i!

•

S

Contents

Preface ix

Introduction: A Secular or a Religious State? i

C H A P T E R i . The Legalization of Hisba in the Case of

Nasr A b u Zayd 42

C H A P T E R 2. The Indeterminacies of Secular Power: Sovereignty,

Public Order, and Family 69

C H A P T E R 3. A Paradox of Islamic Authority in Modern Egypt 107

C H A P T E R 4. Law's Suspicion 130

C H A P T E R 5. What Is a Fatwa?: Authority, Tradition, and the

Care of the Self 160

C H A P T E R 6. Islamist Lawyers in the Egyptian Emergency State:

A Different Language of Justice? 188

Epilogue 224

Notes 237

Index 271

=

. i • m••'lit •<• fit? - I f y A £ v m A i n

Preface

I finished the manuscript of this book in the thrall of victory. On Febru-

ary i i , 2011, after massive, patient, resolute, and continual protest by

Egyptians in all parts of the country, Hosni Mubarak was forced to step

down from his thirty-year reign. Egyptians from all walks of life engaged

in massive celebrations, and their jubilation touched the entire world that

watched. I heard a story about an Egyptian passing through U S Customs

and Immigration. When the immigration officer found out he was Egyp-

tian, the officer announced it to the crowds waiting in line; people erupted

in applause.

It was my genuine hope, as I finished this book about secularism and

religion in Egypt, that it would quickly become a work of historical an-

thropology, even a period piece of a bygone era, surpassed by a new time

of unknown potential and possibility inaugurated by this unprecedented

moment in Egyptian history. A n d yet this was where some of my cele-

bratory sentiments began to wane. For I was addressing one of modern

Egypt's most long-standing questions: whether it is, and is to be, a secular

or a religious state. A n d I was writing about one of its oldest, most durable

institutions: its judiciary system. I was also concerned with a paradigm that

has touched not only Egypt but has attained a nearly global dominance

as well: the national security paradigm, which has increasingly normal-

ized the state of emergency and has made us increasingly disposed toward

it. A long-standing and increasingly pronounced question, a durable and

entrenched institution, and a globally dominant paradigm: will this book

speak to the time before and after the Egyptian uprising?

If not, then let it be one document of the decade that preceded and

led up to it. One of the central arguments of the book is that Egypt is not

stuck in the past, clamoring for a future that Western democratic states

X PREFACE

have already attained. Rather, with its deeply entrenched and normalized

state of emergency and its decades-old "war on terror," the kind of state

Egypt has become represents one potential secular future toward which

Western democratic states are moving. Whether this book speaks to the

now or then of Egypt, I maintain that it speaks to the today and tomorrow

of secular democratic states in the West.

Beyond the resignation of Mubarak, I see the uprising in Egypt as ani-

mated by and expressing a number of related, fundamental principles.

One of them is that no one person or group should have a monopoly on

power—nei ther Christians nor Muslims, neither secular nor religious

groups. During the protests, no one person, group, or ideological tendency

emerged as the leader; all efforts were deliberately collaborative. Another

is that the national security paradigm, which has gripped Egypt for so

long and all the more tightly under the pretext of a war on religious ter-

ror, must be completely dismantled. It should be remembered that much

of the animus of the protesters was aimed at the Ministry of the Interior,

which directed the massive state security apparatus that had come to de-

fine the state. To put all of this another way, we could say that the protes-

ters decoupled the question of religion and secularity from the question of

security. In decoupling these questions from each other, they articulated

a space free from the demands of both. But I will say more about this in

the epilogue.

During the protests many people asked me what I thought the best

outcome for the United States would be. The question, I admit, perplexed

me, for it seemed that one ought to wonder about what the best outcome

for Egyptians would be. But thinking about the underlying principles that

animated the protests, I think I might now have an answer to this question.

The best outcome for the United States would be if Americans learned

from the Egyptians' example. The United States, like Egypt, has long

been gripped by the national security paradigm; its security apparatuses

have grown all the more powerful with the "War on Terror," which it con-

ducts both domestically and globally with devastating effect, and political

power has been concentrated in the hands of a very few. It may be time in

the United States as well to decouple the question of religion/secularity

from that of security, and defuse the monopoly on political power that at-

tenuates the possibilities of its democratic ideals. Recent events in Egypt

may teach us the possibilities and pitfalls of such an attempt. However

things turn out, Egyptians have taught an important but simple lesson

that I think is finally starting to dawn upon us everywhere: that our leaders

PREFACE xi

cannot save us from the futures we so fear. Whatever hope there is left, is

entirely in our own hands.

The thanks I owe to those who helped me with this book would easily fill

the pages of another. The acknowledgments I offer here, being necessar-

ily brief, cannot convey my gratitude for the enormous support given me

throughout this project. Here, however, I must pause to express my deep-

est appreciation to Talal Asad, without whose critical intellectual support

this project would have never seen the light of day. I always marvel at my

luck to have studied under his guidance. This is not only because of his

rigorous erudition, his searing insight, and his sharp eloquence. It is also

because of his intellectual courage, a model of scholarship that continues

to provide a source of inspiration and emulation for me. His influence

suffuses the pages of this book, and I see it to be, first and foremost, an

attempt to engage his thought.

Talal was extremely patient with the turtle-pace progression of my

thought when this project was in its early stages at the Johns Hopkins

University in Baltimore. Tanya Baker took a different attitude. When

sometimes I was too hesitant to express my fledgling ideas to Talal, Tanya

would have me recount them to her. She would listen patiently, attentively,

and then ask, "Well, why aren't you done yet?" That constant question

kept me at my heels, and I eventually ran out of excuses. So I have her to

thank too.

I have many to thank who were with me at Johns Hopkins for their en-

gagements and comments during crucial phases of this project. In particu-

lar, I'd like to extend my gratitude to Sara Berry, Bill Connolly, Donald

Carter, Veena Das, Siba Grovogui, Niloofar Haeri, Gyan Pandey, Debbie

Poole, Sonia Ryang, and David Scott.

There are two people to whom I owe special thanks: Charles Hirsch-

kind and Saba Mahmood. They have read the entire manuscript in various

phases, and their engagement with it has pushed my thought further and

in directions I never expected. My discussions with them both have always

imbued my project with renewed energy, especially during those times

when it seemed to be sputtering out.

I am also grateful for my colleagues at the University of Chicago. I

am especially indebted to Jean and John Comaroff and Lisa Wedeen for

their continued support and enthusiasm for the completion of this project.

Lisa's pointed questions helped me sharpen and refine many of my posi-

tions. I am also thankful for all the discussions with fellow faculty in the

Xll PREFACE

anthropology department, on the way to and from campus, in the cor-

ridors and stairways of Haskell Hall, and during Monday lunches or din-

ners. This includes Jessica Cattelino, Julie Chu, Shannon Dawdy, Judy

Farquhar, Kesha Fikes, Ray Fogelson, Susan Gal, John Kelly, Joe Masco,

William Mazzarella, Stephan Palmie, Francois Richard, Danilyn Ruther-

ford, and Michael Silverstein. Although these were often chance discus-

sions, they have, in various ways, made a deep impression on this book. I

was also lucky to be part of an incredibly supportive and intellectually dis-

cerning writing group, and I extend my gratitude to its members: Amahl

Bishara, Summerson Carr, and Robin Shoaps.

I thank Jon Wilson at the King's College London for inviting me to join

the series of workshops and conferences titled "Tradition in the Present."

It gave me the opportunity to think through questions of tradition, tempo-

rality, and authority in relation to legal and religious practices. I benefited

enormously from my discussions with him. A series of conferences titled

"Redescribing the Sacred/Secular Divide: The Legal Story," was orga-

nized by Winnifred Fallers Sullivan and Robert Yelle; I thank them for

inviting me and giving me a wonderful opportunity for cross-disciplinary

engagement. I am particularly grateful to Winnifred for her engagement

with aspects of my work.

I would also like to acknowledge here a number of friends and col-

leagues who have provided me with their support and their intellectual

generosity over the years: Hossam Bahgat, Richard Baxtrom, Roger Be-

grich, Jesse Bump, Alexandre Caiero, Anila Daulatzai, Samera Esmeir,

Khaled Fahmy, Mayanthi Fernando, Thomas Blum Hansen, Elizabeth

Hurd, Naveeda Khan, Brinkley Messick, Amira Mittermaier, Tamir

Moustafa, Sameena Mulla, Nadine Naber, Bettina Ng'weno, Boris Niko-

lov, Sylvain Perdigon, Hanan Sabea, A d a m Sabra, A t e f Said, D o n Selby,

Mulki al-Sharmani, Tarek el-Shimi, Noah Solomon, Kristin Stilt, and

Malika Zeghal. Hind Fouad and Nermeen Mohamed provided me with

crucial research assistance. Baudouin Dupret's intellectual generosity was

indispensible for facilitating my research in Egypt. I also benefited much

from those long shlsha evenings in Cairo where we discussed everything

under the Egyptian sun.

To Raghda Hafez: your laughter kept me sane throughout those lon-

gest stretches of gray. You are no longer with us, and your absence remains

deeply felt. To Mario Bonilla: you shared nothing of the academic world

I live in, but you would've been the first to call and congratulate me on

this book. The way you lived your life in the face of its frightening finitude

PREFACE xiii

taught me a lesson I'll take to the end of my days; you were the best of

teachers. Rest, now, chico.

Suad Joseph and Smadar Lavie persuaded me to return to university

study when I had sworn never to go back to school again. For that they

have my continuing gratitude.

I also wish to express my appreciation for David Brent and Priya Nel-

son of the University of Chicago Press, who have made the process of

this book's publication smoother than I could have imagined. I am also

lucky to have benefited from Dawn Hall's kind and careful editing of the

manuscript.

The research for this book was funded by the Wenner-Gren Founda-

tion for Anthropological Research, the Fulbright Program, and the Johns

Hopkins Institute for Global Studies in Power, Culture, and History.

Crucial follow-up research and time off to write the book were made pos-

sible by the Lichtstern Fund of the Department of Anthropology of the

University of Chicago and the generous funding of the Carnegie Scholars

Program.

The book was also made possible by the incredible friendship and open

generosity of the Egyptians I met in Cairo, as well as my family there, who

helped me with my research at every turn. I am especially indebted to the

lawyers, judges, and Azhari sheikhs—for reasons of confidentiality I can-

not name them h e r e — w h o patiently guided me through the complexity

of their worlds. I am also thankful to the Egyptian people more generally,

for their amazing effort during those eighteen days, and for their ongo-

ing attempts to extend the ideals of that revolutionary moment into the

future. I'd also like to mention two Egyptians for their amazing efforts:

Nadia Elhamy and Al i Agrama, my parents. Every word in this book is

dedicated to them.

Maria Eugenia Bonilla-Chacin's love, companionship, and unfailing

support have been an anchor in my life, and have made it worth living.

Without them, I'd be lost at sea.

xii PREFACE

anthropology department, on the way to and from campus, in the cor-

ridors and stairways of Haskell Hall, and during Monday lunches or din-

ners. This includes Jessica Cattelino, Julie Chu, Shannon Dawdy, Judy

Farquhar, Kesha Fikes, Ray Fogelson, Susan Gal, John Kelly, Joe Masco,

William Mazzarella, Stephan Palmie, Francois Richard, Danilyn Ruther-

ford, and Michael Silverstein. Although these were often chance discus-

sions, they have, in various ways, made a deep impression on this book. I

was also lucky to be part of an incredibly supportive and intellectually dis-

cerning writing group, and I extend my gratitude to its members: Amahl

Bishara, Summerson Carr, and Robin Shoaps.

I thank Jon Wilson at the King's College London for inviting me to join

the series of workshops and conferences titled "Tradition in the Present."

It gave me the opportunity to think through questions of tradition, tempo-

rality, and authority in relation to legal and religious practices. I benefited

enormously from my discussions with him. A series of conferences titled

"Redescribing the Sacred/Secular Divide: The Legal Story," was orga-

nized by Winnifred Fallers Sullivan and Robert Yelle; I thank them for

inviting me and giving me a wonderful opportunity for cross-disciplinary

engagement. I am particularly grateful to Winnifred for her engagement

with aspects of my work.

I would also like to acknowledge here a number of friends and col-

leagues who have provided me with their support and their intellectual

generosity over the years: Hossam Bahgat, Richard Baxtrom, Roger Be-

grich, Jesse Bump, Alexandre Caiero, Anila Daulatzai, Samera Esmeir,

Khaled Fahmy, Mayanthi Fernando, Thomas Blum Hansen, Elizabeth

Hurd, Naveeda Khan, Brinkley Messick, Amira Mittermaier, Tamir

Moustafa, Sameena Mulla, Nadine Naber, Bettina Ng'weno, Boris Niko-

lov, Sylvain Perdigon, Hanan Sabea, A d a m Sabra, Atef Said, D o n Selby,

Mulki al-Sharmani, Tarek el-Shimi, Noah Solomon, Kristin Stilt, and

Malika Zeghal. Hind Fouad and Nermeen Mohamed provided me with

crucial research assistance. Baudouin Dupret's intellectual generosity was

indispensible for facilitating my research in Egypt. I also benefited much

from those long shlsha evenings in Cairo where we discussed everything

under the Egyptian sun.

To Raghda Hafez: your laughter kept me sane throughout those lon-

gest stretches of gray. You are no longer with us, and your absence remains

deeply felt. To Mario Bonilla: you shared nothing of the academic world

1 live in, but you would've been the first to call and congratulate me on

this book. The way you lived your life in the face of its frightening finitude

PREFACE xiii

taught me a lesson I'll take to the end of my days; you were the best of

teachers. Rest, now, chico.

Suad Joseph and Smadar Lavie persuaded me to return to university

study when I had sworn never to go back to school again. For that they

have my continuing gratitude.

I also wish to express my appreciation for David Brent and Priya Nel-

son of the University of Chicago Press, who have made the process of

this book's publication smoother than I could have imagined. I am also

lucky to have benefited from Dawn Hall's kind and careful editing of the

manuscript.

The research for this book was funded by the Wenner-Gren Founda-

tion for Anthropological Research, the Fulbright Program, and the Johns

Hopkins Institute for Global Studies in Power, Culture, and History.

Crucial follow-up research and time off to write the book were made pos-

sible by the Lichtstern Fund of the Department of Anthropology of the

University of Chicago and the generous funding of the Carnegie Scholars

Program.

The book was also made possible by the incredible friendship and open

generosity of the Egyptians I met in Cairo, as well as my family there, who

helped me with my research at every turn. I am especially indebted to the

lawyers, judges, and Azhari sheikhs—for reasons of confidentiality I can-

not name them h e r e — w h o patiently guided me through the complexity

of their worlds. I am also thankful to the Egyptian people more generally,

for their amazing effort during those eighteen days, and for their ongo-

ing attempts to extend the ideals of that revolutionary moment into the

future. I'd also like to mention two Egyptians for their amazing efforts:

Nadia Elhamy and A l i Agrama, my parents. Every word in this book is

dedicated to them.

Maria Eugenia Bonilla-Chacin's love, companionship, and unfailing

support have been an anchor in my life, and have made it worth living.

Without them, I'd be lost at sea.

I N T R O D U C T I O N

A Secular or a Religious State?

There is a famous lithograph by the Dutch artist M. C. Escher. It shows

a paradox, of two hands mutually drawing each other into existence.

I have always thought this to be an apt metaphor for our most recent un-

derstandings of secularism. We no longer see the domains of the religious

and the secular as given, but rather, as mutually constitutive of each other

in often tense and contradictory ways. Our newfound awareness of these

co-constitutive antinomies, however, has brought as much anxiety as it

has understanding. On the one hand, it seems to suggest a capacity to

transform secularism into something more generously responsive to the

irreducible pluralism of present times. O n the other, it throws into ques-

tion those secular conceptions of human agency upon which such a trans-

formative capacity presumably rests. A s a result, much of the literature

on secularism exhibits a self-confounding tendency, where the commit-

ments that animate it and the critiques that it conducts undermine each

o t h e r — t w o hands mutually erasing each other out of existence. Like

Escher's lithograph, the literature on secularism gives the impression of

an intractable paradox.

Such paradox is not entirely accidental. It is bound to arise anytime we

probe the deeper premises of our ways of thought and life. It is also intrin-

sic to the tensions between the often-immediate demands of our political

commitments and the necessarily open, frequently tentative character of

social inquiry. Yet the sense of paradox that secularism poses seems to go

beyond these facts, to present an intractability of a distinctive kind. Indeed,

I suspect that it expresses something central about secularism as a form of

power. O n e of the aims of this book is to investigate how this is so.

To begin to get a better handle on this paradoxical quality, we can turn

to Talal Asad's inaugural explorations of secularism. A s part of those

3 INTRODUCTION

explorations, he draws an important distinction, between the secular as

a domain of historically constituted and variably related behaviors, sen-

sibilities, and ways of knowing, and secularism as a doctrine and political

arrangement within the modern state. A l t h o u g h he never sees the two as

ever fully separable, he takes the secular as conceptually prior, and asks

how its concepts, assumptions, sensibilities, and practices work to support

or undermine secularism as a modern political arrangement. In asking

this question, he aims to draw critical attention to some of the visceral reg-

isters that secularism relies upon, and which had until then been largely

ignored.

In taking up this distinction, however, some have seemed to imply that

the one can be studied without the other and suggested that while we now

know much about secularism in various places, an understanding of the

secular continues to elude us. I, however, am not so sure. It is not just that

such a claim is se l f -refut ing—after all, how much can we really know about

secularism if an understanding of its underlying secular domain continues

to elude us? It is also that this claim belies how deeply interdependent the

two are. We can accept the conceptual priority of the secular while never-

theless turning Asad's question around, to ask: how does secularism work

to support or undermine the concepts, sensibilities, assumptions, and be-

haviors of the secular that it draws and depends upon? That this question

has not been asked should be a sign of how little we still know about both,

about how interdependent they might be. T o extend further the metaphor

with which I began, we might see secularism and the secular as constantly

drawing each other into existence, and ask how this mutually constitutive

character is part of the paradoxical quality of secularism's power.

