Juridical Humanity

A Colonial History

Samera Esmeir

• Publisher: Stanford University Press
• Year: 2012
• ISBN:
  9780804783149
• Edition: 1
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

In colonial Egypt, the state introduced legal reforms that claimed to liberate Egyptians from the inhumanity of pre-colonial rule and elevate them to the status of human beings. These legal reforms intersected with a new historical consciousness that distinguished freedom from force and the human from the pre-human, endowing modern law with the power to accomplish but never truly secure this transition.

Samera Esmeir offers a historical and theoretical account of the colonizing operations of modern law in Egypt. Investigating the law, both on the books and in practice, she underscores the centrality of the "human" to Egyptian legal and colonial history and argues that the production of "juridical humanity" was a constitutive force of colonial rule and subjugation. This original contribution queries long-held assumptions about the entanglement of law, humanity, violence, and nature, and thereby develops a new reading of the history of colonialism.

PART ONE

History

CHAPTER 1

Conquest

We have our own Anglo-Indian Codes as examples of what may be done for an inferior race by a superior, which establishes equality before the law as the first step on the path which will eventually lead to something like equality in civilization.

HAROLD PERRY, “Justice in Egypt”

1883 WAS THE YEAR of the colonial legal conquest of Egypt that immediately followed the military conquest in 1882. Fought not by British troops but rather by British and Egyptian lawyers, politicians, and administrators, the legal conquest initiated a series of reforms announcing the rise of modern positive law and the demise of the Ottoman-Islamic legal tradition.¹ New civil and criminal codes replaced the existing statutes (qawanin) and shari‘a practice. The opening of secular national courts (mahakim ahliyya) replaced the shari‘a courts and the siyasa councils.² Historians of Egypt continue to debate the coloniality of these reforms, asking whether they served British occupation or Egyptian resistance to it and inquiring into the identity of the actors, local or foreign.³ Some examine the political history of the reforms and the particular political interests they served; others emphasize that Egypt was never legally a colony and that its status remained “occupied.”⁴ These approaches, however, do not consider the law that came to govern Egypt after 1883 on its own grounds: its theory, its epistemology, the sensibilities it attempted to cultivate, and its own colonizing operations.⁵ Instead, colonialism, when it is said to be present in Egypt, is reduced to the political context in which the law operated or was resisted. The colonial emerges as a separate political adjective attached to a system of positive law that did not itself engender colonizing power. Further, because the new legal order mirrored many liberal legal systems in Europe and could not be labeled as exceptional or based on a paradigm of racial difference, some historians do not even label the law “colonial.”⁶ These approaches posit the colonial as outside modern law, as the product of other historical forces. The colonial is a characteristic to be identified horizontally in comparison with other parallel legal systems; its operations are to be examined in the present in which they unfold.

What escapes consideration in these accounts is both how the law itself engendered coloniality and how this legal coloniality interrupted the flow of time. Coloniality did not simply consist in interventions happening throughout time and affecting the law, as if external to the law and to time. Colonial law may be a paradigm of exclusion and inclusion,⁷ a European imposition on the colonies that simultaneously transformed them,⁸ or a work of codification that fixed particular versions of practiced tradition.⁹ But the coloniality of the law is also revealed in the forcible elimination of other legal traditions, in the international homogenization of the law, and in the conquest not only of a territory and its inhabitants but of the past.¹⁰ In its quest to homogenize the world, the colonizing power of modern law was directed not only at the present but also at the bond between the present and the past—specifically, at how those who were living in the present, the colonized, were released from the past, from the tradition that once defined their own ways of living, and were bonded instead to the present of colonial law. Colonial law, in short, was a force that produced historical and temporal sensibilities that ruined a remembered past while intensifying the present of the colonial, its ways of knowing and living. And in that present, as I argue in the following chapters, the law claimed a monopoly over the animation of the human.

