“was central to the modernization and secularization of law in Egypt. [cf Policing Islam] And it gradually replaced previous forms of violence.”

-Secularization of Egypt’s law “has not only involved the circumscription and reform of the shari’a, it has been deeply entangled with nineteenth century reformulation of Islamic tradition generally.”

219-in “Mass Culture and Islamic Cultural…” (in Mass Culture, Popular Culture), Schulze says the reason why 19th ce Islam reformers used “the European interpretation of Islamic history as one of ‘civilizational decadence’” was because first, the change of economy and political legitimation beginning in the 18th century and the increased use of print—“books from and about Europe, as well as the Islamic ‘classics’ selected for printing by European orientalists and by Westernized Egyptians. That civilizational discourse could now be used, concludes Schulze, to legitimize the claim to equality and independence.”

-“Itjihad (a term used by earlier Muslim scholars to refer to independent legal reasoning on matters about which they were not in agreement was made to mean the general exercise of free reason, or independent opinion, directed against taqlid (the unreflective reproduction of tradition) and in the cause of progressive social reform.”; in Islam and Modernism in Egypt, Adams says itjihad “belonged only to the great masters of the early generations and has consequently not existed since the third century A.H. [9th c C.E.]” [direct quote from Adams]; But “there is no such thing as ‘real’ itjihad waiting to be authenticated by orientalist method; there is only itjihad practiced by particular persons who situate themselves in various ways within the tradition of fiqh.”, “Since itjihad comes into operation precisely when ijma (the consensus of scholars) has failed, the disagreement of [Muhammad] Abduh and [Rashid] Rida on this point [about whether itjihad uses a specific reasoning] with other Muslims, past and contemporary, (224) does not signify that their view is no longer ‘traditional.’ On the contrary, that disagreement or difference is what makes it part of the tradition of Islamic jurisprudence.”; and now more scholars disagree with the idea itjihad stopped and they argue that “change was always important to the shari’a, and its flexibility was retained through such technical devices as ‘urf (custom), maslaha (public interest), and daruna (necessity).”, cf Hallaq Law and Legal Theory, Gerber Islamic Law and Culture, Johansen Contingency in a Sacred Law

*222-Asad says Schulze’s reasons for Islamic shifts is “too instrumental” (ie done as a tool solely to claim indepence); “When major social changes occur people are often unclear about precisely what kind of event it is they are witnessing and uncertain about the practice that would be appropriate or possible in response to it. And it is not easy to shed attitudes, sensibilities, and memories as though they were so many garments inappropriate to a singular historical movement. New vocabularies (‘civilizational,’ ‘progress,’ ‘history,’ ‘agency,’ ‘liberty,’ and so on) are acquired and linked to older ones. Would-be reformers, as well as those who oppose them, imagine and inhabit multiple temporalities.”

224-the mural exclusivity of Sufism to “orthodox Islam” was taken up by Orientalists and early sociologists (including Evans-Pritchard, E. Gellner, and C. Geertz), but some people are now criticizing this dichotomy, eg Maldisi is Studies on Islam

225- there is a popular but “mistaken assumption…that modernity introduced subjective interiority into Islam, something that was previously absent. But subjective interiority has always been recognized in Islamic tradition—in ritual worship (‘ibadat) as well as in mysticism (tasawwuf[??]). What modernity does bring in is a new kind of subjectivity, one that is appropriate to ethical autonomy and aesthetic self-invention…”; and, following P. Berger, Skovgaard-Petersen believes choices for Muslims are expanding concerning lifestyles (cf Defining Islam for the Egyption…), though asad says this view (226) “obscures a complicated picture” because there are new restrictions (eg minimum age for marriage, laws on polygyny, etc)

226-However, Asad agrees with Skovgaard-Petersen that “The individual is now encouraged—in morality as well in law—to govern himself or herself, as befits the citizen of a secular, liberal society. But…this autonomy depends on conditions that are themselves subject to regulation by the law of the state and to the demands of a market economy…[and] the encouragement to become autonomous is primarily directed at the upper classes. The lower classes, constituted as the objects of social welfare and political control, are placed in a more ambiguous situation.”

-so we must look at “how the reordering of social life (a new moral landscape) presented certain priorities to Islamic discursive tradition—a reordering that included a new significance being given to the family, a new distinction being drawn between law and morality, and new subjects being formed.”