H o w then does secularism, as a form of power, work? A n d what work

does it do upon the behaviors, attitudes, and ways of knowing that consti-

tute our ways of l ife? These questions, and the ways their answers elude

us, are at the center of this book. I explore them through a consideration

of state law, politics, and religion in contemporary Egypt.

Egypt seems hardly the place for theorizing about modern secularity.

A s a state where politics and religion seem to constantly blur together

and give rise to continual conflict, it leads many to question whether it is

a secular or a religious state. Its constitution, for example, names Islamic

law (the Shari'a) as the principal source of law in the country.1 But its

legal system is based on largely European, and mostly French, law. A s a

result, many fundamental provisions of the Shari'a are patently ignored

and unimplemented. A n d while its personal status l a w — w h i c h deals with

- . INTRODUCTION 3

the private affairs of family—is based on codes derived from religious law,

the state has continually tried to reform it in a liberal direction. Although

the constitution guarantees freedom of religious belief and worship, the

courts have banned some forms of women's head scarf in public schools

and professions.2 But at the same time they have upheld the use of un-

codified Islamic religious principles for litigation, which have allowed for

apostasy and censorship trials against public intellectuals. Some religious

institutions, like A l - A z h a r Mosque and its Fatwa Council, are officially

under the state; their role in state policy formation, however, remains

highly circumscribed. The state has also prohibited official status to any

explicitly religious party and has (until recently) severely repressed such

unofficial party formations, such as the Muslim Brotherhood, even though

they had long renounced violence. A t the same time however, it allowed

brotherhood members to run and win in parliamentary elections as inde-

pendent candidates.

So is Egypt a secular or a religious state? This question has long been

asked both within and outside of Egypt. But it has become even more

pressing today. That is because Egypt is one important center in the Mus-

lim world, which is, as we know, under tremendous transformative pres-

sure. And this, in turn, has placed the Muslim world at the center of some

of the fundamental questions of contemporary liberal political thought:

tolerance, sovereignty, democratization, security, the proper uses of vio-

lence, and the limits of freedom of religion and expression. Al l of these

have become wrapped up in the question of whether Egypt is a secular

or a religious state, of what kind of state it actually is and what it might

potentially become. Notably, however, this is no longer a question asked

only of Egypt; it is also now increasingly asked of many states, includ-

ing those considered to be paradigmatically secular. It therefore indexes

deeper anxieties about our contemporary secularity and our abilities to

define and secure it.

It is in order to explore the roots of these deeper anxieties that this

book takes up the question of whether Egypt is a secular or a religious

state. The aim, however, is not to provide an answer either way, secular or

religious. Neither is it just to describe some of the complicated relation-

ships between religion and politics in Egypt. It is rather to question the

very question. Not to say, however, that it is somehow wrong, false, inap-

propriate, or fictional. Rather, the goal is to elicit a different understand-

ing of this question, its presuppositions, the forms it takes, the affects that

infuse it, its conditions of felicity and its resilient f o r c e — a n understanding

INTRODUCTION 4

that I hope will arise in the course of this study. A n understanding, it is

also hoped, that will give us a strikingly different picture of secular power

than is commonly supposed and of how it works in social life.

T h e study offered here, based on over two years of fieldwork in Cairo,

is rooted in an ethnographic exploration of Egyptian legal practices.3 I

focus on law because, as I show in the book, it is indispensible to the exer-

cise of secular power, and at the center of its paradoxical quality. T h e eth-

nography revolves around a comparison of the Egyptian personal status

courts and the Fatwa Council of A l - A z h a r Mosque. Personal status law,

which concerns the private affairs of family, is the only domain of law left

in Egypt that is explicitly regulated by rules of theShari 'a , even though

the Egypt ian constitution states Islam as the country's principal source

of law and legislation. Personal status law has long been, and remains, an

intensely contested domain of reform in a society as highly litigious as the

United States. T h e personal status courts, attended by Egyptians of all

backgrounds, are always busy, packed, and the backlog of cases is huge,

creating particular pressures on the course of litigation and reform.

Equal ly busy are the sessions of the Fatwa Council of A l - A z h a r . Fatwas

are religious responses issued by learned sheikhs to questions asked of

them about certain aspects or affairs of life; A l - A z h a r is one of the old-

est and most highly respected centers of Islamic authority in the world.

Seeking fatwas is a popular practice in Egypt , and the Fatwa Counci l of

A l - A z h a r is a central fatwa-giving institution, always full of questioners

from all walks of life. T h e Fatwa Council , like the personal status courts,

is the product of a long process of reform, one whereby fatwa practices

were reorganized as they were separated out from those practices thought

to be appropriate solely to a rule of law and the courts. While much has

been written about fatwas, and though it is well recognized that they are

a central means of exercising Islamic authority, very little is known about

how they actually work within the everyday lives of Muslims. This is be-

cause most of the scholarly literature on fatwas treats them primarily as

doctrinal or theological statements, disembodied from the situated social

relations of which they are a part. A s a result, the crucial practices through

which the fatwa acquires its specific authority remain unaddressed. In giv-

ing us a window on the role of fatwas in Egyptian daily life, the Fatwa

Council offers us insights into the complex quotidian workings of Islamic

authority.

B o t h the personal status courts and the Fatwa Counci l of A l - A z h a r

base their decisions on the Shari'a, and both address a similar or at least

highly overlapping set of issues. B o t h arise out of distinctly modern trans-

- . INTRODUCTION 5

^ k p r ,

Adi

formations and both are institutions of the Egyptian state. To study them

is to study how the Shari'a is elaborated and practiced within everyday

life under the conditions of secular power and possibility established by a

modern state.

^ . Or should I say modernizing state? Indeed, might it not be argued that

" Egypt is still on the precarious path toward modernization, democrati-

zation, and secularization, suffering understandable setbacks along the

way, but that its course is still in danger of being reversed or permanently

J^ 4 stalled, a mark of incomplete or failed modernity? Might it not be argued

P that this is also why it remains ambiguous as to whether Egypt is a secular

^ or a religious state—namely, that it is still on the way from being mostly

> religious to being largely secular?

This view of Egypt as an incompletely or precariously secular state,

jrone to serious setback at any time, is unhelpful, if only because it is

circular. That is, Egypt is still incompletely secular, which is why it has

religious-secular conflict, and Egypt has secular-religious conflict, which

is evidence of its being incompletely secular. Circular reasoning like this

provides little insight on the conditions of such conflict and ambiguity in

Egypt. It doesn't tell us how we define and distinguish fully secular states

from incomplete ones; it doesn't tell us about the processes by which secu-

larism is implemented; it doesn't tell us how practices of defining full from

incomplete secularity might be an integral part of these very processes.

Such reasoning therefore begs the question not only of Egypt's secularity

P or religiosity but also of secularity and religiosity more generally.

This view also assumes too much about modernity. For the standards

by which states are assessed in terms of a full, failed, or incomplete mo-

dernity have proven to be complex, vague, shifting, and fraught with unac-

knowledged values. For example, the ambiguities and problems of racial,

nationalist, ethnic, and religious conflict are ones that all countries share

to varying degrees. But in some they are seen as signs of failed or incom-

plete modernity and in others not. Consider two countries. First, South

Africa. During apartheid, it received worldwide condemnation. But its

problems were never largely seen as symptoms of a failed or incomplete

modernity. On the contrary, its racism has been assessed as distinctively

modern, and thus a mark of its modernity. Next, consider Israel, riven as

it is by nationalist, ethnic, racial, and religious strife. More, Israel exhibits

secular-religious ambiguities just as much as Egypt. Yet despite worldwide

consternation over its policies, it is not seen as incompletely modern. In-

deed, even despite its secular-religious ambiguities, it is often seen as the

only truly modern state in the Middle East.

h

INTRODUCTION

I

M y point here is neither to praise nor condemn. It is only to highlight

how vague and shifting the standards for assessing a state's modernity

are. Many of the problems that plague Israel and South A f r i c a are shared

by the countries neighboring them. Why, then, are the problems of the

neighboring countries seen in terms of failure or incompleteness, while

this is not the case with Israel and South A f r i c a ? T w o factors unite Israel

and South A f r i c a during apartheid. First, they a r e — o r w e r e — c o l o n i a l

regimes. Second, the colonists a r e — o r w e r e — m o s t l y European. B u t is

being E u r o p e a n and colonial enough to qualify them as modern as op-

posed to their neighbors? Such a standard is certainly inadequate to the

range of experiences, forms of historicity, and durable structures of power

featured in what we call modernity.

Perhaps South A f r i c a and Israel are anomalies in this regard. Consider,

then, the states of Western Europe: even after World War II, when their

economies and industrial capacities had been utterly devastated, they were

not seen as having become any less modern because of this. Consider also

a paradigmatic modern state: the United States. For some time now, it has

displayed t r e m e n d o u s — a n d g r o w i n g — i n c o m e inequality,4 a dwindling

middle class, a weakened and continually eroding industrial base, steadily

worsening health and education statistics, continued racial discrimination,

a national deficit and foreign debt of proportions that would force any

third world country into a severe structural adjustment program, and a

marked religiosity that is seen to be of increasingly political significance.5

A n d yet few would characterize the United States as any less modern than

it was a decade before, when most of these figures were much less pro-

nounced. Egypt has been involved in a modernizing project since 1800,

almost as long as the United States has been in existence. A n d yet, the

United States is seen as always already modern while Egypt is always still

precariously modernizing, despite all the declining figures and ambiguities

exhibited by the former.

To this it might be objected that the United States is a liberal de-

mocracy, while Egypt is not. However , liberal democracy as a criterion ^

for determining a full or failed modernity does not hold up to scrutiny.

A f t e r all, both liberalism and democracy in the United States were highly

qualified until relatively recently, with the implementation of civil rights

legislation. Yet it was not considered any less modern before the passage

of civil rights. Similarly, the French declared colonial A l g e r i a to be a part

of France; Algerians, however, were not allowed to vote, while the pieds-

noirs could. France was not thought any less modern because of this. Nor

- . INTRODUCTION 7

could apartheid South Africa have been considered a liberal democracy,

and yet this lack did not seem to qualify its modernity. *

My point here is not to distinguish modernity from liberalism, to say

that some states can be modern without being liberal. That would not be

accurate to the complex history of liberalism itself, which, as a number of

studies have now well established, has been as supportive of imperial and

^colonial enterprises as it was critical of them.6 Liberal ideas and ideals have

been historically integral to the modern project, providing the basis upon

which its distinctive social transformations are directed, described, as-

sessed, and debated. They cannot be so easily separated from that project.

Neither is this an argument for alternative modernities, premised on

cultural differences. While enacting a modernizing project undoubtedly

involves the adoption of standards, concepts, forms, and structures identi-

fied with Western European states, it has never involved adopting the cul-

tures of these states wholesale. The modern project, as Talal Asad notes,

/'requires not the production of a uniform culture throughout the world,

I but certain shared modalities of legal-moral behaviour, forms of national-

\nolitical structuration, and rhythms of progressive historicity."7 A n d it is

witTfsome of these shared modalities, forms of structuration, and tempo-

ral rhythms that I am concerned about with respect to Egypt.

A s is clear from all of this, I do not accept the proposition that Egypt

is not fully modern. O n the contrary, the chapters of this book will show

how Egypt has adopted those distinctly modern structures and powers

by which secularism is enabled and implemented. I will argue that the

unsettled question as to whether Egypt is a secular or a religious state

arises precisely because it partakes of the structures of liberal modernity,

and that the question would not arise otherwise. The question of Egypt,

I will argue, is but an expression of an increasingly intractable question

at the heart of secularity itself, an index of its paradoxical quality, and

rooted in its tensions and distinctive modalities of power. These tensions

and modalities of power are not peculiar to Egypt; they are also character-

istic of many states considered to be paradigms of liberal secularity, such

as France, Germany, and Britain. N o doubt Egypt's peculiarities make it

seem vastly different from these paradigmatic states. But my aim here is to ]

f show how in its very difference it registers a deeper similarity that should

provoke us into thinking about modern secularism differently, and how

\_Jslamic practices have been shaped under it.

When I lived in New York I would go out to the park each weekend

to hear the rumbero drummers play. In the midst of their smooth, tightly

8 INTRODUCTION

interlocking rhythm, one drummer would strike a seemingly discordant,

almost halting beat. But what sounded like a stutter at first was soon real-

ized as part of the rhythm itself, rooted in its foundations, and part of its

potential. B y actualizing that potential the drummer would get us to hear

the rhythm differently, and understand better its range of possibility. In

Egypt one finds a number of disquieting features about religious practice

that seem to strike directly against secular expectations and sensibilities.

This book aims to show how some of these disquieting features are best

A understood not as instances of modern reform gone wrong, nor as aberra-

t i o n s from secularism, but as actualizations of potentialities within secu-

larism itself, and integral to its very foundation.

V The Theoretical Problem of "Islamism"

A t the start of this project, I wasn't interested in the question of secular-

ism. Yet I found myself inexorably drawn into it in the course of this study.

Throughout my fieldwork and in further reflections upon it, my inquiries

took quite unexpected turns and led in unforeseen directions. Early on I

had to revise my project in a major way. I had to drop assumptions and

totally rethink others, a process that sometimes sent me scrambling and

often left m e bewildered. Each of the chapters here represents a stage of

this exploration. T h e conclusions of each open up the questions that are

taken up in the next. Together, they build an argument about secularism,

law, the Shari'a, and the modern spaces of power and possibility of which

they partake.

So by way of introduction I would like to briefly tell the story of how

these chapters came together, of the motivations of the initial project, the

assumptions that had to be dropped or revised, and how all of this led to

an exploration and rethinking of secularism. This will allow me to lay out

the arguments of the chapters and articulate some of the critical concep-

tual orientations that implicitly guide them.

Let me start, then, with my initial motivation. It arose out of an on-

going dissatisfaction with how the social theory literature has typically

treated contemporary Islamic religiosity, thought, and activity. A het-

erogeneous collection of activities revolving around I s l a m — w i d e s p r e a d

veiling, growing numbers of people praying in mosques, the spread of

children's Qur 'anic reading schools, the establishment of women's Islamic

study groups, the creation of Islamic banks, the emergence of popular

- . INTRODUCTION 9

preachers, the sales of cassettes and C D s featuring sermons and Qur'anic

recitations, and the activities of explicitly political groups like the Mus-

lim B r o t h e r h o o d — h a v e all been typically theorized by social theorists as

part of a single, underlying phenomenon. Theorists have, however, had

much difficulty in finding an adequate designation for it. Terms such as the

Islamic Awakening (Al-Sahwa Al-Islamiyya), fundamentalism, the Islamic

resurgence, political Islam, Islamism, and public Islam have all been used

and all been deemed unsatisfactory for different reasons. The difficulty en-

countered in finding satisfactory categories raises the question of whether

' in fact there is a single phenomenon to speak of. But the difficulty also

indexes the underlying significance of social theorists' ongoing attempts

to do so: an acute awareness of and concern over the growing numbers

of Muslims w h o seem to be adopting ways of life that are in accord with

their Islamic precepts. Consequently, this emergent religiosity is typically

seen within social theory as a problem to be explained. In other words,

TtKf overriding concern that motivates much of this social theorizing is to

explain why people today would ado£t and why they have adopted such

ways ot Hie.

That contemporary Islamic religiosity is seen as a problem within social

theory is a curious fact. W h y are some ways of life, or attemgts t o h v e ways

of life, seen to be problems for explanation while others are not? f>

For example, modern ways of life evoke different questions, ones that

are mostly about what is involved in, what is the experience of, and what

are the different ways of being or becoming modern. Consider the words

of sociologist of modernity A n t h o n y Giddens:

A feature of modernity is that distant events and actions have a constant effect

on our lives, and a constantly increasing one too. That is what I mean by disem-

bedding, the "lifting out" of forms of life, their recombination across time and

space, but also the reconstitution of the contexts from which they came . . . eco-

nomic exchange becomes more and more lifted out of the local community and

recombined across time and space. The "local" reflects much larger processes,

which in some part reshape it, perhaps in a dramatic way. What happens in the

economy happens in many areas of life as well: processes of "lifting out" and

"pushing back." Today, in a period of intensifying globalization, these effects

are more pronounced than before.8

A s illustrated in this passage, social theorists of modernity endeavor

to describe a complex reality and to elucidate concomitant experiences

INTRODUCTION 1 0

(psychological and aesthetic) and expectations (about the social world,

and about the future).

In contrast, social theorists have typically asked why people adopt

Islamic ways of life. Thus,

not only Western experts but the educated classes of the Muslim World have

been astonished over the last quarter century at the rise of a political move-

ment calling for the creation of Islamic states in majority-Muslim countries.

That many governments in Muslim countries are badly in need of reform is not

in doubt. Especially in the Middle East, dictatorships have failed to bring eco-

nomic prosperity, military dominance, or even basically legitimate government.

But why has this sorry state of affairs not led to the emergence of domestic

political movements seeking the creation of liberal democracy as we saw, for

example, in Eastern Europe? What is different about [the] Muslim world?9

A s the passage above makes clear, the question of why people today

would adopt Islamic ways of life presupposes for its plausibility that mod-

fcern desires, freedoms, and choices are natural. It is by taking them as natu-

ral that an increasing (as opposed to a stable, or decreasing) religiosity can

f be seen as a problem for explanation. It is also by taking them as natural

that the question rarely arises as to why people would adopt a modern way

of life, and that there is an emphasis on how it is lived instead. xtr

Such presuppositions are fully evident when this religiosity is explained

as a, reaction against modernity, due to the failures of modernization, dis-

satisfaction with economic and political circumstances, nostalgia for the

past and once stable identities, and attempts to secure power through slo-

gans that play upon these discontents. But these presuppositions persist

even with the recognition of contemporary Islamic religiosity as a distinc-

tively modern phenomenon and within the social theorizing established

upon this recognition. <

The Objectification of Islam—Self, Time, and Reason

I would like to pause here to briefly discuss one prevailing tendency in the

theorizing on contemporary Islam. This will help elucidate the difference

in approach I take in this book. T h e tendency I am concerned with is ex-

emplified in a long-standing set of connected ideas that remain dominant

and compelling today: the objectification of Islam and the fragmentation

and democratization of its traditional authority. Significantly, these ideas

- . INTRODUCTION

rest upon an approach that claims to question some of the pretenses of

modern thought. A n d yet it often ends up reinstating these pretenses all

the more firmly, and with them, the idea of Islamic religiosity as a problem

to be explained.