Viewed in this way, the year 1883, in which a new legal system for the government of Egyptians was established, was not the birthdate of colonial law, despite the two historic legal reforms that took place: the establishment of new, secular national courts and the codification of the penal and civil law in accordance with the French model. While these juridical texts and institutions constituted an innovation in the legal history of Egypt, positive law’s coloniality would only begin to be actualized once it had secured a new relationship to the past of Islamic-Ottoman law and to the tradition transmitted by that past. In Egypt, legal coloniality was a product of temporal practices that followed the primary reforms and secured their new authority by severing key ties between Egyptians and their legal past.

It was not a coincidence, therefore, that the first legal journal in Egypt, Al-Huquq, beginning publication in 1886, was devoted to the subjects of both law and history. While strictly speaking it was not a journal of legal history, the question of history was central. Similarly, one of the first books on the Egyptian legal profession, published in 1900 and titled ­Al-Muhamah (Lawyering), devoted many of its pages to the history of the legal profession in Egypt, to the law in Egypt during the first three quarters of the nineteenth century, and more generally, though less thoroughly, to past legal traditions.¹¹ Other positive law textbooks published in the late nineteenth century included various discussions of the past, ranging from Roman to Islamic law. Still other books produced analytic accounts of positive law that lacked any historical dimension.

Many of these publications testify to a measure of concern with the past as well as with the discipline of history that accompanied the rise of positive law, which, in its modern secular sense, was without precedent in Egypt. The legal system introduced in Egypt in 1883 departed from that which had governed Egypt until then. While some Egyptian lawyers interpreted the legislative innovations of the first three quarters of the nineteenth century as seeds of the 1883 reform, none found this legislation to constitute a tradition of positive law, to which the reforms of 1883 belonged.¹² How, then, should we understand the impulse to wed questions of law to those of history? Did securing the colonial authority of the new law require wrestling with its past? If so, what was the relationship between law’s authority, the past, and history? What different meanings of authority did wrestling with the past, or thinking historically, generate? Was relating time present to time past equivalent to thinking through the methods of the discipline of history? To what extent was thinking historically a process symbiotic with erasing the past and limiting the experience of time to the present, and how does this history show how presentist approaches to the law were imbued with colonial power operations? Finally, how did this presentism of positive law contribute to the rise of “juridical humanity”?

Four inquiries and related arguments make up this chapter. First, the legal rhetoric that positive law provided for the colonial state far exceeded the force of law engendering a new historical colonial area, institutions, and practices.¹³ Rather, the very positivizing of the law and its secularization engendered a new temporal sensibility, that is, particular ways of relating to the past and of thinking historically. For if positive colonial law enabled certain possibilities of action, while eliminating other, past ones,¹⁴ the question of the past and the association one has, or should have, with it cannot be ignored. The transformative and destructive power of modern law necessitated an account of its own past, of the reality modern law would destroy or transform, and therefore a measure of historical scrutiny.¹⁵ This chapter examines a number of legal-historical texts concerning positive law to inquire into how the past ceased to be a burden in the present and future of the new colonial positive law.

Second, the temporality that legal-historical writings articulated was homologous with the temporality that the reforms of 1883 were intended to engender discursively, as it were, opening a new page in history. The interpretation of this legal reform by the new class of legal professionals produced a legal discourse that reconfigured Egypt’s relationship to its past and future and intertwined with the temporality of legal-historical writings.

The third inquiry concerns the theorization of the particular colonial authority with which positive law endowed itself in Egypt. The focus here is less on the identity of the texts or the political powers authorizing the law—colonial, indigenous, or otherwise—and more on authority’s mode and the “kind of binding it is.”¹⁶ The binding of positive law, it is argued, operates through presentist practices; in colonial Egypt, historicization of the past turned the past into an era that preceded the present but no longer claimed it. This new temporality, itself a modern power, secured the authority of positive law by citing its own present and repeatedly writing down its foundational texts. This authority no longer bore any relation to the meanings of authority in Islamic law, whose ground was the tradition connecting the actions of the present to the deeds of the past.¹⁷ Under positive law, the present ceased to be a moment that followed from the past, a moment constituting an addition to what had already taken place. It is here that the coloniality of positive law is to be located—in its lifting the weight of the past and in the arbitrariness that resulted once the law, together with the present to which it belonged, began to evolve cyclically and to constitute its own grounds of citability and legitimation. The law came to be both the means and the end, the grounds and the product, the referent and the sign.