228-in 1899 Muhammad Abduh, the year he was appointed Grand Mufti of Egypt, wrote about the use of shari’a courts, he realized that most of the lower classes, and much of the middle and upper classes had “abandoned kinship (229) and affinal sentiments” and ties were centered around the household—the modern “family”, which was an idea concurrently (230) growing in the West; all at the same time as the “idea of a society made up of equal citizens governing themselves individually (through conscience) and collectively (through the electorate)” was being deployed in the West through institutions developed for social sciences and social problems (which were often combined)—“families” were seen as an “object of administrative intervention, a part of the management of the modern nation-state”, “precisely when modern political economy, the principal source of government knowledge and the principle object of its management, begins to represent and manipulate the national population in terms not of ‘natural units’ but of statistical abstractions…”, and this ‘legal formation of the family gives the concept of individual morality its own ‘private’ locus that the shari’a can now be spoken of as ‘the law of personal status’”, (231) “In this way it becomes a secular formula, defining a place in which ‘religion’ is allowed to make its public appearance through state law.”

231-18th century Arabic dictionaries did not have the modern Arabic word for family, a’ila, showing how it was only picked up in the 19th century as the idea became common for Egypt’s rural population by (232) the mid 19th century because of “forced labor and military conscription, a general decline in the economic condition of handicraft workers and petty traders due to the penetration of European capitalism, as well as the reform of landholding and taxation system.”, the conscripted man was allowed to bring only his nuclear family with him when he was moved away from the village—the wives had to go with their husbands because without their husbands there, they wouldn’t get as much material support; the “family” only first appears in Egypt’s census in 1917; plus upper classes were adopting Western domestic styles and (233) “practiced a discourse of the ideal family—typically expressed in terms of ‘the problem of the status of muslim women’”

234-many saw “sentiments of love” to be essential for this family; note #67 gives a quote form P. Gay’s The Education of the Senses in which Gay points out that though intimate love is timeless, in the 19th century it becomes “more concentrated than ever”, “Potent ambivalent feelings between married couples, and between parents and children, the tug between love and hate deeply felt but rarely acknowledged, became subject to more severe censorship than before, to the kind of repression that makes for neurosis. The ideology of unreserved love within the family was attractive but exhausting. Father’s claims on daughters and mother’s claims on sons, assertions of authority or demands for devotion often masquerading as excessive affection, acquired new potency precisely as the legal foundations for authority began to crumble. Increasingly, family battles took place, as it were, not in the courtroom, but in the minds” [direct quote from Gay, pp. 444-45]

235-and the modern view is that morality is to be learned in the private family

**-“…the social and cultural changes taking place in the late nineteenth and early twentieth centuries…created some of the basic preconditions for secular modernity. These involved the legal constitution of fundamental social spaces in which governance could be secured through (1) the political authority of the nation-state, (2) the freedom of market exchange, and (3) the moral authority of the family. Central to this schema is the distinction between law (which the state embodied, produced, and administered) and (236) morality (which is the concern ideally of the responsible person generated and sustained by the family), the two being mediated by the freedom of public exchange—a space that was restructured in Egypt by the penetration of European capital and the adoption of the European law of Contract, a space in which debates about Islamic reasoning and national progress, as well as about individual autonomy, could now take place publicly.”

236-Ahmad Safwat, a lawyer, made in 1917 probably the first work to argue “rigorously” the “secular distinction between law and morality” by applying the new version of itjihad; he says that marriage used to be (and still is for the low class), “an institution designed for sexual pleasure and procreation,” but now (237) it’s a “contract between equal parties”, and Safwat thinks his marriage reform suggestions “are not contrary to the fundamental principles of the shari’a, and proposes a reexamination of the basic sources of that law”—and the shari’a is not seen as “sacred” (see Chapter 1)—as well as the Qur’an, Sunna, ijma, qiyas (analogical reasoning)

238-“The distinction between law and ethics is itself made in jurisprudential terms that are traceable in European thought at least as far back as Grotius [cf The Invention of Autonomy and The Rights of War and Peace], a distinction expressing the idea that law is the domain of obedience to a civil sovereign and morality the domain of individual sovereignty in accordance with inner freedoms (conscience).”

239-“The idea of an inner, conscience-driven moral law is taken for granted by Safwat…where transgression is sanctioned only by punishment in the next world, there is (religious) morality…the distinction between ‘morality’ and ‘law’ can be defined in parallel ways as rules, and that their obligatory character is constituted by the punishment attached to them.”