The conceptual underpinnings of this approach are concisely rendered

in a book that helped establish it, Muslim Politics by Dale Eickelman and

James Piscatori.10 A look at its arguments will show how they presuppose

and naturalize modern sensibilities, temporalities, and modes of reason.

In their discussion of contemporary Islamic movements, Eickelman

and Piscatori (henceforth E & P ) claim to be skeptical of "the oversim-

plified dichotomization of tradition and modernity" (24) through which

such movements are typically understood. They attribute this oversim-

plification to the persistence of ideas from the; once prevalent approach

of modernization theory. "The fundamental difficulty with the theory,"

they write, "lay in the sharp contrast between two artificial constructs,

'modernity' and 'tradition' and the consequent misunderstanding of the

entrenched social functions of tradition" (23-24). *

E & P argue that the negative view and definition of tradition as "pro-

cedures handed down from the past, not amenable to conscious modifi-

cation, and resistant to 'modernity '" (24), actually serves to misconstrue

the wide range of positive social functions that tradition can potentially

perform. More recent studies, they say, have shown that tradition can be

and often has been used to justify and facilitate innovation, where reform-

ers, "by defending changes as in keeping with the 'essence' of Islam," and

"tying reforms to the fundamental responsibility of Muslims to obey G o d

and those in authority . . . encourage the belief that innovative regulations

are obligatory" (24-25).

With these words, however, it is not clear whether E & P are concerned

with the conceptual foundations of the distinction between tradition and

modernity (as "artificial constructs") or with the value of tradition from

the assumed standpoint of modernity. The argument they make above

seems to be Jess about what tradition is than its presumably positive uses.

A n d its positive uses, they seem to say, lay in its effectiveness to get people

to adopt as part of their tradition what really isn't a part of it, that people

are persuaded to adopt a practice that is not really from their past through

the argument that it really is. Changes are thus recast as continuity and

authorized in its name and for its own sake.

This argument implies that traditional claims derive their effectiveness

from an obfuscating and manipulative function. That E & P see traditional

12 INTRODUCTION

claims as largely modes of obfuscation and manipulation is confirmed by

their discussion of tradition and politics. A l l claims to tradition, they say,

are invented ones. This is because there is no access to a true past; it will

always be beset with competing interpretati6n?THence7any claim based in

the authority of an authentic past is necessarily false. But any such claims,

they further argue, are inherently political. Thus,

the permanence of doctrine itself is a conceptual fiction. Established religious

hierarchies, wishing to promote their own interests as "defenders of the faith,"

suggest that divinely inspired or sanctioned principles are by nature fixed and

universally applicable. However, like all religious traditions. Islamic principles

must be constantly reinterpreted. The result is a flexibility of ideas and diver-

gence over time and space. A s Brinkley Messick says of the distinction between

the divinely ordained Shari'a and interpretations of it: "In this gap between the

divine plan and human understanding [lies] the perennially fertile space of cri-

tique, the locus of an entire politics located in the idiom of the shari'a" . . .

Assertions that credos, beliefs, or traditions are timeless and immemorial

should not obscure the fact that they are subject to constant modification and

change.11

Distinctively modern changes, they argue, have only intensified this

politics of traditional claim-making. O n c e the province of a learned few,

the traditional authority of Islam came to be fragmented and "democra-

t ized" due to widespread education, growing literacy, and mass dissemina-

tion through emerging print and media technologies. People became more

aware of the range and diversity of competing interpretations of correct

Islamic practice. They began to notice not just the discrepancies between

these interpretations but also between them and their own daily practices,

which they then subjected to greater critical scrutiny. This signaled the

birth of a new critical consciousness about Islam, upon which the politics

of traditional claims would increasingly draw.

This, however, leads to a question. H o w is it possible for an intensi-

fied critical consciousness of Islam to go together with more trenchantly

politicized claims of tradition? That is, given the greater awareness of the

multiplicity of Islamic interpretation, how does it become possible to con-

tinue to deny the realities of doctrinal flexibility and change and maintain

the "conceptual fiction" of doctrinal permanence? For E & P this is a result

of the "objectif ication" of Islam. T h e intensification of critical awareness

of debates over correct Islamic practice in various aspects of life eventu-

- . INTRODUCTION 13

ally gives rise to the impression that Islam is an abstract system of rules

and precepts that pertain to all aspects of life. T h e questioning of what it

means to be Muslim gives rise to a more self-conscious sense of Islam as a

tradition abstracted from culture and community.

E & P highlight these points through a story about an Omani commu-

nity that once generally adhered to their Islamic practices without much

questioning. A number of years later, however, "a more conscious sense of

tradition had begun to e m e r g e " within this same community, "inspired by

a cohort of young Omanis w h o had received a secondary or postsecond-

ary school education and . . . began to question what it meant to be Mus-

lim." E & P quote an Omani schoolteacher w h o says, "People here do not

know Islam; they pray and sacrifice, but they do not know why." They note

that "before the mid-1970s such a consciously critical statement would

have been almost incomprehensible in most of the towns and villages of

O m a n . "

I will return to their claim about the Omani schoolteacher in a moment.

But importantly, for E & P , this emerging idea of Islam as an abstract sys-

tem of precepts and rules for all aspects of life had another consequence:

it meant that each and every aspect of life would subsequently b e c o m e

subject to assessment and reform in light of these precepts and rules. T h e

objedi f icat ion of Islam therefore produced a new a m b i t i o n — c o m p r e h e n -

sive social r e f o r m — t o which the claims of tradition were incessantly di-

rected. IUTEIurcritical consciousness of Islam and ambition to reform that

is at the root of Islamism and why Islamists are enabled to compellingly

maintain the evidently false claims of tradition:

This process of education and social change has been intensified by mass higher

education and mass communications and has created "Islamists," that is, Muslims

whose consciousness has been objectified in the ways we have described above

and who are committed to implementing their vision of Islam as a corrective to

current "un-Islamic" practices Islamist authority to remake the world derives

from a self-confident appropriation of what they believe to be "tradition."12

What becomes evident from this discussion is that the idea of the objec-

tification of Islam is rooted in a view of contemporary Islamic religiosity

as a problem in need of explanation. For it is directed toward the task of

resolving the particular contradiction this religiosity is seen to represent:

how a growing critical consciousness could go hand in hand with the mis-

apprehension of otherwise increasingly evident truths.

1 4 INTRODUCTION

Yet this sense of a contradiction depends on an approach that accepts a

modernist conception of time, which posits the truth of necessary change

and constant novelty against any claim of permanence. It then associates

the claims of permanence with a classical Weberian notion of tradition

and traditional authority as adherence and piety to the past for its own

sake.13 In other words, the approach E & P articulate does not really ques-

tion the notions of modernity and tradition as "artificial constructs" in re-

lation to Islamic claims or movements. What it offers us instead is the idea

that tradition today is an artificial construct of modernity and contrary

to the truth of change. In seeing tradition as an aff irmation of the past as

past, this approach disregards the complex temporalities a tradition might

embody: the ways it conceptualizes and connects past, present, and future.

T n so doing, it glosses over an important difference: between appealing to

the past as authority and the appeal to past authorities. ^

Everyone appeals to past authorities all the time. But it does not fol-

low that all such appeals are therefore traditional ones. If, for example,

litigants in a court of law appeal to precedent cases, or previously enacted

codes, or the constitution, does that therefore mean that they are mak-

ing traditional claims? Such appeals would have conventionally been

understood as being of the legal-bureaucratic type and not the traditional

type. A n d when someone appeals to a past scientific authority, is that also

an appeal to tradition? E v e n those philosophers and social theorists w h o

critically question the pretenses of scientific authority still emphasize the

distinctive styles of reasoning employed in scientific inquiry, the particular

ways they draw upon the past, and the specific practices in which they are

embedded. 1 4

T h e result, then, of E & P ' s underlying acceptance of the classical notion

of traditional authority is an approach insufficiently attentive to the dis-

tinctive styles of argument and reasoning by which contemporary Muslims

reference past authorities in different ways. Neither does their approach

help us see how a tradition's heterogeneous temporalities might work to

authorize and give force to distinct styles of argument by which practices

are criticized, questioned, and justified. It also blinds us to something else:

how ways of reasoning and practice might be brought together or system-

atized in various ways for the purpose of cultivating selves with sensibili-

ties and desires thought appropriate to living a virtuous Muslim life.15

Thus to return to the O m a n i teacher's claim above, E & P might have

asked about the specific temporal assumptions that enable such a claim

to be made and be considered persuasive, and how they feature in argu-

- . INTRODUCTION 15

mentation about or over certain practices. They might also have asked

how ways of reasoning and practice were systematized for the purpose

of cultivating distinctive sensibilities. But they do not do this; rather, they

offer us all too simple dichotomies of sensibility, rationality, and tempo-

rality through their notion of the objedi f icat ion of Islam. That is, either a

self-critical awareness of previously uncritical adherence to past practices,

or self-confident Islamist appropriations of "tradition" that ignore or deny

change, and whose positive functions, if any, lay only in facilitating mod-

ern transformation and values. With this, modernist notions of self, t ime,

and reason are presumed as natural.

A s a result, contemporary Islamic religiosity can never be more than a

distorted perspective on the forces that have given rise to it. A n d while it is

recognized as a distinctively modern phenomenon, it is nevertheless seen

to represent peculiarly modern falsehoods. This tendency in the theoriz-

ing of Islam remains pervasive not only in Middle East studies, Islamic

studies, and the anthropology of Islam, but also more generally within

social and critical theory and philosophy. Hence,

we can now say that the Islamic revival is Axial or Jasperian. That is its distinc-

tion. Even in its fundamentalist expressions it is a highly rational form of moral-

Platonic thinking, divorced from ultimately segmentary-ethnic-kin-local t ies . . . .

Militants elevate this into a Utopian scheme through a politicized modernity

that accepts modern science, technological innovation, industrialism, and com-

mercialism (not full capitalism, given the Islamic rejection of usury). This is

instructive. Islam today represents unambiguous Axial reason, particularly as

militants seek to denude Islamic society of its . . . social traditionalism. It is its

Axial nature that makes the Islamic revival most frustrating to the West, in that

it exhibits what is, for the postmodern West, a hyperrational (which is to say,

modernized) version of its own past.16

T h e notion of contemporary Islamic religiosity as essentially a f o r m

of modern falsehood may help explain something else: how the modern

norms unquestioningly mobilized in critically analyzing this religiosity

are themselves incessantly questioned in a large and widely known body

of literature within social theory. This literature critiques assumptions

about modern historicity,17 questions notions of autonomous subject-

hood1 8 and presumed distinctions between political and nonpolitical do-

mains of life,19 and challenges received ideas about modern rationality and

tradition.20

I 6 INTRODUCTION

T h e question arises, then, as to how it is possible to presuppose the

truth of such modern norms in theorizing Islamic religiosity at the same

time that they a r e — a n d have long b e e n — q u e s t i o n e d and critiqued within

social theory. Comment ing on this widespread tendency, one scholar of

contemporary Islam has noted that "the reigning assumption seems to

be that where a discrepancy exists between our concepts and theirs, it is

they w h o must be in error: a selective history, an ideologized religion, an

inchoate law, a reactionary politics, a reified tradition."21 It is as if the ques-

tioning of Islamic re l ig ios i ty—which presupposes modern norms as natu-

r a l — a n d the questioning of modern n o r m s — w h i c h presupposes that they

are n o t — c o n s t i t u t e two different conversations that cannot ever meet. So

pronounced is this distinction that one finds it even among the most tren-

chant critics of the modern. Take , for example, Michel Foucault's words:

After years of censorship and persecution, years of marginality for the political

class and of the prohibition of parties, years of decimation for revolutionary

groups, what else but religion could provide support for the distress and then

the revolt of a population which had been traumatized by "development," "re-

form," "urbanization," and all the other failures of the [Shah of Iran's] regime?...

Is it, however, to be expected that this religious element will fade away quickly

for the sake of more realistic forces and less archaic ideologies?"22

Here the emergent Islamic religiosity is seen to entail a distortion of the

very reality whose normality and naturalness Foucault so often questions.

W h e n viewed in terms of modern falsehoods, and not distinctive styles

of reason and modes of cultivating distinctive sensibilities, the claims and

practices of Islamic religiosity cannot be seen to speak to the modern

norms and desires of which they are so often critical. For this reason, the

ongoing questioning of those norms within social theory and the ongoing

analysis of contemporary Muslim criticisms of those same norms remain

two separate conversations.

In discussing this pronounced separation, political theorist Roxanne

E u b e n raises an important consideration.2 3 She notes that the critiques

of modernity that arise f rom this religiosity are rooted in transcendent

foundations, while the social theory literature that explores and questions

the modern is often premised on an attempt to escape foundations of any

kind, and especially transcendent ones. It is precisely a suspicion and an

anxiety about such foundations that motivate critical theorists to try to

dispense with them. T h e distinction between transcendental and non-

- . INTRODUCTION 17

transcendental critiques thus parallels another: that between the religious

and the secular. Could it be that the suspicion by which Islamic religious

claims, practices, and critiques are kept separate and the idea that contem-

porary Islamic religiosity is a problem to be explained are related, part of

a characteristically secular impulse and anxiety, rooted in an increasingly

felt inability to secure a domain of secularity? But I am jumping ahead of

myself.

For all my concerns about the approach I have critically outlined here,

I do not wish to be misconstrued as saying that it has not been valuable

for our understanding. O n the contrary, it has helped provide a more care-

ful and sensitive analysis of the changes wrought upon Islamic practices

through modern education and emerging print and media technologies. It

is also worth noting that there is something compelling about its signature

concept of objectification. It captures important features of the contem-

porary moment: tendencies to rule-generalizing and codification, expan-

sive ambitions toward social reform, the subjection of broader and more

intimate spheres of social life to critical scrutiny and intervention, and

a suspicious and increasingly strident politics of authenticity. However,

it misconstrues these features as problems of contemporary Islamic reli-

giosity and not of the modern concepts and assumptions that have been

tried to understand—and often regulate—that religiosity. In outlining

this approach I have simply tried to register and highlight my concerns

about a pervasive theoretical tendency that it represents. A tendency that,

by assuming modern desires, sensibilities, and temporalities as natural,

frames contemporary Islamic religiosity as an aberration and a problem

needing explanation, instead of as ways of life, reason, and experience that

merit exploration and understanding. A n d as events since the attacks of

September 11, 2001, have shown us, the notion of contemporary Islamic

religiosity as problem to be explained is but a short step away from the

idea that it is a problem to be solved.

Hisba and the Case of Nasr Abu Zayd

My initial motivation, then, was to enact an anthropology of contempo-

rary Islam that was not framed by the problem of aberration. Instead of

seeing contemporary Islamic religiosity as a problem to be explained,

the aim was to use an approach and do a study that would see how it

was lived and experienced, with attention to the styles of reasoning that

I 8 INTRODUCTION

Muslims found persuasive and found obliged to respond to. I was con-

cerned to understand the sensibilities that underlay and were expressed

through these styles of reasoning. I was also interested in the conditions of

modern power that enabled and constrained such reasoning and sensibil-

ity, conditions under which they had to subsist and proceed. H o w might

such an understanding speak to, and possibly unsettle, the presuppositions

and concepts of contemporary social theory? M y interest was to do some-

thing along the lines of a number of singular works that have only now

begun to coalesce into a wider trend of social theorizing on Islam.24

That was when a court judgment, handed down by the Egyptian A p -

peals Court in 1995, caught my attention. T h e case was about a professor

at C a i r o University named Nasr A b u Zayd. A set of private c i t i z e n s —

some of them professors f rom his own univers i ty—accused him of having

written academic works that amounted to apostasy f rom Islam. A s an

apostate from Islam, they claimed, he could not be legally married to

his Muslim wife. They had thus petitioned the personal status court to

immediately annul his marriage. This was even though A b u Z a y d publicly

declared himself to be Muslim, and neither his wi fe nor he wanted their

marriage dissolved.

T h e r e was a larger background to all of this. T h e seeds of the conflict

were laid in 1993 within C a i r o University, where A b u Z a y d , up for pro-

motion, had vocally criticized the Islamic banking institutions in Egypt

that one of the influential members of his review committee had worked

to establish. A b u Z a y d was subsequently denied promotion after a harsh

review of his work by this one committee member. T h e denial sparked an

internal university battle that began to attract some international atten-

tion. In the context of this ongoing battle the court case against him was

raised.

W h a t was interesting, however, was the reasoning and argumentation

the litigants in the court, and eventually the court itself, employed. T h e

petitioners filed their claim on the basis of a religious principle that was

nowhere stated or implied in the Egypt ian legal codes, including the

Shari'a-based codes of personal status. However, they claimed the legiti-

macy of their controversial use of this unstated principle through what

could be thought of as loopholes in the current law. T h o s e loopholes,

in turn, could potentially open the law to the entire range of precepts

found within the Shari'a even though they were not explicitly stated in the

Egypt ian codes.

T h e principle that the petitioners employed was called hisba, defined

- . INTRODUCTION 19

within Islam as "the commanding of the good when it is manifestly

neglected, and the forbidding of the evil when its practice is manifest." That

the court might accept the legitimacy of this principle for private litigation

was seen by everyone to have major ramifications for a potentially wide

range of actions and expressions in both public and private life. Conse-

quently, a number of issues thought central to people's essential rights and

fundamental beliefs were brought out and argued in the course of litiga-

tion. The case thus provided a window onto the styles of reasoning and

the characteristic concepts by which aspects deemed central to Islam were

argued in an important, influential arena of social life.

The Appeals Court's decision to declare A b u Zayd an apostate im-

pacted him at every level of his life, both private and public. It not only

annulled his marriage but also implicitly confirmed the denial of his pro-

motion at the university. The enormous controversy sparked by the deci-

sion provoked the government to enact legislation restricting the use of

hisba to public officials only. But this only made everyone angry: some,

because it denied them the court sanctioned rights to use hisba, and oth-

ers, because it entailed recognition of the principle and reserved its usage

for the state. In the meantime, the case was appealed to the Cairo Court

of Cassation, which is the highest civil and criminal court of appeals in

Egypt.