The fourth and final inquiry excavates from the colonial era a text whose author inhabited what I call “joint temporalities” of past and present and proposed a law likewise grounded in joint temporalities rather than historicized discrete eras. My intention is to avoid reproducing the historicist view of the movement of time by pointing to texts that did not follow the logic of discrete eras.

LEGAL-HISTORICAL INQUIRIES

From the very first years of Egyptian legal writing during the post-1883 era, positivist legal writings employed the historical method and made historical inquiries into the past. To a great extent during this period, legal writing was also historical writing.¹⁸ This period, as Yoav di-Capua shows, witnessed the emergence of a modern historical sensibility and the practice of historicism.¹⁹ Taha Hussein, a modernist intellectual, practiced a similar turn in his writings on Islam generally. Of his work on the Islamic past, cultural critic Faisal Darraj writes that it constituted a humanization of history.²⁰ Egyptian lawyers also produced texts saturated with historical and temporal sensibilities, texts that followed specific historical methodologies by thinking with, and sometimes without, history.²¹ In the juridical field, there were also ahistorical writings about the law—ways of inquiring into the past that did not historicize it as a separate era but collapsed it into the present. The ahistorical mode of inquiry did not necessarily result in thinking without the past; as will become evident, the relationship between history and the past was not one between synonyms.

A selection of short articles printed in the journal Al-Huquq, the earliest legal journal published in Egypt, sheds light on these historical and ahistorical inquiries. These articles explored Egypt’s past in relation to its present. Together they point to how the past was recollected, the different modalities of recollection, and the extent to which the doctrine of positive law intervened in this recollection and thus cultivated particular historical sensibilities among lawyers writing within and about positive law.

The relationship between law and history was at the center of the introduction to the first issue of Al-Huquq (March 1886). The introduction begins by describing the scope of the subjects that the new journal will cover, stating that they are legal and historical:

He who contemplates these two matters [history and law] will not be surprised to find that they consist of great benefits and prevalent wishes, for law and history maintain justice and right (al-haq). They contain the fruits of happiness and compassion for humankind, as well as the unshakable republican structure. Law and history are the reference to natural rights. They shape contemporary centuries by recounting the events of times past. It was right that fixed the celestial bodies, organized the natural masses, and founded elementary essences, the key ingredients of things, as well as the primary elements. Yes, right is an internal quality of creation, or, put differently, right is creation’s distinctive characteristic. Impressed by the natures of existing things, everything in the abyss of this existence carries a nomos guiding its movement. Through right, the inanimate world was fixed in accordance with a known nomos, and through right, plants’ vitality surged and the germs of animals were set in motion. Human instinct sought its happiness and security through right, aiming, or being aimed at, preserving itself explicitly and preserving others implicitly. Creation and right are interwoven, united, and fused.²²

“Right” is only one translation of al-haq, which also means “justice” or “truth.” Al-Huquq, on the other hand, the plural of haq, signals “rights” in the positive sense (as distinct from “justice” or “truth”). That the word “justice” is adjacent to the word “right” in the text above does not necessarily indicate that the author meant that al-haq, or right, is distinct from justice. In the Arabic language, joining synonyms or words that share common meanings is an ordinary practice, called parallelism (taraduf). In the paragraph quoted above, Amin Shmayyil describes a right that has not yet been articulated in accordance with positive jurisprudence but rather is articulated in natural law. “Right,”²³ in his analysis, belongs to the order of creation, to the Creator; human beings are not its author: “It was right that fixed the celestial bodies, organized the natural masses, and founded elementary essences, the key ingredients of things, as well as the primary elements.” The text reveals the infinity of law; it enjoys an ahistorical presence, cementing the past and the present, and “shaping contemporary centuries by recounting the events of times past.” What characterizes this bond between past and present?

Later, Shmayyil distinguishes between irrational brutes and rational creatures and makes clear the consequences of this distinction: “The Creator ordered the movement” of the first, whereas the second “direct themselves through the gu...