*-“…even in the Western liberal scheme morality is connected to the law in complicated ways. The authority of legal judgments is dependent on the ways, justice, decency, reasonableness, and the like are culturally interpreted; the credibility of witnesses is linked to ways ‘good’ or ‘bad’ character are culturally recognized, assessed, and responded to. Furthermore, there is the general sense that the laws in force should be consistent with the prevailing morality.” [cf A History of the Criminal Law of Egypt and Common-Sense in Law]

*-since in Egypt codes introduced were mostly “European and secular while morality was largely rooted in Islamic tradition. (240) This leads to the question of how interpretive tendencies and assumptions of ‘secular’ law engage with sensibilities and predispositions articulating ‘religious’ morality. If traditionally embodied conceptions of justice and unconsciously assimilated experience are no longer relevant to the maintenance of law’s authority, then that authority will depend entirely on the force of the state expressed through its codes.”

240-“…it is the power to make a strategic separation between law and morality that defines the colonial situation, because it is this separation that enables the legal work of educating subjects into a new public morality.”

-note #79 quotes James Fitzjames Stephen, “one-time legal member of the viceroy’s council”, who explicitly wrote in 1883 that government in Egypt does not represent the will of the people and “The law, while not itself a moral system, is indispensable to the replacement of an inferior morality.”

241- shari’a has 3 classifications for rules: “ibadat (rules governing relations between God and the faithful), mu’amalat (rules governing proper behavior between the faithful), and hudud (rules defining limits to the behavior of the faithful through penalties).”; “modern secular law not only excludes the first as being beyond its purview. It also redraws the distinctions applicable to proper behavior and punishments in terms of ‘civil law’ and ‘criminal law.’ It does all this in accordance with different principles. Furthermore, Safwat’s division deliberately ignores the fivefold shari’a ranking of acts—required (wajib), recommended (mustahabb), indifferent (mubah), discouraged (makruh), and forbidden (haram).”

-and virtue is no longer based on following the acts of Muhammad, it is related to being in accordance with law

242-Snouck Hurgronje was “the first Western authority” on shari’a and “regarded fiqh as an incoherent mixture of religion, ethics, and politics—not as a functioning law but as a theory of the ideal Muslim society that had practical significance only in matters relating to ritual devotions, family relations, and endowments. This view, says Johansen [in Contingency in a Sacred Law], has had a profound effect on Western students of Islam who have tended to see fiqh as a deontology—a system of religious and moral duties—rather than as a law in the rational sense.”, but later Schacht (“perhaps the most important orientalist of the twentieth century to specialize in Islamic law”) “did see that fiqh was not simply a compendium of religious duties but a system of subjective rights, and so inaugurated a new, and more fruitful, approach because fiqh could (243) now be seen as a legal system that private individuals could use ‘for their individual strategies of claims and counter-claims.’ [direct quote form Johansens]”

245-Kant’s idea that each person has moral certainty “would surely be rejected by medieval Islamic theologians and jurists.”, (247) who would say that moral judgment (and therefore ethics, not law) are based on one’s learning from books and society

248-Safwat, however, appeals to reform of shari’a with a Kantian sense of morals, and the result is “a rearticulation of the concepts of law and morality”; though Abduh doesn’t use this appeal, (250) Abduh sees morality taught by (local) traditions and fiqh, and this is based off the 14th century jurist Ibn Taymiyya—(252) in other words, a dominant Muslim understanding of morality was based off of physical practices that have been passed down, so secularism changes the way Muslims think about their own bodies, an idea reinforced in Marcel Mauss’ “Techniques of the Body”

253-the implementation of Western laws, no matter however much Egyptians tried to adapt them to Islamic ones, was a “revolutionary change”

*255-religion “comes to be thought of in moral term” (eg Safwat), Kantian’s ethics (and it did not follow the Kierkegaardian view which saw religion as distinct from ethics); so now ethics presuppose “a specific political realm—representative democracy, citizenship, law and order, civil liberties, and so on. For only where there is this public realm can personal ethics become constituted as sovereign and be closely linked to a personally chosen style of life—that is, to an aesthetic.”

*-“A secular state is not one characterized by religious indifference, or rational ethics—or political toleration. It is a complex arrangement of legal reasoning, moral practice, and political authority. This arrangement is not the simple outcome of the struggle of secular reason against the despotism of religious authority.”, and legal judgment is (256) ultimately connected to punishment and pain because “it is always based on coercion”, “responds to different kinds of sensibility, and authorizes different patterns of pain and suffering”, all while redefining “the concept of the human.”

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