I went to Egypt in the summer of 1996 to study this case and the issues

raised by it. By chance, the Cairo Court of Cassation handed down its de-

cision when I was there—upholding the Appeals Court's decision, and in

some ways going substantially beyond it. A m i d the ensuing controversy, I

spoke with several lawyers who directed me toward pertinent issues con-

cerning the case, and who helped me obtain the court documents for it.

The outcome of this research is the book's first chapter.

Even the most astute and sensitive analyses of the hisba case and the

modern forces that shaped i t — s u c h as Baber Johansen's ana lyses—

nevertheless tended to see it as an irrational aberration, not just from

modern ideals but also from the corpus of Egyptian jurisprudence that had

been developing around the question of Islam.25 In the chapter, however,

I adopt a different approach, one that evades the question of aberration.

A s I mentioned above, the high stakes involved in the court's decision, and

its potential consequences on public and private life, meant that a range

of issues deemed central to how Islam should be lived were argued out

in detail. This allowed for an investigation of the styles of reasoning that

were employed with respect to hisba, the practices within which they were

2 0 INTRODUCTION

embedded, the historical conditions of power that put them in place, and

the possibilities and constraints they created for contemporary Muslim

life and practice. That is, the hisba case could be approached as a window

onto the landscape of modern power and possibility that the Shari'a had

c o m e to inhabit in Egypt.

In the first chapter I look carefully into the argumentation the conflict-

ing parties employed, the particular ways that authorities were referenced,

and the assumptions that were made evident in the process. I focus on

the dist inctive—largely l i b e r a l — c o n c e p t s used to frame the principle of

hisba and the legitimacy of its practice in the course of litigation. I also

outline the relevant historical legal transformations that help put those

concepts and ways of reasoning in place and show how they opened up a

space for the use of hisba in the courts. Highlighting the differences be-

tween the elaborations of hisba in the courts and in the classical texts of

Islamic Shari'a, I argue that the principle and practice of hisba acquires a

distinctive thrust and import through and within the Egyptian law. While

hisba, in its classical Shari'a elaborations, was part of a form of reasoning

and practice connected to the cultivation of selves, in the courts it became

focused on the maintenance and defense of interests aimed at protecting

the public order. In highlighting this shift, my point was not to argue that

this was an authentic or inauthentic use of hisba, but rather to describe the

conditions enabling its specific uses and its then seemingly growing force

in Egypt ian life. T h e conclusions and questions about hisba that arise

f rom this first chapter will continue to expand and reverberate throughout

the rest of the book.

The Rise and Fall of a Research Project

A s I had noted earlier, the hisba judgment sparked tremendous contro-

versy and anxiety in Egypt , and there was much talk about it. T h e word

among lawyers was that hundreds of hisba cases and others like it were

currently in the courts. Much of the debate highlighted what were seen as

contradictions between secular law and the Shari'a.

Some of the lawyers I had gotten to know during my summer research

on the hisba case were part of a local human and legal rights organization.

T h e y had published a short critical report detailing certain aspects of the

law and court judgments, discussing the future foreshadowed by the hisba

decision, and asking whether Egypt was in fact a secular or a religious

state.26 That question was on the minds of many at that time.

- . INTRODUCTION 21

I realized that the piece I had written, and the analysis I had done,

didn't really provide an insight into this question. On the one hand I had

shown how hisba as elaborated in the court judgments had acquired dis-

tinctive liberal precepts. Yet on the other it seemed to subvert essential

secular tenets, such as the freedom and privacy of belief. It was therefore

unclear whether hisba was an instance of the secularization of a religious

concept or the subversion of secular legal precepts. How, then, to under-

stand the ambiguity that hisba seemed to represent?

It was also around this time that the question of secularism came to be

discussed by many different people and in many different places outside of

E g y p t — i n India, Europe, and the United States. Books and articles taking

up the question of secularism had begun to be published.27 Study groups

were created and conferences began to spring up in different places. Dif-

ficult and unsettling questions were brought up. The ambiguity of hisba,

and the question of whether Egypt was a secular or a religious state, thus

continued to loom large in my mind.

These events formed the background through which I formulated my

initial research project. I argued that the Egyptian law, as it currently

stands, is an ambiguous mix of secular and religious law. Religiously

minded lawyers had begun to systematically use these ambiguities, intro-

ducing concepts from the Shari'a in their cases in an attempt to render

judgments (and hence, precedents) that would authorize the subsequent

legal use of those concepts. In Islamizing the law, literally case by case,

these lawyers were not only subverting some of its secular tenets, but they

were also entrenching other ones even more firmly, thereby creating a

complex, powerful space for the argumentation and elaboration of Is-

lamic tradition. This movement, from the talk of the lawyers I met during

my period of summer fieldwork, had just started to gain momentum, and

its impact was being felt. My goal became to study this Islamist lawyers'

movement, who was in it, what legal ambiguities they were using, what

arguments they were making, and how the judgments they were getting

actually reconfigured Shari'a concepts and legal practices. I wanted to see

how they were shaping up the space of law and the possibilities of Islamic

argumentation and practice within it.

Yet I was in for quite a surprise when I returned to Egypt three years

later to begin this project. A f t e r observing the courts, after talking with

lawyers of all persuasions, I had to reluctantly conclude that there was

no such movement. There couldn't be, for several reasons, some of them

banal, others much less so. For example, the caseload in the courts is im-

mensely high. A hundred cases can be submitted in a single three-hour

- . INTRODUCTION

session. Lawyers have only a few seconds to introduce their cases and sub-

mit their documents. Judges, in turn, have huge stacks of case files to read.

They simply do not have the time to read and deliberate over innovative

arguments. Lawyers who make them therefore stand to lose often, and

they are on the whole too poor to risk losing lots of cases. Thus heavy

caseloads preclude innovative reasoning and have, in fact, contributed to

a high degree of routinization in case hearings and argumentation. Fur-

thermore, there is a very strong legal ideology that obligates judges (and

lawyers) strictly to the legislated texts. In practice, a judicial inspection

committee regularly samples judges' decisions, and if they display devia-

tions from the legal texts—such as the usage of Shari'a concepts not ex-

plicitly in t h e m — t h e n judges can be reprimanded, fined, moved, or, in the

most extreme of cases, dismissed.

There were also institutional issues: for such a movement to sustain

itself institutional backing was needed. Yet the one major institution that

could fulfill this role, the Lawyers' Syndicate, had been under the govern-

ment's control since 1995. The state had usurped the control of the syn-

dicate from the Islamists who initially held it after they initiated massive

protests against the government's torture and execution of Islamist lawyer

' A b d al-Härith al-Madani.

This was part of a larger wave of intense repression against Islamists

that the Egyptian government had initiated. Thousands of Islamists had

been held as political prisoners under Egyptian emergency law (in place

since at least 1967), where they suffered austere living conditions and were

subjected to torture. Islamist lawyers thus devoted much of their legal ef-

forts toward releasing them, easing their living conditions, and getting

compensation for them and their families. Such work required that law-

yers manipulate the details of administrative law, which is not based in the

Shari'a. So if there was any innovative argumentation happening, it was

largely at the level of ostensibly secular law.28

Hence, bogged down by high caseloads, low lawyer incomes, and judi-

cial constraints; besieged and sidetracked by government; and lacking in

institutional bases, the movement of the kind I described simply couldn't

get off the ground, and my initial questions for study simply evaporated. I

had to rethink my project quite seriously. I had gone in thinking that the

Islamic legal movement was quite strong, only to find it quite weak, and I

had to reflect on this weakness. I also had to reflect on the initial anxieties

that led lawyers and others to so confidently believe in the strength and

dangers of such a lawyers' movement.

- . INTRODUCTION 2 3

Moreover, my subsequent explorations of the Egyptian courts and le-

gal system led me to a thesis I had least expected. I had to conclude that

the Shari'a, as it is practiced in the space of l a w — i n the courts, codes,

and judgments—had come to conform to liberal secular expectations of

religion in significant ways. That is, in practice, the Shari'a under law was

largely confined to a domain of privacy, imbued with distinctively liberal

sensibilities about privacy and intimacy, and highly circumscribed from

policy-making practices directed at the population.

With this thesis, I was confronted with a seemingly unavoidable di-

lemma. On the one hand there was a highly liberalized Shari'a. O n the

other there was the hisba case. How are both possible under the same law

and legal system? Was hisba just an anomaly, an illiberal aberration within

an otherwise liberal law? Was it an indication of the law's incomplete secu-

l a r l y ? Here I was confronted once again by the very same sorts of ques-

tions that I had tried to evade through my study of hisba. I was thereby

forced to consider why this question of aberration seemed so unavoidable.

A s a result, I began to pursue not only the question of hisba's seeming ab-

erration but also the question of this quest ion—that is, the form of power

that confronts us with it at every turn.

The second chapter is the outcome of this pursuit. Through ethnog-

raphy I show how the Shari'a has acquired significant aspects of liberal

religion under the law. But I also show that hisba is no anomaly. In fact,

I contend that liberalized Shari'a and hisba are eminently compatible.

More, I argue that this compatibility arises out of secular power. Such a

claim is counterintuitive, to say the least. The two seem utterly opposed.

Liberalized Shari'a conforms to secular expectations of a separation be-

tween religion and politics. Hisba seems to transgress this secular separa-

tion. How can the two be compatible?

The Intractability of Secular Power

This sense of incompatibility, I argue, emerges from a continuing disposi-

tion to see secularism primarily in terms of a separation between religion

and politics. Only such a separation, it is often claimed, can secure the

rights and liberties that A b u Zayd had been denied through hisba. But it

is precisely this separation that has been so deeply questioned by recent

studies, which give a more complicated picture of secularism that better

fits the varieties of practice exhibited by secular states. Much of this recent

2 4 INTRODUCTION

theorizing has emphasized that secularism involves less a separation of

religion and politics than the fashioning of religion as an object of con-

tinual management and intervention, and the shaping of religious life and

sensibility to fit the presuppositions and ongoing requirements of liberal

governance. There is now a substantial body of literature that trenchantly

critiques the secularization narrative, showing how its categories and cri-

teria are less descriptive than normative, less universal than globalizing

projections of state power.29 These newer approaches have thus effected

a separation between secularism's normative standards and the analytic

categories used to understand them, in an effort to trace the processes

of power by which these normative standards were fashioned. A n d yet

despite these studies and critiques, the idea that hisba is compatible with

secular power is still strongly felt to be counterintuitive, and sometimes

resisted when I have suggested it.

This points to a possibility that may have not yet been considered. It

may be that much of this theorizing on secularism works to entrench more

deeply some of the fundamental features of the narrative it critiques,

allowing for a collapse of the normative and the analytic all over again.

Philosopher Ludwig Wittgenstein once wrote about how a "picture" of

something can sometimes hold us captive, limiting our understanding of

it. Sometimes, in opposing that picture, all we end up introducing is its

negative. T h e assumptions that frame the picture remain the same, and we

remain beholden to it. This, I submit, might be an unintended effect of the

recent literature on secularism.

Consider, for example, the question of modern Islamic reform. It is

typically thought that Islam, like any other religious tradition properly

reformed to fit the imperatives of secular liberal governance, will lose its

explicitly political cast. Within the framework of the secularization narra-

tive, this is part of the differentiation of social spheres and the parsing of

religion away into its own separate d o m a i n — a process that renders reli-

gion increasingly irrelevant within social life. W h e r e a religion retains or

acquires a political character and challenges some of the tenets of liberal

modernity, then this is a point where modern power has been stalled either

by opposition to it or its own fragmentary nature. It is for this reason that

instances of politicized Islam claim our attention, because that politiciza-

tion indicates that it has not been rendered irrelevant by the processes

and power of secularization, a phenomenon that raises the possibility of a

nonsecular modernity.30

B u t by so doing we have implicitly conceded the framing assumption

of the secularization narrative itself, that the measure of the relevance of

- . INTRODUCTION 25

a religion is the extent to which it is politicized. That is, in critiquing the

secularization narrative by pointing to politicized religious movements,

we are measuring what secularism is and does, as well as its failure or suc-

cess, using the criteria supplied by its own ideological self-description. In

this way we collapse secularism's normative categories into the analytic

ones that we would use to analyze it. We thereby remain captive to its

own image, which draws us away from thinking outside the possibilities

its framework provides, or more importantly, the modalities of power that

the framework articulates.

Rarely do we consider the possibility, for example, that secular power

works precisely by continually politicizing those traditions it designates as

religious, and that it is the politicizing of these traditions that renders them

irrelevant in significant ways—something that would force us to change

our conceptions of relevance. Neither do we consequently consider that

it is perhaps those religious practices that have been deeply configured

through modern liberal reform, are by and large apolitical, and do not in

any particular way oppose liberal secular tenets, that evade secular power

in significant ways and offer possibilities for rethinking it. Yet this is just

what I will suggest in the course of this book.

The problem I have identified here arises, in part, out of an approach

that sees secularism as a project that seeks to establish a set of norms for

the purposes of liberal governance, and whose power resides in the suc-

cessful establishment of those norms. There is much in this that is certainly

correct, and such an approach has taught us much. Yet it may also obscure

important features of secular power. This becomes evident when we en-

counter a place where those norms are not entirely followed. For then we

tend to say that this is where the secular project has not yet succeeded or

been fully established, or where it is being resisted. A n d this enables us

to say that secularism there is incomplete, partial, failed, precarious, and

so on.

So that with respect to hisba, it becomes possible to see it as incom-

patible with and a deviation from the norms that secularism purportedly

seeks to establish. A n d with respect to the recent rise of Islamic religios-

ity, it inevitably becomes cast as an aberration of some k i n d — i f not mo-

dernity, then certainly secularity. A n d when it comes to Egypt, it doesn't

matter whether one embraces older views of secularism or more recent

approaches; one can still cast it as partially or precariously secular. But

this is an approach that, as I have noted earlier, begs the very question of

how secularity is defined and secured. Because what it tends not to address

is a prior question: how it identifies those norms the secular project seeks

- . INTRODUCTION

to establish. These are simply assumed to be the ones articulated by the

secularization narrative. N o doubt the more recent approaches to secular-

ism articulate an important difference from earlier understandings. While

in earlier understandings secular norms were seen as natural, and con-

nected to freedom, the newer approaches now see them as constructions

of power and therefore connected to control and constraint—a reverse of

the earlier image. Nevertheless, the norms continue to be seen primarily

as descriptions to which a social reality is shaped by and for power, and

which therefore provide a measure for how well that reality has been or

can be shaped. Yet this is to remain beholden to the standards and crite-

ria supplied for the success or failure of the very narrative that is under

critique.

In making these points I do not mean to say that we should not take the

norms of the secularization narrative into consideration in order to un-

derstand secular power. The question, however, is how: whether as things

that secular power aims to establish, and thus measures for its success or

failure, or rather in terms of the work they actually do as part of secular

power. But more, I do not think that the kind of predicament I have de-

scribed above is merely a product of intellectual errors. It is, I suspect, an

expression of a deeper intractability that is a peculiar feature of secular

power. Indeed, I suspect that secular power works by rendering precarious

and even undermining the very categories on which it ostensibly depends

and aims to establish. More specifically, it effects, and works through, a

continually felt gap between the aspirations of its political concepts—re-

ligious freedom and to lerance—and the attitudes normally thought to

come with t h e m — a generous disposition and a democratic sensibility.

This gap, in turn, helps animate the kinds of continual normative ques-

tioning, critique, and suspicion typically seen as characteristic of a secular

disposition. One of my central aims in this book is to outline some of the

conditions that sustain and shape this felt gap, and the consequences of

the continual questioning it creates.

I argue that it arises, in part, from two related things about secularism

that haven't together received enough attention. First, that as a process of

defining, managing, and intervening into religious life and sensibility, secu-

larism is historically and remains today an expression of the state's sover-

eign power.31 A n d second, that as a feature of the modern state's growing

regulatory capacity, secularism has long been, and is increasingly, fraught

with an irrevocable indeterminacy. Focusing on these two aspects will shift

our attention more securely to what secularism does, without invoking its

- . INTRODUCTION 27

normative categories and standards as the analytic measure for what it

does, and which facilitate notions of partial, precarious, or complete suc-

cess. For the peculiar intractability of secularism lies not only in the norma-

tivity of its categories, but significantly, in the indeterminacies it provokes.

These indeterminacies, in turn, powerfully contribute to the continually

felt gap between the ideals secularism promotes and the attitudes typi-

cally thought to be associated with them. These are not, however, the in-

determinacies that typically arise from the vagueness and interpretability

endemic in some degree to all human practices, and which are well known.

Neither are they the ones that arise from changing social conditions, which

sometimes require us to revise our definitions. The indeterminacies I will

focus on here are, by contrast, highly specific and historically entrenched;

they are fraught with distinctive sensibilities and anxieties and indissolu-

bly linked to the sovereign power of the modern state.

N o accounting of hisba's relationship to secular power can do without

a consideration of these links.

Secularism as a Historical Problem-Space

To better elucidate these links, I want to elaborate an alternative approach

to secularism—one that emerges from the ethnography but elements of

which I would like to make explicit here. This approach acknowledges

the importance of the imposition of regulatory norms concerning the re-

ligious and the secular that recent studies have so aptly focused upon, but

it also shifts the emphasis from those norms to the underlying questions

and attached stakes in response to which they are continually adduced,

established, contested, and undermined. T h e approach I take therefore

sees secularism as a set of processes and structures of power wherein the

question of where to draw a line between religion and politics continually

arises and acquires a distinctive salience. I say a distinctive salience because

under a secularist framework this question never arises as a simply techni-

cal or merely academic one. On the contrary, it is ineluctably invested with

high stakes, having to do with the definition and distribution of the funda-

mental rights and freedoms of citizens and subjects. The answers to it are

thus seen to have inescapable consequences for how essential freedoms

are identified, selves and their motives are defined, and ways of life can be

lived. A n d so it is a question always suffused with affects, sensibilities, and

anxieties that mobilize and are mobilized by power.

