Recasting Islamic Law

Religion and the Nation State in Egyptian Constitution Making

Rachel M. Scott

• Publisher: Cornell University Press
• Year: 2021
• Print ISBN: 9781501753978
• eBook ISBN: 9781501753992
• Topic: Theology & Religion
• Subtopic: Middle Eastern History

By examining the intersection of Islamic law, state law, religion, and culture in the Egyptian nation-building process, Recasting Islamic Law highlights how the sharia, when attached to constitutional commitments, is reshaped into modern Islamic state law.

Rachel M. Scott analyzes the complex effects of constitutional commitments to the sharia in the wake of the Egyptian Revolution of 2011. She argues that the sharia is not dismantled by the modern state when it is applied as modern Islamic state law, but rather recast in its service. In showing the particular forms that the sharia takes when it is applied as modern Islamic state law, Scott pushes back against assumptions that introductions of the sharia into modern state law result in either the revival of medieval Islam or in its complete transformation. Scott engages with premodern law and with the Ottoman legal legacy on topics concerning Egypt's Coptic community, women's rights, personal status law, and the relationship between religious scholars and the Supreme Constitutional Court. Recasting Islamic Law considers modern Islamic state law's discontinuities and its continuities with premodern sharia.

Thanks to generous funding from Virginia Tech and its participation in TOME (Toward an Open Monograph Ecosystem), the ebook editions of this book are available as Open Access volumes from Cornell Open (cornellpress.cornell.edu/cornell-open) and other repositories.

PART I

Constitutions and the Making and Unmaking of Egyptian Nationalism

CHAPTER 1

Constitutions, National Culture, and Rethinking Islamism

In 2013 the Egyptian economist and political commentator Galal Amin complained that the problem besetting Egypt was that some organizations, particularly the Muslim Brotherhood and the Salafis, wanted to subvert the “natural place of religion” and return Egypt to the “middle ages.”1 Religion, he declares, “is a part of life but it is not life in its entirety.”2 Bringing religion out from its natural place into the public sphere, Amin maintains, would lead to sorrow and distress, and would jeopardize the rights of Egypt’s Coptic Christians. Political Islam, he continues, prevents Egypt from undergoing a national and cultural revival: for religion to be a means of such a revival, it must remain in its proper place.3

The conception that religion needs to be kept in its proper place, and that what that proper place is can be readily understood by reasonable members of the populace, underscores modern secularist assumptions about the nature of religion. Such assumptions about religion see any calls for politicized religion such as Islamism as a subversion of the modern natural order of things. In this chapter, however, I argue that Islamism should not be seen as an antimodern aberration that does not respect the proper place of religion. Islamism should rather be seen as a political movement that has been molded by the concerns of the modern state. Both Islamists and secularists have a shared concern with delineating the relationship between religion and politics. Both seek to renegotiate the relationship between religion and politics and impose their vision of such a relationship on modern state structures, even if Islamists see that relationship as more heavily colored by Islamic norms.

Seeing Islamists and secularists as engaged in a similar project draws upon more recent theorizations of secularism. Such theorizations view secularism as the state’s project of promoting an abstract notion of religion and its ongoing involvement in managing religion. Both secular and Islamist constitutions share statist perspectives that hold that it is the right of the state to decide what place religion should occupy and the kinds of rights and obligations that should be given and expected accordingly. This is not, however, to deny that there are differences in how constitutions and states, commonly defined as secular or Islamic, determine such boundaries and the rights and duties they attach to these norms.

One of the ways in which the relationship between religion and politics is defined is through constitutional texts and laws that are promulgated based on those constitutional texts. Constitutions often demarcate the relationship between religion and politics and determine who gets to speak for—and represent—both. Constitutions also establish the relationship between religion and national culture and claim to represent the will of the nation.