2 8 INTRODUCTION

T h e connection between this question and these stakes is a historically

distinctive one. While there were certainly discussions and instances of the

separation of temporal and spiritual power during, for example, medieval

Christian and Islamic times, they nevertheless arose under very different

presuppositions as well as legal, political, and social conditions, and thus

elicited and mobilized very different desires and anxieties.32 In particular,

the just distribution of the fundamental rights and freedoms of citizens

and subjects in a diverse polity was not seen to depend on a principled

distinction between religion and politics.33 W h a t therefore distinguishes

secularism as a historical phenomenon is not just the question of where

to draw a line between religion and p o l i t i c s — w h i c h may have medieval

a n a l o g u e s — b u t its historical connection with a set of specific stakes, one

that has ineluctably shaped the forms it now takes, the sensibilities and

anxieties it mobilizes, the range of answers thought appropriate to it, and

the kinds of power it facilitates.

In saying this, I adapt anthropologist David Scott's notion of a "problem-

space," which he describes as

an ensemble of questions and answers around which a horizon of identifiable

stakes (conceptual as well as ideological-political stakes) hangs. That is to say,

what defines this discursive context are not only the particular problems that get

posed as problems as such (the problem of "race," say), but the particular ques-

tions that seem worth asking and the kinds of answers that seem worth having.

Notice, then, that a problem-space is very much a context of dispute, a context

of rival views, a context, if you like, of knowledge and power. But from within a

problem-space what is in dispute, what the argument is effectively about, is not

in itself being argued over.34

A p p r o a c h i n g secularism as a problem-space, then, means to see it in

terms of the ensemble of questions, stakes, and range of answers that have

historically characterized it. A t the center of this ensemble is, as I have

noted, the question of where to draw a line between religion and politics

(and a presupposition that there is a line to be drawn). T h e identifiable

stakes are the rights, freedoms, and virtues that have become historically

identified with liberalism, such as legal equality, f reedom of belief and ex-

pression, tolerance, as well as the possibilities and justifications for peace

and war.35

This approach has many virtues. In focusing us as much on the ques-

tions as on the range of answers given, it forestalls the tendency to single

- . INTRODUCTION 29

out any one answer, historical or contemporary, as more or less correct.

Because what matters in this approach is less the propriety of the distinc-

tions made than what they are made in response to, the stakes that are

involved, and the social consequences. It therefore does not easily lend it-

self to a scale of normative secularity. Also, in focusing us on the questions

and connected stakes, this approach prompts us to consider the conditions

under which they arise, endure, and acquire their compelling character, as

well as the concepts, practices, and processes by which they are answered.

This is key for my argument.

My argument is that the processes by which secular doctrine is imple-

mented incessantly generate the very question that doctrine aims to an-

swer; namely, where to draw a line between religion and politics. That is,

the processes by which that line is drawn work to unsettle that very line.

A n d thus what best characterizes secularism is not a separation between

religion and politics, and not simply state regulation of religion, but an

ongoing, deepening entanglement in the question of religion and politics,

for the purpose of identifying and securing fundamental liberal rights and

freedoms. This ongoing entanglement is a feature of the expanding regu-

latory capacities of the modern state, and it is something we see through-

out the history of the paradigmatic secular states right up to the current

moment.

In saying this, I do not mean to say that we are all somehow incom-

pletely secular, that is, to contrast an ideal with a reality, to show how it

doesn't, or will never, measure up. Nor is this an attempt to "unmask"

secularism, to show it up as a myth and thus a kind of religion that has its

own articles of faith. Neither is my point simply to say that the secular and

the religious mutually interpenetrate. Al l of these positions presuppose,

in one way or another, normative conceptions of the secular and the reli-

gious, as if they each had distinct, transhistorical essences. They thereby

ignore the processes and practices by which the essences of the secular

and religious are continually defined and redefined. More, they keep us

focused too singularly on the normative categories and thus on the idea

that the power of secularism lies in their normativity. But this is mistaken,

as the constant, often strident questioning and redefinition of these very

categories has also been a distinctive historical feature of secularism.

The notion of a problem-space, however, allows for this contestation;

it prompts us to consider instead how secularism's power may lie more in

the underlying question it continually provokes and obliges us to answer

than in the normativity of the categories it presupposes. For the question

- . INTRODUCTION

of religion and politics has not only endured, it has also become all the

more pressing, underlying a broadening array of concerns in contempo-

rary social life. Thus: should polygamous, gay, or any form of marriage

be b a n n e d — w h y ? How do we respond to the claims of blasphemy and

injury that circulated around the Danish cartoons of the Prophet and the

demonstrations they provoked? Is it possible today to distinguish between

anti-Zionism and anti-Iudaism, and who decides—defenders or critics?

In defense of which forms of life is violence, and consequent collateral

damage, justified? The question of whether and where to draw a line be-

tween religion and politics is at the center of all these concerns. In order

to address them in a manner both consistent and intelligible (whatever

the positions taken), one cannot avoid addressing this question. It has an

enduring, increasingly obliging, character.

It is this enduring, obliging character that I am concerned with here. I

argue that it is historically connected with modern state sovereignty and

its constitutive indeterminacies. In approaching secularism as a problem-

space, then, I aim to highlight some of its durable structures of power

and instability, and show how they incessantly generate a question whose

answers and whose high stakes are ones to which no one, especially today,

can remain indifferent.

What are these structures of power and instability, and how do they

continually raise the question of religion and politics? This is what I begin

to address in the second chapter of the book. I focus particularly on those

features that underscore the centrality of the modern state and especially

its legal power—embodied in "the rule of l a w " — f o r secularism. Central

to this discussion is a concept at the heart of the rule of law, and which

it is responsible to protect: the legal concept of public order. What I call

the "active principle" of secular p o w e r — t h e state's authority to decide

what counts as essentially religious and what scope it should have in social

l i fe—rests crucially upon the legal concept of public order. But because

the notion of public order is an expression of state sovereignty, it is bedev-

iled with paradoxes and contradictions that blur the distinction between

religion and politics and incessantly raise the question of where to draw the

line between them. In the chapter, I show how both a liberalized Shari'a

and hisba are made possible under law and through the legal concept of

public order. What hisba demonstrates is not how there can be deviations

from secularism but rather how secular power works to entangle social life

in the question of religion and politics. It shows how secularism itself tends

to make religion into an object of politics.

- . INTRODUCTION 3 1

Hisba also helps demonstrate something else: how secular power en-

ables the assertion of the state's sovereign capacity into broader and more

intimate domains of social life. That secular power increasingly enables

state sovereign capacity is a key argument of this book. It points to the

possibility that secular power brings together two things typically thought

to be opposed: a growing space of normative critique and contestation,

and the increasing assertion of state sovereignty within social life.

Dominant views of state sovereignty today see it as on the wane, as in-

creasingly critiqued, reformed and undermined as a concept and practice

within a now globalized, neo-liberal world. My claim about sovereignty

contradicts these views. Sovereignty has been claimed, critiqued, con-

tested, and undermined ever since its inception as a modern concept.36

That has not diminished its importance as an organizing concept of con-

temporary life. Nevertheless, it is worth briefly explaining what I mean by

state sovereignty.

When I speak of the expansion of sovereignty I mean to call attention

to two things. The first is the state's expanding regulatory capacity over and

within social life. This is not, however, to convey an imageTifan already

existing social life, upon which the state then asserts itself. Rather, as I

show in the following chapters with the notion of public order, the state's

regulatory capacities are co-constituted along with the social domains

to which those capacities are directed. Neither is this to convey an im-

age of state control over social life. The emphasis is on the word capacity,

which is not the same as control. By capacity I mean the state's in-principle

right and responsibility to regulate should this be deemed necessary.

Thus, when the public order is genuinely threatened, it is the state that

is expected to intervene; it has the right and responsibility to intervene

in a way that, say, a corporation, an N G O , or a civil society organization

does not.37 When the state is either unwilling or unable to intervene into

those situations where it is felt that the public order is genuinely threat-

ened, then this becomes one basis to designate it a failed state, one that

no longer possesses the characteristic of sovereignty and is therefore open

to outside intervention. What this demonstrates is that the very principle

of state sovereignty entails that the state be properly imbricated within

^ the sociality over which it ostensibly presides. What I speak of, then, is the

expansion of the state's right and responsibility to regulate along with

the proliferation of social domains. My argument, in part, is that the no-

tion of public order is involved in constituting and authorizing social life

more broadly and more intimately, and that this, in turn, evokes the state's

3 2 INTRODUCTION

in-principle right and responsibility to regulate more broadly and more

intimately.

This brings us to the second aspect I mean to call attention to. Sov-

ereignty is more than just the state's regulatory capacity. It is also a cen-

tral organizing concept of contemporary life. A s such it brings together

commonplace concerns into a specific constellation of desire and anxiety.

Thus, for example, the desire to have some degree of stability and security

in everyday life is commonplace. But there is no intrinsic reason why such

a desire should lead to arbitrary decisionism (i.e., the sovereign excep-

tion) as an inevitable outcome. The idea that it does is a source of great

anxiety. Neither is it necessary that social life be conceived primarily in

terms of security, or of public order and its defense. This would seem to

contradict modern ideals of freedom and autonomy. But these ideas are

brought together as somehow necessary to each other by sovereignty as a

central organizing concept of contemporary social life within the context

of the modern state. Discussions and debates about state sovereignty, the

attempts to establish and maintain it, and the social projects for which it

is deemed indispensible all display this constellation of desire and anxiety.

Thus when I speak of the assertion of state sovereignty into broader and

more intimate domains of social life, I mean not only the regulatory capac-

ity described above, but also how these domains come to be thought of in

terms of decisionism, public order and its defense, and security. These form

the elements of what I call the problematic of sovereignty. In this book,

I am concerned not only with the state's expanding regulatory capacity

but also the problematic with which it is associated. A n d while I will not

explicitly discuss sovereignty very often, I will be continually concerned

with how the different aspects of its problematic are related to each other

in and through secular power. My argument is that the indeterminacies

secular power continually produces create a space of normative critique

internal to it, one that enables state sovereignty and its problematic within

social life. Hisba is a poignant demonstration of this.

Secular Suspicion and Religious Authority under the Rule of Law

So far I have made four central claims. First, in casting secularism as a

problem-space, I have argued that its power is not only in the regulatory

norms it imposes but also in the range of questions and attached stakes

that it entrenches in social life and makes very difficult to avoid. That is,

- . INTRODUCTION 3 3

secularism must be crucially understood as a questioning power, a mo-

dality of power that operates through the activity of questioning that it

animates. Certainly, questions require presuppositions under which they

arise, become askable, answerable, and considered worthwhile; such pre-

suppositions could be seen as a kind of norms. Yet at the same time we

often see norms as obliging and questions as potential sites of challenge

to the obligations that norms impose. Questions (and the activity of ques-

tioning) are, after all, the foundation of critique, and as such, expressions

of doubt, skepticism, and suspicion. How they can be a form of power, the

particular ways we can find ourselves bound to them, has therefore not

been explored as systematically as normalizing power has. This is impor-

tant, however, as secularism is a form of power crucially involved in the

questioning of the norms it establishes.

Connected to this is the second claim: that it is secularism itself that

makes religion into an object of politics. This is part of what it means to

say that secularism is rooted in an activity of questioning, whereby dis-

tinctions between religion and politics are incessantly blurred as they are

being drawn. This is not to say, however, that before secularism religion

wasn't used and abused as a political idiom or for political reasons. Sure

it was. But what matters is that with secularism the possibility of such use

becomes viewed differently. For one thing, any use of religion for politics

becomes an inauthentic use. For another, any such use is seen as especially

dangerous, having potentially serious and widespread political effects. A s

a result, religious claims are viewed with both suspicion and anxiety: sus-

picion that they are really claims of political power or personal gain, and

anxiety about the wider political ramifications of allowing such claims to

be used in this way.

In other words, under secularism a distinctive politics of religious au-

thenticity becomes possible. It becomes possible to impugn the authority

of a religious claim by saying that it is really made (or made possible) for

political reasons. Religious claims are more than just errors; they are also

always potential deceptions whose ulterior motives of power stand to be

unmasked and exposed. Religious claims are therefore up for special scru-

tiny, objects of characteristic suspicion and ongoing anxiety.

The third claim I have made is that a rule of law is indispensible to

how secular power works. The state's authority to decide what counts as

religious and what scope it can have in society is crucially vested in a rule

of law, and thus the law is always entangled in the question of religion and

politics. The rule of law is therefore at the foundation of secular power and

- . INTRODUCTION 3 4

instability. Related to this is the fourth claim: that secular power brings a

growing space of normative critique together with the increasing assertion

of state sovereignty within social life.

The question thus presents itself: how does secularism, as a questioning

power, with the all the suspicion and anxiety it generates, maintain and

expand itself within social life? How is this suspicion and anxiety featured

in the rule of law? A n d how does the rule of law consequently structure or

transform the authority of religious traditions, such as the Shari'a, that are

subsumed under it? What possibilities does it create for the assessment

and critique of authoritative Islamic claims? A n d how does it open those

claims into a space of politics and increasing sovereignty?

These are the questions I take up at length in the third, fourth, and

fifth chapters, which center more fully upon an ethnographic comparison

between the personal status courts and the Fatwa Council of Al-Azhar.

In fact, my investigation in these chapters was prompted by some of the

conspicuous differences I saw in the practice of the Shari'a between the

courts and the council. I noticed that the even though both derived their

authority from the Shari'a, few people would obey court judgments with-

out coercion, while people tended to follow fatwas even though there is

no way to force them. A t the same time, even though there are a number

of safeguards in place in the courts to prevent legal manipulation, court

proceedings are permeated with suspicion on many levels. The council, on

the other hand, has no safeguards against such manipulation, and yet there

is comparatively little suspicion on any level, even in instances where such

manipulation seems evident. Now, as I noted above, both the personal sta-

tus courts and the Fatwa Council of A l -Azhar derive their decisions from

the Shari'a and deal with overlapping sets of issues. So why do people feel

bound to the fatwas of the council but not to the judgments of the courts?

A n d why is there is so much suspicion in the courts, but so little in the

council?

The phenomenon I observed in the personal status courts was not re-

stricted to them; it seemed to be a feature of all courts in all kinds of

jurisdiction. In other words, it seemed to be a larger feature of the rule

of law in Egypt. But more, it seemed to reflect the paradoxical authority

that attaches to the rule of law more generally, and which has been widely

discussed in various forms within legal theory.38 That paradox is reflected

in the contradictory sentiments and claims often made simultaneously

about the law. On the one hand, it is claimed that law as a rule does not

bring justice and is instead often a condition for the abuse of justice. Law

- . INTRODUCTION 3 5

is therefore a source of deep distrust. On the other hand, it is claimed that

justice generally cannot be had without law. Law is therefore an indispens-

able source of legitimacy. It is hard to see how this distrust and legitimacy

go together.39 A n d yet they seem characteristic features of the rule of law.

A version of this paradox is found with respect to the personal status law.

People view the personal status courts' decisions with distrust even when

they are evidently from the Shari'a. Yet they see the Shari'a as indispens-

able to personal status law and the legitimacy of court decisions. That such

a parallel paradox is found with respect to the personal status courts but

not the council indicates that it is a dimension of the rule of law.

In these three chapters, I explore how the suspicion exhibited in the

courts is connected with the paradoxical combination of distrust and le-

gitimacy that they provoked. I detail, in an ethnographic manner, the very

different structures of authority displayed by the council and courts respec-

tively, and call attention to the poverty of our understanding of authority

more generally. My argument is that suspicion and legal entrenchment go

hand in hand in a kind of looping effect. Ongoing suspicion over legal

manipulation and legal loopholes tends to foster legislation intended to

cover those loopholes and prevent such manipulations. A n d yet increasing

and increasingly complex legislation opens up more potential loopholes

and possibilities for manipulation, thereby fostering ongoing suspicion and

distrust. Thus the law proliferates and becomes increasingly entrenched

as suspicion and distrust about it also spread.

I further argue that this proliferation is consonant with the expansion

of the regulatory capacities of the state, and that it is rooted in a central,

defining tenet of liberalism: a constant vigilance against all possible abuses

of power. A s the regulatory power of the state expands into more and

more domains of everyday life, legislations concerning those domains ac-

company that power. The domains thus become subject to the possibilities

of manipulation and forms of suspicion that come with the law and courts.

A s more and more domains of life become subject to the law they also

become subject to various forms of state intervention. These interven-

tions, in turn, constantly create situations where it becomes difficult to

distinguish legal from nonlegal actions. This indeterminacy creates spaces

of anxiety that open up into politics and legislation.

Thus the rule of law, as part of the liberal regulatory state, constantly

produces spaces of exceptions wherein it constantly expands. Distrust, sus-

picion, exceptions, and expansion are endemic to this distinctively modern

process. When the Shari'a becomes subsumed under the rule of law, it

- . INTRODUCTION

may also begin to acquire some of these features. I demonstrate this by

invoking the hisba case of A b u Zayd once again, and how as hisba under

the law came to be an ambiguous, indeterminate principle, it also became

entangled within a particular structure of suspicion. I also discuss how the

issue of gender and the Shari'a arises as a vibrant political question within

the space of law and the courts. Within this space, authoritative Islamic

claims are always suspected of being forms of manipulation even when

they are clearly and directly taken from the Shari'a. They are thus subject

to unmasking to expose their underlying political motivations. In contrast,

with respect to the council and the fatwa, gender as a political question

does not arise. This is even though both spaces are controlled almost en-

tirely by men and are thus spaces of evident gender inequality.

Both the examples of hisba and gender highlight the distinctive ways the

authority of the Shari'a is structured under the rule of law and within the

courts and how it begins to display aspects of the suspicion, distrust, and

legitimacy that attaches to the rule of law. This contrasts highly with the

forms of authority displayed in the practice of the Fatwa Council. Through

a detailed ethnography of the council, I propose that the practice of the

fatwa be seen as a form of the care of the s e l f — a n ethical practice by

which a self moves forward in life's affairs in a way consonant with the vir-

tuous life envisioned as part of Islamic tradition. Even though the council

is a product of modern reform, it does not partake of the same conceptual

and affective structures that characterize the Shari'a under the rule of law,

and which are crucial to the exercise of secular power.

By the end of these three chapters I hope to have shed some light upon

the questions asked when I began them; namely, about some of the con-

ceptual and institutional conditions of characteristic secular anxieties and

suspicions through and under law, how the authority of Islamic tradition

is consequently structured within the space of law, and how that opens it

into a space of politics and sovereignty.

Islamist Lawyers in an Emergency State

The final chapter continues the discussion of how state sovereign power

structures religious authority. It focuses on how Islamist lawyers engaged

the Egyptian emergency state through their legal practices. A s I men-

tioned earlier in this introduction, Egypt has been under a state of emer-

gency since at least 1967. So long has it been under this state of affairs

- . INTRODUCTION 3 7

that emergency law has become normalized in Egypt in various ways. But

the state's emergency powers were also used as part of a massive wave of

repression against Islamists, whereby thousands had been placed under

indefinite detention and subjected to torture over the years. Islamist law-

yers had consequently expended much effort devising legal strategies to

provide some relief for these detainees. Those strategies, in turn, brought

up questions about the rule of law in relation to the emergency state and

the possibilities for conducting legal practice within it.

But the reflections of this chapter were prompted by more than just my

field experiences with these lawyers. They were also prompted by a set of

considerations and discussions that arose in the aftermath of the attacks

of September 11,2001, which happened just a few months after I returned

from an extended period of fieldwork.

September 11 and the political and legal changes that manifested in its

wake spawned a widespread interest in the notion of the state of emer-

gency. People began to look again at an older, disparate set of writings

about legal violence, the rule of law, and emergency states.40 Within these

discussions, the notion of the sovereign state of exception—the sovereign's

definitive power to suspend the rule of law to protect the public o r d e r —

emerged as a central or even constitutive feature of the modern state. The

sovereign exception, it was found, had a history that could be traced as

part of the expansion of modern state power. Differences between the

normal and the exceptional state of affairs were increasingly seen to be

ambiguous. Several articles, for example, showed that the United States

had been in a state of emergency for decades, at least since World War II.

Similar ambiguities were highlighted throughout the histories of other

Western democratic states.41 In light of this literature, Egypt's long state

of emergency could no longer be seen as something exceptional. Instead,

it seemed to be consonant with modern norms.

Reflected in these discussions about the emergency were concerns

about the uncertainties and dangers encapsulated in modern state power.

But September 11 provoked another set of discussions as well. They re-

volved around whether and what kinds of dangers religion and religious

ways of life posed, and how to remedy or defend against those dangers.

Implicit in this discussion of dangers and remedies was the notion of secu-

larism as a form of power.

There were thus two parallel conversations. One was about the un-

certainties and dangers of modern state power. The other was about the

dangers of and defenses against religion, which implied the notion of

- . INTRODUCTION

secularism as a form of power. Yet the two rarely, if ever, met.42 Given

that Egypt's long state of emergency was no longer an exceptional case,

and that it justified that emergency as a defense against a religious move-

ment, might not the situation there provide some insight into these con-

versations? Might my experiences with Islamist lawyers in Egypt speak to

both and bring these conversations about the emergency state and secular

power into some kind of proximity? These were some of the consider-

ations that prompted my reflections in the final chapter.

In it I discuss how the emergency state in Egypt has made possible a

"language of justice" rooted in and resonant with Islamic narratives and

Islamic tradition. Islamist lawyers articulate and employ that language in

their litigation work. What is interesting about this language is that while

it is critical of the idea of "the human" as essentially a subject of rights,

it is nevertheless aimed at facilitating legal practices that rely essentially

upon "the human" as a subject of rights. I contend that this fact reveals a

fundamental relationship among secular power, the rule of law, and the

modern state. My argument is that the long duration of the state of emer-

gency in Egypt has created a space where the normal and the exceptional

aspects of the law come together. It is a space of anxiety and violence, and

it shows up some of the limits that inhere within the rule of law. Lawyers

who work in this space are therefore required to find ways to overcome

those limits; they do so by invoking concepts and narratives resonant with

Islamic tradition and use them in their legal practices in highly specific

ways. This invocation is part of an attempt to set the law that has been

suspended back in motion again.

But how is it possible for them to do this using such invocations? In the

chapter I highlight how this possibility arises out of the legal concept of

the public order, whose paradoxes and contradictions I detail in chapter 2.

Part of the modern legal distinction between public and private, the public

order is a pivotal concept that pertains at once to the rule of law—which

must protect it, and the sovereign except ion—if the rule of law is inad-

equate to its protection. But the public order is seen also to express the

principles and sensibilities of particularist narratives, putatively rooted in

majority sentiments, but that are also deemed foundational to the state.

The suspension of the rule of law can be made in the name of the public

order and for its defense. A n d yet the invocation of the principles, narra-

tives, and sensibilities seen to underlie that public order can be made to

set the law back in motion. Since in Egypt Islamic tradition is seen to be

an important part of the public order and foundational to the state, then

- . INTRODUCTION 3 9

those principles, concepts, and narratives that are resonant with it can be

invoked in the name of the rule of law. This is what Islamist lawyers do.

That Islam is designated as part of the public order and foundational to

the state might seem to be a contradiction to secular power. However, as

I discuss in chapter 2, this designation actually enables the state to restrict

the social range of Islam and to exercise the active principle of secular

power, which is the state's authority to decide what counts as religious and

what scope it can have in social life. It could therefore be argued that the

very principles that enable state secular power also make possible the use

of languages of justice—including religious o n e s — t o engage that power

effectively.

I have noted that the legal concept of the public order is part of the

modern distinction between public and private. What I have called the

question of secularism—the question of where to draw a line between

religion and pol i t ics—is one that is seen to have consequences for the

public order. It is for the protection of the public order that the state is

endowed with the authority to decide where to draw that line. A n d it is

within the law that this authority to decide is typically vested. But when

the law cannot protect the public order, then it can be suspended through

the sovereign decision, through the sovereign's definitive power to make

exceptions. What this shows is that secular power is not only rooted in

the rule of law but also is enabled by the sovereign exception that inheres

within the rule of law.

The latent connection between secular power and the sovereign ex-

ception is becoming increasingly apparent and more poignantly felt today

as states continue to adopt extralegal measures to purportedly defend

against the alleged dangers of religious violence. More and more of social

life is being framed in terms of the concepts and practices of "national

security"—a paradigm that has now achieved a nearly global ascendance.

A s the condition of emergency becomes increasingly and expansively nor-

malized, the limits of the rule of law become only more starkly evident.

But, as I mentioned above, Egypt has deployed these concepts and prac-

tices of "national security" for decades now, under the explicit pretext

of defending against religious violence. Does its recent history therefore

show us an impending secular future? One that portends a growth in re-

ligiously resonant languages of justice, enabled by and ever more deeply

intertwined with the ostensibly secular legal languages that they critique

but try to facilitate? Like two hands that in constantly redrawing each

other draw each other closer together? I leave these as open questions,

- . INTRODUCTION

but in asking them, I hope to have brought two distinct conversations that

emerged after September n , one about emergency states and the sover-

eign exception, and the other about secularism as a form of power, into a

more intimate proximity.

Secular Power and Paradox

A s is evident from the story I have told, I came across a number of para-

doxes in the course of my exploration of Islamic legal practice in Egypt,

ones that indexed deeper questions about secularism and secularity. Was

hisba an instance of the secularizing of a religious concept or the subvert-

ing of secular legal tenets? How was it possible to have a case like hisba,

which contradicts secular expectations, and a deeply liberalized Shari'a,

which conforms to them, under the same law? The Shari'a, though seen

as indispensable to the law, is subject to intense suspicion and exercises

little apparent authority under it. But in the space of the Fatwa Council,

that suspicion is lacking, and the Shari'a within it exercises great author-

ity. How is this contrast to be understood? The emergency state makes

possible the use of a language of justice, rooted in Islamic tradition, that

is critical of "the human" as essentially a subject of rights. Yet it is aimed

at reinstating and facilitating legal practices that rely essentially upon

"the human" as a subject of rights. What are the conditions that make this

possible?

Through a range of methods—analysis of case reasoning and court

judgments, the study of laws and legislations, attention to specific histori-

cal legal changes, ethnographic observation of sessions in the personal

status courts and the Fatwa Council of Al-Azhar, and following Islamist

lawyers' legal w o r k — I explore some of the conditions under which these

paradoxes arise.

They arise, I argue, out of secular power itself. Secularism should not

be seen solely as a separation between religion and politics, or simply

as a process of imposing regulatory norms within social life. Like two

hands constantly drawing each other, erasing each other, redrawing each

other, and drawing each other closer in the process, secularism's power is

woven with paradox. To better grasp this paradox, secularism should be

approached as a problem-space—a historical arrangement of power in

which the question of how and where to draw a line between religion and

politics becomes seemingly indispensible to the practical intelligibility of

INTRODUCTION 41

our ways of life. Whether Egypt is a secular or a religious state is but one

expression of this pivotal question. We should therefore inquire into the

conditions that enable this question to so forcefully arise, the characteris-

tic forms it takes, and the principles, mechanisms, and spaces under which

it is variably decided and so deeply, continually unsettled. The chapters

that follow outline some of these features and show how they are beset

by tensions that tend to make religion into an object of politics. By high-

lighting these features and their tensions, by showing how they shape the

elaboration and practice of the Shari'a in modern Egypt, I hope to shed

some light upon the questions with which I began, about how secularism

works, the work it does within social life, and the paradoxical quality of

its power.

C H A P T E R O N E

The Legalization of Hisba in the Case of Nasr Abu Zayd

Since the beginning of the nineteenth century, the Egyptian state has

been involved in a modernizing project. That is, it has been involved

in an ongoing project to restructure its governing institutions to efficiently

govern and improve the lives of its subjects according to standards derived

from West European states. But the Egyptian state, throughout this proj-

ect, has had to confront a central question: to what extent can and should

it incorporate the long-standing Islamic traditions (collectively known as

the Shari'a) that had become deeply embedded in Egyptian social insti-

tutions, and which exerted authority over a wide range of social activi-

ties? Thus deeply rooted and widely authoritative, the Shari'a has been a

principal target of transformation and concern right from the start of the

Egyptian modernizing project.

The law and the legal system have played (and still do play) an important

role in this Egyptian restructuring project. The extension of Western-style

legal concepts and institutions into the lives of Egyptians has increasingly

constrained and enabled the various ways Egyptians can live. A n d the

Shari'a, once a key point of reference for a wide array of social activities,

has subsequently become subordinated to and transformed by these new

legal conditions. Concomitantly, the law has become a fundamental site of

Islamic argumentation and practice, and invocations of the authority of

the Shari'a within the law affect the ways that the Shari'a is conceptualized

and practiced. For precisely this reason, contemporary Egyptians cannot

avoid taking legal conditions into account when attempting to reassess

the role of Islam in their lives, both personal and political. For the same

reason, any adequate analysis of Islamic practice in Egypt today cannot

43 CHAPTER ONE THE LEGALIZATION OF HISBA IN THE CASE OF NASR ABU ZAYD 51

dispense with a consideration of legal conditions there and their effects.

H o w have legal transformations affected the Shari'al In what ways has

the construction of new legal conditions altered the significance of specific

Islamic concepts and practices in Egypt? T h e s e are the questions I begin

to explore in this chapter, through a contemporary, controversial, set of

court judgments about Islam and apostasy, concerning a former university

professor by the name of Nasr A b u Z a y d .

A s I noted in the introduction, the adoption of a modernizing project

does not produce cultural homogeneity and thus cannot be understood in

a teleological way. It does, however, involve the adoption of characteristic

concepts, categories, and spaces that create distinctive possibilities and

constraints for how discourse, argument, and practice can proceed. T h e

A b u Z a y d court judgments that I discuss here bring out with great clar-

ity some of the possibilities the modern project has created for Islamic

argumentation and practice in Egypt. In this chapter I will highlight some

of the modern concepts and spaces reflected by the court judgments, and

how the Islamic Shari'a has become configured through them. In the pro-

cess I will look at some of the specific historical changes that put those

modern concepts and spaces in place.

T h e principles invoked in the A b u Z a y d judgments are particularly im-

portant for understanding how the Islamic Shari'a has become configured

under Egypt's modernizing project. M a n y of their themes will be discussed

in subsequent chapters, and the judgments themselves will be invoked

time and again to illustrate important aspects of the spaces of modern

power that the Islamic Shari'a has come to inhabit in Egypt.

On the Concept of a Discursive Tradition

This chapter deals with civil law (i.e., French-based continental law) and

the Shari'a, their similarities and differences, and the ways the former sig-

nificantly transformed the latter in Egypt . However, attempts to concep-

tualize both civil law and the Shari'a have encountered much difficulty.

Legal theorist A l a n Watson notes that these difficulties arise with civil

law because it has a unity that transcends the particular social, political,

and economic conditions of the countries where it operates.1 T h e Shari'a

is difficult to conceptualize for much the same reasons. J. H. Merryman,

a comparative legal scholar, usefully proposes to understand civil law as a

legal tradition that

4 4 CHAPTER O N E

is not a set of rules of law about contracts, corporations, and crimes, although

such rules will almost always be in some sense a reflection of that tradition.

Rather, it is a set of deeply rooted, historically conditioned attitudes about the

nature of law, about the role of law in society, about the proper organization and

operation of a legal system, and about the way that law is or should be made,

applied, studied, perfected, and taught.2

This in some ways parallels Talal Asad's notion of discursive tradition as a

solution to difficulties encountered in describing Islam.3 Such an approach

requires that one begin with the distinctive vocabularies and conceptual

elaborations of relevant texts,4 with reference to historically changing

structures, to discern how they may connect "variously with the forma-

tions of moral selves, the manipulation of populations (or resistances to

it), and the production of appropriate knowledges."5 In this chapter I will

approach both the Shari'a and the civil law as discursive traditions. Such

an approach will allow me to describe Egyptian legal transformations in

terms of the reorganization of one tradition by the more powerful dis-

courses and practices of another.

T h e concept of a discursive tradition as used in this chapter and in this

b o o k is somewhat at odds with the view of an invented tradition still very

widely used in anthropological discussions of Islam and the Middle East.

T h a t view is rooted in the idea that the past is a reservoir of symbols that

can be variously interpreted and manipulated for present (usually politi-

cal) purposes.6 T h e emphasis is on symbols and their uses. T h e concept

of a discursive tradition, however, brings about a difference in emphasis,

one that is less on symbols and more on the arguments, practices, and

techniques in which symbols are rooted and from which they get their au-

thority and significance. It must be remembered that symbols acquire their

effectiveness through their insertion into arguments,7 and arguments, in

order to convince, justify, or even oblige response must satisfy certain con-

ditions. T h e y must, for example, address the proper themes, cite the right

authorities, and employ the correct argumentative f o r m s — a l l of which

have been historically constituted along with and in relation to the prac-

tices and institutions that together make up the tradition in question.

T h e concern, then, is not with symbolic manipulation but with aspects

of the argumentation used in the court case and their historical conditions.

B y this concern, however, it should not be thought that I think that all

concepts and practices rely on explicit argumentation. Rather, my focus is

on the discursive conditions of persuasive argument and some of the his-

45 CHAPTER ONE THE LEGALIZATION OF HISBA IN THE CASE OF NASR ABU ZAYD 51

torical transformations that put them in p lace—that is why I emphasize

the notion of a discursive tradition. Moreover, in emphasizing discursive

tradition, I do not assume that all arguments must be textual; they can be

verbal as well. A l l I assume is that they refer to what are taken to be from

the founding texts. With this in mind, let us now turn to the court case of

Abu Zayd, the arguments found in the court judgments, the themes they

address, and the authorities they cite, with an eye toward the ways these

have been historically constituted.

Hisba in the Case of Nasr Abu Zayd

Egypt's Court of Cassat ion—the highest civil and criminal court in the

country8—handed down a highly controversial decision in August of 1996.

The decision was about a Cairo university professor of Arabic and Islamic

studies whose name was Nasr A b u Zayd. The Court of Cassation's verdict

upheld a previous ruling of the Cairo Appeals Court issued the year be-

fore, which declared A b u Zayd an apostate from Islam and, as a result,

annulled his marriage to his wife.9 This was against the will of both A b u

Zayd and his wife.

Proof of A b u Zayd's apostasy was found in a set of his published writ-

ings, writings that he had previously submitted to a Cairo University re-

view committee for the purpose of a promotion. A n d it was with the review

committee that the entire controversy that led to this decision started. The

committee denied his promotion on the basis of what it claimed was his

inadequate scholarship. Quickly this denial became the subject of a bitter

campus debate between those who supported A b u Zayd and those who

opposed him, a debate that made international headlines and thus put

some pressure on the university to reverse its decision.

It was at this point that some of those opposed to A b u Zayd filed this

court case. They raised the case through the personal status law, which

is where the Islamic Shari'a is still in force. They used a provision in the

personal status codes to introduce a certain principle from the Islamic

Shari'a that was not explicitly stated in those codes. That principle is called

hisba.

Hisba is an individual and collective practice of moral criticism techni-

cally defined within the Shari'a as "the commanding of good when it is

manifestly neglected, and the forbidding of evil, when its practice is mani-

fest,"10 and it had been subject to increasing legal and religious elaboration

4 6 CHAPTER ONE

in Egypt even before this case. The professors and their lawyers argued

that on the basis of this concept they could file a lawsuit against A b u Zayd.

They argued that his writings were manifest proof of his apostasy from

Islam, and that as an apostate he could not be legally married to his Mus-

lim wife. O n this basis they petitioned the court to immediately annul his

marriage.

The plaintiffs were often asked why they cared at all about A b u Zayd's

marriage. They eventually replied that in fact they weren't really inter-

ested in his marriage. Rather, they were interested in the court's having to

make a legal determination of A b u Zayd's apostasy, which, if confirmed,

would settle the question of whether or not he deserved a promotion, or

even a position, in an Islamic and Arabic studies department. It was simply

because of the current structure of the Egyptian law, which arose out of a

number of relatively recent historical transformations that incorporated

the long-standing Shari'a into Egyptian personal status law, that they had

to raise the issue as a personal status case. It was the only way they could

get a legal determination of his apostasy.