Constitutions are most often analyzed through the lens of their capacity to guarantee democracy and human rights. However, they should also be understood in terms of their power as foundational ideological statements. Constitutions reflect how national culture and its relationship to religion and to particular religious traditions are crafted. They therefore can be seen as the way that citizenship and its relationship to religion are fashioned in the service of state formation. The modern nation state is predicated on certain homogenizing concepts, such as national culture and the idea of the national will. Through them, the state legitimizes its claim to represent its citizens. Drawing on the work of Timothy Mitchell and James C. Scott, this chapter demonstrates that constitutions are a means by which modern states represent themselves as objectlike, to be viewed, rendered legible, mapped out, and understood. This applies to how the state wishes to be understood by members of its population and by other nation states.

Constitutions, Ideology, and the Modern State

During the late nineteenth and twentieth centuries, promulgating a constitution was an accepted norm in modern politics. Earlier views of democracy in the eighteenth century emphasized the importance of the rule of the majority and constitutionalism was seen as less democratic since it placed limits on the government.4 However, Hanna Lerner shows that, “today the idea of a fundamental transformation of a political regime or the creation of a new one, whether by revolutionary means or otherwise, that does not involve the drafting of a new constitution is unthinkable.”5 Almost two hundred countries have written or codified constitutions. A small number have not.6

Nathan Brown claims that “scholars stopped studying constitutions [more than a generation ago] because they increasingly seemed quixotic: if political authority was to be constrained, it would not be done with mere pieces of paper.”7 Constitutions, he argues, do not reflect political reality. This is certainly the case in contemporary Egypt, where Egyptians are frequently arrested without a warrant, interrogated without a lawyer present, tortured, and detained for indefinite periods without charge.8

The relationship between a constitutional text and the interpretation and application of that text in law is a complex one. For example, Catharine A. MacKinnon shows that constitutional commitments to gender equality do not relate to the equality of the sexes in reality. Norway and Australia have some of the highest international rankings regarding gender equality, yet the former has no commitment to equality between men and women in its constitution and Australia has no formal written constitution.9 Furthermore, many countries with the lowest gender-equality rankings in the world—such as Malawi—have substantive provisions guaranteeing gender equality and equal rights for women and men.

Another reason for the contemporary popularity of constitutions is that constitutions are often seen as inherent to the concept of the rule of law, which is concerned with impeding the exercise of arbitrary power.10 Constitutions are commonly created to limit the arbitrary use of power since they provide a supralegal framework. Constitutional rules are different from ordinary legislation because they are, Lerner points out, “accorded higher status since they regulate the rules of the game, and determine the procedures by which ordinary laws can be enacted.”11 Thus, constitutional rules are less vulnerable to the will of governments for the reason that the amendment of constitutional articles is more involved than the writing of new legislation.

Rule by law does not itself guarantee the rule of law.12 In many states, law can actually facilitate the exercise of authoritarian power. An example of this relates to the amendments that were made to the Egyptian Constitution of 1971 in 2007. While these constitutional amendments were presented by the Egyptian state as leading to the strengthening of the rule of law, in fact they further entrenched authoritarian practices in the Egyptian order. Thus, while the Egyptian state ruled through the law, it was not a democratic state that protected civil liberties.13

Nathan J. Brown maintains that constitutional rules do not simply restrict power but enable it. Constitution writing of the late eighteenth century, he argues, empowered governments. Indeed, there is no causal relationship between either constitutions or constitutionalism and democracy. Brown contends that constitutions in the Arab world have generally been written in such a way as to increase the power of political authority as opposed to limiting it. In addition, while constitutions and constitutionalism are often platforms for the establishment of human rights, it is not inevitable that such provisions be included.14

The possibility of guaranteeing human rights and for providing the rule of law cannot therefore alone account for the important role that constitutions play in modern political systems. Constitutions must also be seen in terms of their power in the foundation of a new political order. For the Romans, Hannah Arendt asserts, the source of authority lay in the foundation of Rome and in its ancestors. Central to Roman politics was “the conviction of the sacredness of foundation, in the sense that once something has been founded it remains binding for all future generations.”15 She contends that the act of revolution remains, in Western political history, the type of event for which the notion of a foundation is imperative. Like the Romans, Arendt argues, “Machiavelli and Robespierre felt founding was the central political action, the one great deed that established the public-political realm and made politics possible.”16 Revolutions, she claims, are attempts to repair foundations and “to renew the broken thread of tradition.”17 In the American Revolution, the founding fathers established a new polity, and the constitution confirmed and legalized this act of foundation.18 Reverence for the US Constitution has transformed the document into a “sacred symbol of nationhood.”19 It founded the state and embodied the aspirations of a particular sector of society.