The results of their attempt went far beyond anyone's expectations. Not

only did the courts declare A b u Zayd an apostate and annul his marriage,

they also set a stunning precedent by declaring that the filing of hisba

cases was the duty of every Egyptian Muslim citizen. The government

saw this declaration as alarming enough so as to quickly push through

legislation restricting the right to file hisba suits to the public prosecutor

(al-niyäba al-'amma) only.11 This move angered both Islamists and liber-

als—Islamists because it restricted what they saw as a fundamental right

of individuals, and liberals because it entailed official recognition of the

concept of hisba.

This chapter is directed toward two related tasks. The first is to offer

initial considerations on select themes and arguments found in the court

judgments and to broadly identify some of the historical changes that

made them possible. It thus provides a relevant historical background

to contemporary Egyptian legal practice. The second is to explore how

the court judgments have conceptualized hisba, and to tentatively specify

some of the significant changes the concept of hisba has undergone as a

result of its subsumption under a civil law context. My argument is that

hisba, though based in the Shari'a, has been fundamentally transformed

under Egyptian civil law in two ways: it has become attached to a new set

of concepts and categories, and its mode of enactment has changed. The

transformation of hisba is one illustration of some of the fundamental

THE LEGALIZATION OF HISBA IN THE CASE OF NASR ABU ZAYD 47 changes the Shari'a has undergone in Egypt as a result of the reception

of civil law. It also offers a glimpse of the new possibilities for action and

public criticism that might be arising from such transformations of the

Shari'a, possibilities that are not expected to arise from within a liberal

framework.

The Case of Abu Zayd: Arguments and Themes

As mentioned earlier, A b u Zayd, an associate professor of Islamic and

Arabic studies at Cairo University, had been the center of some attention

even before the suit was filed against him. The controversy arose when his

application for promotion to full professorship was rejected in 1992 on the

basis that his research did not comply with Islamic standards. Since then

many have condemned this rejection in the name of academic freedom,

while others have supported it, calling into question A b u Zayd's commit-

ments to Islam. The initial lawsuit filed against him at the Giza Court of

First Instance in 1993 was one development in this ongoing quarrel.

The lawyers who filed it argued that his writings contained clear state-

ments that were unanimously agreed upon by classical scholars of the

Hanafi school of Islam to require a judgment of apostasy.12 These included:

calling doubt upon the existence of angels, jinn (spirits), devils, the Final

Day, hellfire, the Throne of God; calling doubt upon the divinity of the

Qur'an by arguing that it contained a human element and was thus subject

to literary interpretive methods; and finally, questioning the eternal suf-

ficiency of the revelation by arguing that aspects of it should be changed

according to modern understandings. Even worse, the lawyers claimed,

he was teaching these views to his students. They concluded that A b u

Zayd should be judged an apostate. O n e of the consequences of apostasy

in Islam is immediate nullification of the marriage contract between the

apostate and his Muslim wife. Thus they argued that A b u Zayd should be

immediately separated from his wife.

The lawyers based their lawsuit on the concept of hisba. Hisba claims,

they argued, had been recognized in the 1931 Regulations of Shari'a Court

Organization in its articles 89 and n o . Those articles regulate when the

court accepts claims. The articles state that "cases are not accepted unless

there is an actual legal opponent," defined, in part, by the presence of the

plaintiff and the defendant before the court at the proper time. However,

they further state that "if [the matter] concerns the rights of G o d then it is

4 8 C H A P T E R ONE

required for the court to look into it [with or without the presence of the

parties]."1 3 Hisba was defined within Islam to be a matter of the rights of

G o d , of which divorce was one.14 Thus it was obligatory upon the courts to

accept and look into hisba cases.

Yet there was a question as to whether these regulations were still valid.

This was because the Shari'a courts had been absorbed into the jurisdic-

tion of the personal status division of the Egyptian national courts in 1955

under law 462. However, the lawyers argued that the Court of Cassation

recognized them in 1966, which validated hisba claims and the rights of

G o d and further emphasized another article (6) of law 462 that requires

judges to decide cases using the doctrine of the Hanafi school of Islam

in personal status issues for which there were no applicable statutes. A r -

ticle 6 paralleled an earlier provision (280) in the 1931 regulations of old

Shari'a courts.

T h e defense argued otherwise. T h e y noted that the articles of the 1955

law 462 not only absorbed the jurisdiction of the Shari'a courts. That law

further required that cases be filed according to the regulations for civil

procedure. Those regulations state that "a case is not accepted unless the

plaintiff has a direct interest and "legal attribute"1 5 that the court can judge

upon." 1 6 This principle of civil litigation is typically understood to refer to

the private interest of the plaintiffs. Since the plaintiffs had no "legal attri-

bute" or direct interest in filing the suit, the defendants argued, the court

should dismiss the case. T h e defense further claimed that the court had no

jurisdiction to judge upon the validity of a person's religious belief.

T h e Giza Court , in weighing the arguments, made a distinction between

procedural and substantive matters based on law 462. It stated,

the articles in law #462 in 1955 have established two principles . . . the first is a

separation between the substantive from the procedural matters that regulate

personal status issues, and the second is that in procedural matters the Civil and

Commercial rules of procedure are the general law to be applied.17

Since these rules of procedure required that the plaintiffs possess a di-

rect legal interest and "legal attribute" to file suit, and since the plaintiffs

did not have this, the G i z a Court dismissed the case.

T h e plaintiffs appealed to the personal status division of the Cairo

C o u r t of Appea ls , which accepted the case, judged A b u Z a y d an apos-

tate, and declared his separation f rom his wife. T h e A p p e a l s Court did

not reject the distinction between procedural and substantive matters that

49 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE CASE OF NASR ABU Z A Y D 51

the Court of First Instance made. It also agreed that whether or not the

plaintiffs had a direct interest in filing this case was a central question.

However, it argued that the determination of the propriety of the plain-

tiffs' interest could not be determined solely in procedural terms; it had

to be determined f rom within the substantive law as well. It therefore had

to be specified

in accordance with article 6 of law #462 of 1955, and article 280 [of 1931],. . .

which state that "judgments should be passed according to . . . the most pre-

ferred views of the doctrine of Abu Hanlfa, except in cases where there are

specific laws, whereby the court should rule according to them.".. . Since in this

case there is no set of regulations, neither in the bylaws or the legal provisions,

the Court is required to resort to the most preferred views of Abu Hanlfa's

doctrine; the judgment [of the Court of First Instance] has thus contravened the

law and has erred in the way it has applied it.18

The court went on to argue that

since the most preferred views of Abu Hanlfa state that hisba testimony [with-

out the filing of a suit] is acceptable in those matters that concern the rights of

God . . . it is therefore a sufficient condition for anyone to approach the judge

and provide testimony in order to seek the application of God's penalties, or

the removal of a standing violation, such as a divorced couple remaining to-

gether or an apostate staying with his Muslim wife.. . . The Court emphasizes

that what is meant by the "rights of God" . . . is related to what concerns the

public interest or the general affairs of the Islamic community (umma) . . . over

and above individual or special interests . . . as God Most High has said, "Let

you be a community that calls for goodness and that commands the good and

that prevents wrongdoing, for such (communities) are the successful ones (The

Qur'an, chapter A l Omran, v. 104)." Abandoning the good therefore harms

every Muslim, and the spread of detestable acts within society poses the most

severe harm to it; society therefore has a direct interest in filing a hisba s u i t . . .

[and thus, the plaintiffs] have an interest in filing this suit.19

Now the defendants had argued that judging upon the validity of a

person's belief or apostasy was beyond the G i z a Court's jurisdiction. T h e

only given provisions for apostasy judgments in the Egyptian law, they

argued, concerned official declarations of unbelief, which A b u Z a y d had

not made. A n investigation of belief or apostasy when no such official

50 CHAPTER ONE

declaration had been made, they further argued, was a violation of a per-

son's private life and f reedom of belief and was thus outside the jurisdic-

tion of any court.

T h e A p p e a l s Court rejected their claims in several ways. With respect

to the claim that investigating a person's belief was outside the Giza Court's

jurisdiction it asserted that

it has been stated in article 8 of Law 462 of the year 1955 that the Court of First

Instance is to look into all matters concerning the separation between wife and

husband. Hence, the suit to separate a man from his wife based on the apostasy

of one them is the responsibility of the Court of First Instance, and thus, the

issue of the occurrence of apostasy is an imperative matter that the said court

should . . . be able to pass sentence upon.20

With respect to the argument concerning the general jurisdiction of any

court to investigate belief, and the violation of private freedom, the Appeals

Court made a set of distinctions concerning both apostasy and belief:

The Court notes that there is a difference between apostasy, which is a material

action with its basic elements and conditions . . . and belief (i'tiqäd). Apostasy

is necessarily comprised of material acts that have an external being. Such acts

must make manifest, in a manner undeniable and without dissent, that one has

called God Most High a liar, and the Prophet, peace be upon him, a liar by

denying what he has brought to Islam Belief, however, differs clearly from

apostasy. For apostasy is a crime whose basic material elements are presented

before a judge to decide whether it exists or n o t . . . but belief concerns what is

in the interior of a human being's self, belonging to his domain of secrecy. It is

neither a matter of judicial probing, nor of investigation by people, but is to do

with the relationship between the human being and his Creator. Apostasy is a

breach of the Islamic order, at its highest degree and most valued foundations,

through manifest, material actions. In positive law, it comes close to a breach

of the order of the state or high treason. Apostasy is investigated by the judge

or the Mufti.11 However, the punishment for assaulting religion through [an act

of] apostasy does not contradict personal freedom. This is because freedom of

belief ('aqida) requires that one be sincere (mu'minan) in his words and acts,

and [so] one has a sound logic in abandoning belief. But a breach of Islam can

only be due to corruption in thought or the lure of material, sexual, or other

worldly purposes. To combat this category [of desire] is not considered combat

against freedom of belief, but rather the protection of belief from such vain,

corrupt passions.

THE L E G A L I Z A T I O N OF HISBA IN THE CASE OF N A S R ABU Z A Y D 51

Thus freedom of belief was not defined as f r e e d o m to believe what o n e

wants; it was not solely a matter of being able to choose one's own opinion

or views. Rather, f r e e d o m of belief also consisted in a protection f r o m

those actions and practices that would corrupt religious belief and ob-

struct the conditions needed for its proper maintenance and practice.

Belief therefore required investigation when obstructions to it were mani-

fest. For the A p p e a l s Court , A b u Zayd's published writings constituted

manifest evidence for his apostasy or belief.

T h e A p p e a l s Court judgment, after a review of A b u Zayd's published

writings, further concluded that

what [Abu Zayd] had written contravenes not only religion, but also the Con-

stitution of the Arab Republic of Egypt. Its article 2 states that Islam is the

religion of the S t a t e . . . . Thus, an attack on the [the foundation of Islam] is an

attack against the State which is founded upon it. He also contravenes article 9

of the constitution that states that the family is the basis of society, and its basis

is religion.22

In other words, A b u Z a y d had attacked the principles of the public order

itself. Thus the court pronounced his apostasy and declared his immediate

separation f rom his wife.

T h e defendants appealed the decision to the Court of Cassation. T h e y

claimed that the Court of A p p e a l s was mistaken in accepting hisba suits.

They also argued that A b u Z a y d was an Islamic scholar w h o was learned

in Islamic doctrines, and that his writings constituted ijtihäd. Ijtihäd is a

mode of reasoning employed in the consideration of situations that are

ambiguous with respect to the accumulated strictures of authoritative Is-

lamic texts, and typically only very learned scholars are allowed to engage

in it. A s such, A b u Zayd's writing was something that should be discussed,

and either confirmed or refuted. It was not an issue of apostasy or belief,

they argued, but an issue of scholarly interpretation.

The Court of Cassation rejected their arguments.

With respect to hisba, the court affirmed the view of the A p p e a l s Court .

It further stated that

Hisba, according to this Court and to the Islamic scholars (fuqahä '), is an a c t . . .

that involves the commanding of the good when it is manifestly neglected, and

the forbidding of the evil when its practice is manifest. . . . It may be enacted

through the filing of a claim or the provision of testimony with a judge, or the

request for assistance by the public prosecution. The hisba suit pertains to the

5 2 CHAPTER ONE

right of God, or that in which the right of God is prevailing . . . Islamic scholars

concur that hisba does not require permission or authorization from the ruling

authority [in order to be enacted] . . . it is an individual duty (fard 'ayn) upon

every Muslim who is capable of enacting it.23

A s for the issue of ijtihäd and interpretation, the court stated that

the entire text [of the Qur'an] itself is not meant to be subjected to ijtihäd.

Ijtihäd is used only in matters that have no verses to support them or are not

straight-forward and clear. The texts are the Qur'an and the Sünna [the prac-

tices and sayings of the Prophet of Islam], and the Sünna should be considered

the second source of legislation. But whenever the text is clear and definite, we

should not depart from it under the guise of interpretation.... [Thus] his claim

of reinterpretation is refuted, because interpretation does not cause a Muslim

to depart from Shari'a. Interpretation has precepts and criteria provided by

Islamic scholars. It does not depart from the path of God, and what God has

explicitly forbidden.24

Thus the Court of Cassation aff irmed the Cairo A p p e a l s Court judgment,

declared A b u Z a y d an apostate, and thereby legally separated him from

his wife.

A number of themes emerge from the court arguments. There are three

major ones, however, that I will subsequently focus on. T h e first is the kind

and the propriety of the interest of the party that filed the hisba claim. T h e

second is the nature of belief and the extent to which it is a public or a pri-

vate matter.25 A n d the third is the status of A b u Zayd's published writings

as the primary form of evidence for his belief or apostasy.

But my purpose in this section was not simply to outline the major

themes addressed in the judgments. It was also to give a sense of the way

that formal civil law arguments and Islamic modes of argumentation are

deeply and finely enmeshed in them. M o r e specifically, it was to call atten-

tion to the fact that the judgments bring together, for their coherence, a

set of heterogeneous authorities: the Qur 'an and the Sünna; the rights of

G o d , the public interest, the public order, the most preferred views of the

Hanafi school of Islam, the Egypt ian constitution, civil law procedures

for case filings and the acceptability of cases; regulations concerning the

Shari'a courts of old, the precepts and criteria of Islamic scholars on inter-

pretation, and the duties of hisba upon individual Muslim citizens.

Such confluences are worthy of attention because law, as it is charac-

53 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF NASR A B U Z A Y D 51

teristically used in modern and modernizing states like Egypt, is one im-

portant method of fashioning modes of life and the conditions for their

subsistence. Legal categories more and more provide the grounds through

which claims are rendered and on which political contestations are en-

acted.26 Thus "in the modern state, law is an element in political strate-

gies—especially for destroying old options and creating new ones."27 This

takes on particular significance in light of the fact that the heterogeneous

authorities these judgments articulate have been rooted in, and have taken

their significance from, historically quite different modes of life, each with

its own set of options and limits. Thus the judgments bring together as-

pects of these different modes in distinctive ways that create new options

and limit others.

A n y adequate understanding of the distinctive coherence of these

judgments, and the options and limits they entail, therefore requires some

knowledge of the modes of life these authorities were rooted in and the

legal transformations that made possible their confluence here. That is the

focus of the next two sections. A f t e r them, we will have enough context to

return to the court arguments, which we will then see in a different light.

Some Consequences of Legal Transformations in the Shari'a Only recently, in 1955, did Egypt acquire a unified national legal system.

That was when President Gamal A b d el-Nasser decided to abolish the

long-standing Shari'a courts and have their jurisdiction absorbed by the

more recent national court system, which had been created alongside them

in 1883. O n e could understand this abolition and jurisdictional absorption

as the culmination of a series of immensely detailed legal transformations

organized by the reception of civil law tradition in Egypt. I will only briefly

summarize aspects of those changes that are relevant to our discussion;

further detail is provided in notes.

The discourses and practices of civil law tradition acquired increasing

power with the growth of Western financial privilege in Egypt since the

beginning of the nineteenth century. Although inaugurated early on by

Pasha Muhammad Ali , the reception of civil law tradition did not become

fully entrenched until the establishment of the Mixed Courts of Egypt in

1876. Staffed with European judges from different countries, the Mixed

Courts formed a unified European legal entity that presided over any

case in which mixed economic interests were involved, that is, between

5 4 CHAPTER ONE

Europeans of different countries in Egypt, or between Europeans and

Egyptians. Their jurisdiction quickly expanded to encompass Egypt's en-

tire commercial life, including cases between Egyptians, because, increas-

ingly, the money involved even in "indigenous" disputes was European.

Limiting the rapid growth of the Mixed Courts was one reason the Egyp-

tian government established what were called "the National Courts." The

National Courts, though they gradually replaced the jurisdiction of the

Mixed Courts and established Egypt's present court system, were never-

theless modeled almost entirely upon them, both in organizational struc-

ture and in the form and content of law. The establishment of the National

Courts also involved a restructuring of the Shari'a courts along similar

lines.28 A m o n g the consequences of that restructuring was the limitation

of the jurisdiction of the Shari'a courts to matters of "personal status."

Such a move actually involved a reconstitution of the Shari'a courts and

their constitutive practices. In describing the scope and significance of this

change what I first try to do is gesture toward the outlines of a distinctive

historical space of concepts and practices that characterized the Shari'a.

Then I outline a set of formative precedents that came with the reception

of civil law, one that introduced new concepts and practices and changed

the ways that old ones could hang together.

A s I had just mentioned, limiting the Shari'a courts' jurisdiction to

matters of personal status involved a fundamental transformation of their

constitutive practices. A n example of one such practice was called taz-

kiyya, a mode of moral inquiry and criticism used to ascertain the veracity

of witnesses' testimony.29 Every time witnesses were brought forth to testify

in a case, the presiding judge would appoint members of his trusted circle

to investigate their 'adäla (integrity, or moral uprightness). The determi-

nation of witnesses' proper 'adäla had variously to do with their upholding

of religious duties, their profession and proficiency in it, their family life,

their past activities, overall disposition, and the general opinion people

had of them.30 Thus 'adäla was one inclusive moral term that summed up

a set of virtues to be found and practiced in multiple aspects of life.31 Wit-

nesses who possessed 'adäla had their testimonies accepted; those who did

not had their testimonies rejected, or were not allowed to testify.