Ulrich Preuss claims that constitution making is the power to create a political order ex nihilo. Constitution making is a revolutionary act that both consolidates the achievements of the revolution and puts an end to the revolution that made the constitution possible. The relationship between the revolution and the constitution is therefore “ambivalent,” since “the constitution is the final act of the revolution.”20 Yet constitutions continue to be important beyond the time when they are formed. While the moment of foundation remains the source of the constitution’s legitimacy, the constitution also serves to provide a map of the relationship that the state is to have with its citizens. The new constitutional order depends on articulating who constitutes the nation and what its political values are.

Timothy Mitchell argues that, “in the metaphysics of capitalist modernity, the world is experienced in terms of an ontological distinction between physical reality and its representation.”21 This distinction between reality and the modes by which reality is represented involves envisioning society as a political and conceptual structure that is separate from people themselves. Nineteenth-century Europeans were concerned with the representation of things, with guides, signs, maps, or sets of instructions.22 Mitchell shows that, when Egyptians visited Europe in the nineteenth century, everywhere they went, “everything seemed to be set up before one as though it were the model of the picture of something.”23 Everything was arranged before an observing subject into a system of signification. In the colonial process, Mitchell argues, colonial powers would try and reorder Egypt as something “picture-like, legible, rendered available to political and economic calculation.”24

Constitutions can be seen as important examples of the process that Mitchell refers to. Constitutions have come to operate as signifiers. They have become a means by which the state and national culture are represented. A constitution is representative of a political and conceptual structure that exists apart from the people themselves. Countries use constitutions to exhibit themselves to other countries and establish their legitimacy in the international system and render themselves amenable to political calculation. Via the constitution, those who control the state can signal to the rest of the populace what it stands for, and thus the constitution serves as a mechanism for disciplinary control. Constitutional texts can condition the populace by creating certain expectations about what being a citizen means.

James C. Scott illustrates that central to the power of the modern nation state was the project of making a society legible. The premodern state, he argues, “was, in many crucial aspects, partially blind; it knew precious little about its subjects.”25 The modern state, Scott shows, is based on “the concept of a uniform, homogeneous citizenship.”26 It aims to make the populace readable and therefore more governable. Part of the project of creating this legibility involved creating a uniformity of customs, viewpoints, laws, forms of taxation, and measures. Such uniformity gave the state a synoptic view of its citizens. State officials advocated uniformly laid out and navigable cities, standardized surnames, and a “uniform homogeneous, national administrative code.”27 This move toward standardization and legibility coincided with a new conception of the state’s role, which was aimed at the improvement of all members of society. These attempts by the state to make its populace readable involve, Scott contends, simplification since the representation of an existing social community can only be done through a “schematized process of abstraction and simplification.”28 It involved the “discovery of a society as a reified object that was separate from the state and that could be scientifically described.”29

Constitutions can be seen as a way modern states strive to create this legibility. Thus, constitutions represent a means by which the state—or those stakeholders whom the process empowers—portrays and projects an image of itself and the way that it wishes to be understood. This process of creating legibility does not however simply describe but also shapes the people to fit the state’s categories.30

Understanding constitutions as expositions of state ideology sometimes assumes that there is some kind of consensus before the constitution is made, “understood in ‘thick’ terms of cultural, national or religious homogeneity, or in ‘thin’ terms of shared liberal political culture.”31 Yet such a consensus does not exist in deeply divided societies such as Egypt, which are struggling over the question of what the nation is and what it belie...

Table of contents

• Acknowledgments
• Note on Translation and Transliteration
• Introduction
• Part I: Constitutions and the Making and Unmaking of Egyptian Nationalism
• Part II: Recasting Islamic Law: Case Studies