Tazkiyya was but one of many well-developed techniques of moral in-

quiry and criticism that were characteristic of the Shari'a and that were

meant to secure and maintain various virtues found in multiple aspects of

life, and that were, in fact, central to the Shari'a''s very foundation.32 The

concept of 'adäla, for example, was crucial for a range of diverse practices

55 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF NASR A B U Z A Y D 51

that included court witnessing, the proper transmission and authoritative

interpretation of religious and legal texts including central ones like the

Qur'an and Hadith (the corpus of the Prophet's sayings and doings that

form one central source of Shari'a jurisprudence); the development of his-

torical biographical sciences; and methods of instruction.33 In this sense,

'adäla provided one foundation for the formation of systematic knowl-

edges about life and for living.

The reception of civil law tradition in Egypt brought with it a number

of effects that altogether had the consequence of reconstituting and nar-

rowing the domains where the kind of moral inquiry characteristic of the

Shari'a could take place, and of reducing the importance of the particular

virtues it was meant to secure.

The first effect of this reception was the introduction of a specific set of

legal categories. The European codes, in particular, divided life into public

and private law. The essence of the Shari'a was defined as comprised of

family matters like inheritance and marriage, and thus properly part of

private law. Such divisions, however, had no direct correspondence to the

Shari'a, which in classical treatises had been divided into matters of wor-

ship ('ibadät), matters of punishment ('uqubät), and matters of relations

between people (mu'amalät), which included matters of divorce and mar-

riage, proper behavior to relatives, as well as commercial dealings.34

It was not just simply that the Shari'a and civil law tradition had differ-

ent divisions. Rather, it was that those divisions were of entirely different

kinds. The divisions of civil law are conceived, in part, as boundaries safe-

guarding the pursuit of individual private interests against the interven-

tion of public power.35 Thus the multiple aspects of life that were initially

subject to various kinds of moral inquiry in the Shari'a became subsumed

under categories that were conceived in relation to the pursuit of multiple

interests and to the laws and procedures that would guarantee those pur-

suits. A n indication of this change of emphasis can be found in the regula-

tions for case filing procedures of the national courts, referenced in the

previous section, which state that "a case is not accepted unless the plain-

tiff has a direct interest and 'legal attribute'." That is far different from the

laws regulating case hearings in the Shari'a courts of old, also referred to

previously, which require an "actual legal opponent" defined, in part, by

the presence of the plaintiff and the defendant in the court. This change

of emphasis can also be discerned in one of the central themes of the A b u

Zayd case. Remember that one major theme in the case was the kind and

the propriety of the interest involved. The acceptability of the hisba claim

5 6 CHAPTER O N E

depended crucially on the way the interest of the plaintiffs was defined in

relation to the defendants. A n d the categories in which their interest was

f ramed were those of public and private.

O f the divisions of civil law tradition one legal scholar writes:

The manner in which the law is divided and classified will affect such activities

as characterization (how shall a problem be characterized for legal treatment),

teaching (what courses will make up the law school curriculum), scholarship

(what are the typical fields of specialization amongst legal scholars), orga-

nization of law libraries (how shall books be classified), codification (what

constitutes an appropriate area of the law for codification), legal writing and

publishing (what will be the area of concern of a book or legal periodical), and

ordinary communication amongst lawyers.36

This highlights another important effect of the reception of civil law in

Egypt . It was not just a matter of creating new courts and codes. M o r e

than that, it involved the creation of an entire network of new legal profes-

sions, professional and educational organizations, methods of instruction,

and forms of scholarship.37

Part of the problem for those w h o established this new network was to

find ways to imbed already existing Islamic institutions within it. This em-

bedding was facilitated, in part, through the adoption of new evidentiary

procedures. Notably, the new methods of legal proof and authorization

did not at all lie in any moral inquiry such as tazkiyya\ neither for that

matter did they rely on the testimony of present witnesses. Rather, proof

was to be almost entirely documentary. T h e significance of this change

cannot be overemphasized. Consider how l u d g e Brinton, w h o sat on the

Mixed Courts, characterizes its import with respect to the awqäf.,38 which

are inviolable land trusts that took up a large part of Egyptian land:

Where the rigid system of Koranic law proved inadequate to meet the demands

of complex civilization, the problem was met by two devices—one by the trans-

fer from the religious to the civil courts of various important fields of litigation,

and the other by forcing a change in the substantive laws under the cover of the

alteration of laws of procedure, any change in substance being contrary to the

established teachings of Koranic law, and beyond the power of lawmakers in

the country.. . .

A good illustration occurs in the case of litigation arising over Wakfs, or

religious trusts. Under Muslim law proof is primarily oral. It soon became obvi-

57 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF N A S R A B U Z A Y D 51

ous, however, that to allow the establishment of a system of land trusts to be at

the mercy of such an uncertain method of proof of title would be little short of

judicial anarchy. But law of proof could not be modified by statute. The diffi-

culty had to be cured by the device of inserting in an act of regulating procedure

before the Religious Courts a proviso which effectively excluded actions based

on Wakfs whose existence was not established by documentary evidence, and

which had not been executed before a notary. The act also affected proof of

writs and some other dispositions of property.39

Written documentation was the primary form of evidence within civil law

tradition; however, within the Shari'a, written documentation was con-

sidered a much less trustworthy f o r m of legal proof. O n e reason for this

was that techniques of moral inquiry such as tazkiyya could not be easily

practiced upon written documents to ascertain their veracity.40 T h e intro-

duction of documentary proof through civil law brought with it different

standards and conditions of proper evidence and thus new institutions

and functionaries to fulfill those conditions. T o put the awqäf to these

new standards and conditions was to imbed them into the institutions of

civil law. This, in turn, was to render superfluous the moral conditions of

proper evidence specified by the Shari'a. In other words, and this is the

point I want to emphasize here, these new procedures of proof contrib-

uted to the dissolution of the practices of moral inquiry, such as tazkiyya,

that were characteristic of the Shari'a, as well of the importance of virtues,

such as 'adala, that formed a foundation of its authorized knowledges.

Contemporary Egypt ian procedures of evidence are directly inherited

from the Mixed Courts. Consider the fol lowing description of present-day

procedures for personal status cases:

The administrative character of (present day Egyptian) litigation derives to no

small degree from the procedures which make the written record primary. This

is a direct inheritance from the French system.... Every case has a file. The law-

yers are responsible for submitting all documents relevant to their cases for the

file. The judge reads the files at home before and after the sessions... . There

are certain rules about the rights of each party to file statements and rebuttals

and to examine documents supplied by the other party. Decisions are made by

judges primarily on the basis of written record. . . . In most civil cases . . . the

production of witnesses would seem perfunctory—procedural—rather than

central to trying a case. Witness sessions, particularly in personal matters, are

usually separate, private sessions after the regular court hearing41

58 CHAPTER ONE

In this passage, there is no emphasis on matters of virtue. The emphasis,

rather, is on the rules and rights of litigants to submit documents and ex-

amine them for the purpose of rebuttal. Thus even in matters of personal

status, the very domain to which the Shari'a was finally restricted, ques-

tions of 'adäla and its associated moral investigative practices, which used

to be so crucial, were now almost completely irrelevant.

The emphasis on written evidence also has important consequences for

the courts' understanding of religious belief. For the courts, belief was un-

derstood to consist in statements that either affirmed or denied accepted

doctrine. The emphasis on doctrine, however, does not fully correspond

to older Islamic notions of belief. Older Shari'a lists defining apostasy in-

clude more than just statements that deny doctrine. One such list includes

an instance where one Muslim advises another with over-long nails to cut

them because it was the practice (sunna) of the Prophet to cut his nails,

whereupon the other responds that he would not cut his nails whether it

was the sunna or not.42 Some considered this refusal an act of apostasy.

Clearly, cutting one's nails is not an essential element of Muslim doctrine.

Neither is the entire sunna necessarily binding upon Muslims. What this

instance implies is that the inclination to follow the sunna, even if a partic-

ular practice is not incumbent upon believers, is an important indication of

belief or the lack of it. What these older Shari'a notions articulate is a dis-

positional element of belief that is just as important as doctrine. Note that

the instance described in this particular list is also an example of naslha

(advice-giving), a Shari'a practice of moral inquiry and criticism that, like

hisha, is directed toward inducing precisely those dispositions considered

integral to proper Muslim belief. I will elaborate on this point in the next

section. But for now, what bears noting is that this dispositional element

of belief has been dropped out by the courts, due to their emphasis on

documentary evidence.43 The courts claim to look only at the published

writings of A b u Zayd and see them solely as declarations, without regard

to the dispositions with which they might be made. Religious belief is cast

as primarily a matter of doctrinal statements.

A s this has been a long and detailed section, it would be worth sum-

marizing its main points before going on.

O n e of the things that characterized Islamic tradition was a well-

developed set of techniques of moral inquiry and criticism that were used

to uphold moral virtues considered necessary for the living of Muslim life,

the maintenance of Islamic practices. Those virtues provided a basis of

systematic knowledges about life and for living.

THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF N A S R ABU Z A Y D 51

The reception of civil law in Egypt, which was inaugurated with Mu-

hammad Ali , entrenched with the Mixed Courts and their expansive ju-

risdiction, and finalized with the National Courts, had reconstituted the

Shari'a in three major, interrelated ways. First, codified law brought with

it legal categories that divided up life in ways that did not correspond to

Shari'a. This limited its domain to a newly constituted category of private

law, defined its essence in terms of personal status, and thus reduced the

range and effectiveness of its modes of investigation and the virtues they

were meant to secure. The second, related, change is that the new divisions

of life came to be seen as not in terms of moral practices, but of multiple in-

dividual interests that limit the intrusion of state power. The third is that the

reception of civil law required the embedding of already existing Islamic

institutions into a network of new legal organizations and professions. That

embedding was facilitated in part by a wide-ranging change in evidentiary

procedures. These new procedures of evidence, in turn, helped render

the practices of moral inquiry and the virtues foundational to the Shari'a

largely superfluous. Some of the effects of these changes can be discerned

in the themes of the A b u Zayd case; namely, the centrality of the issue of

interest, the importance of public/private distinctions with respect to inter-

est and belief, the primacy of written evidence for determining A b u Zayd's

apostasy, and the restriction of belief to statements concerning doctrine.

However, it is important to note that throughout all these changes, the

Shari'a was never entirely dispensed with. It always remained an authori-

tative ground upon which new legal concepts were justified and legal re-

forms were enacted. Thus, for example, one of the principle motivations

of the major revision of Egypt's Civil Code in the 1930s was to make its

foundation more Islamic, even though those revisions took much of their

form and many of their concepts from French codes.44 Another example

of this is the 1980 constitutional amendment making the Shari'a the prin-

ciple source of legislation in Egypt. That is why some lawyers today argue

that the Egyptian legal system is entirely Islamic, or within the spirit of

Islamic tradition. Others, however, think otherwise.45 Nevertheless, there

has been a consistent concern with the extent to which the Egyptian law is

properly Islamic, and that concern has played an important part in various

political claims and strategies. These strategies have also allowed the prac-

tices of moral criticism whose domains had been restricted in the ways just

described to expand into different spaces of life, albeit, in heavily changed

form. This is what is happening with hisba, a concept I will outline and

discuss in the following sections.

69 CHAPTER ONE

Hisba within the Shari'a A substantial portion of the last section was devoted to describing the

divisions of civil law tradition and their significance. I noted that the im-

portant distinctions found in the Shari'a were entirely unlike those of civil

law, and that they took their scope and significance f rom the practices

of moral criticism that were foundational to the Shari'a. In this section I

detail some of the distinctions made in the Shari'a through a discussion of

hisba, and more fully specify their differences from those of civil law. This

will provide the background needed to trace some of the ways hisba has

been significantly transformed in the A b u Z a y d judgments.

T h e practice of hisba and the conceptual elaborations and distinctions

made concerning it must be understood within the context of the modes

of moral inquiry and the background of the transformations outlined in

the last section. It is telling that medieval treatises of Shari'a and court

practice treat hisba as a form of witnessing, and as such, subject to all

the conditions of its propriety, including 'adäla. O n e such manual, in de-

scribing hisba, quotes a Hadith that says, " T h e best of witnesses is he w h o

witnesses without being required to do so."46 N o t only was it a form of

moral inquiry, but also it was itself subject to such moral inquiry, and this

indicates that these practices were enmeshed in ways that they form pre-

conditions or requisites for each other's proper performance.

Hisba was initially a practice intended for "maintaining the honor of

the marketplace" (musharrafat al-süq) and was concerned with matters of

fraud and deceit and with the merchants' usage of proper measures and

balances. However, its application later expanded to encompass huqüq

Allah (the rights of G o d ) , of which the honor of the marketplace was but

one.

Classical manuals of Islamic law and court practice also include the

following among the rights of G o d : prevention of adultery, drinking (alco-

hol), theft; paying of alms tax, sadaqa (charity),47 divorce, manumission of

slaves, providing for the poor, and for Muslims in general.48 A more recent

discussion defines the notion of "the g o o d " within hisba in relation to the

rights of G o d , and thus states,

And amongst "the good" is belief in God, his angels, his books, his prophets,

the Final Day, and Fate with its good and its bad; the five prayers at their proper

times, the prescribed alms, sadaqa, the prescribed fasting, the pilgrimage to the

70 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE CASE OF N A S R ABU Z A Y D 51

Sacred House of God, belief in the Hadith, the fulfillment of contracts and the

provision of securities for its parties, respect for parents, merciful provisions

for the poor, and cooperation (amongst Muslims) in the promotion of respect

and fear [of God].49

However, the rights of G o d were not seen as qualities that inhered within

G o d himself. Rather, they existed only in relation to another set of rights:

those of his servants, or worshipers (huqüqal- 'ibäd) .50 T h e rights of his ser-

vants included: mercy, forgiveness, peace, guidance, and success." Thus ,

for example, a chapter from the religious discussion just quoted states that

hisba is one of the obligatory methods of establishing a Muslim commu-

nity (umma) on the earth, and a necessary aspect of participating within

Islam, and that so doing will bring the success and victory of the Muslim

community as well as the forgiveness of sins.52 It is also for this reason that

hisba is considered to be obligatory in two ways: upon individual Muslims

if they encounter an evil (fard 'ayn), and upon a group within the Muslim

umma specifically entrusted to perform this ( fard Icifäya).

Here we may draw an important distinction between the rights derived

from the relation between G o d and his servants and those found within

civil law tradition. T h e rights of G o d and his servants do not fit into the

rubric of objective law and subjective right,53 and the legal categories of

public and private that come with it. In fact, the rights of G o d and his ser-

vants are not meant to demarcate spheres of jurisdiction for a legal system

whose function is to uphold the proper conditions for the pursuit of multi-

ple, individual interests. They would be more properly understood as hav-

ing to do with the morally investigative practices of the Shari'a discussed

earlier, with the maintenance of proper conditions for the upholding of

correct virtues and proper belief necessary to the guidance and success

of individual Muslims as well as the Muslim community as a whole. Thus

neglecting the practice of hisba, of maintaining the rights of G o d , is con-

sidered to lead inevitably to the moral corruption and final destruction of

the Muslim community (umma) that neglects it.54

The difference I try to point to here can be more boldly outlined if we

consider a conceptual distinction made with respect to hisba that initially

seems to parallel familiar civil law notions of private right, but which upon

further consideration does not. This distinction is between "the manifest"

(al-zähir) as opposed to "the concealment of G o d " (satr Allah), the viola-

tion of which is defined as the sin of spying (tajassus).

Legal and religious texts have regarded hisba as only one among many

6 2 CHAPTER TWO

forms of commanding the good and forbidding the evil. However, what

distinguishes it f rom other such forms of interdiction is the concept of "the

manifest" (al-zähir):

[The definition of hisba as] the commanding of the good if it is manifestly ne-

glected and the forbidding of the evil if its practice is manifest, separates it

from the commanding of the good and the forbidding of the evil that does not

relate to manifest evils. So what is concealed or needs witnesses, evidence and

contestations enters into the jurisdiction of the judge and not the muhtasib [the

one who applies hisba].55

T h e "mani fest" (al-zähir) has also been very specifically defined. In the

first place:

The manifest is a description linked to the evil itself, and not its perpetrator,

which indicates that the condition of "manifest" is fulfilled if the evil is manifest

and its perpetrator is not manifest.56

Further criteria is given for the manifest:

The criterion for an evil to be manifest in a way requisite to the enactment of

hisba . . . is that the evil exposes itself without spying (tajassus) from the side of

the muhtasib [the one who applies hisba] in order to reveal i t . . . [thus] if the

evil is concealed in itself, then it is not for the muhtasib to spy upon it or destroy

its concealment.. . . And with respect to this, we find an example given by the

Imam Ghazäli in "Illuminations" where he says, "If a person was seen with a

(wine) bottle under his sleeve, or under his gown, it is not permitted for the

muhtasib to expose him, as there has not manifested any specific sign. Because

the wrongdoing of this person is not proven simply because he has wine, as he

might in this case need vinegar or some other sort of thing, so it is not permis-

sible that he inquire into what he had hidden."57

N o w "the manifest" has been further defined in relation to various de-

grees of the concealment of G o d (satr Allah), which include: ( i ) W h e r e

the evil is hidden and the muhtasib has no knowledge of it. T h e n it is not

allowed for him to investigate. (2) W h e r e the evil is hidden, and though

the muhtasib cannot see it, he has some suspicion. That suspicion in itself

is not enough reason for him to search to either confirm or allay that sus-

picion. (3) W h e r e the evil is hidden and unseen to the muhtasib, but he

63 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE CASE OF NASR A B U Z A Y D 51

has knowledge of it, but has not confirmed it. T h e n that knowledge is not

enough to immediately expose it, although here, some investigation is pos-

sible. (4) W h e n the evil is hidden and unseen to the muhtasib, but he has

knowledge of it and has some confirmation of it. If he has such confirma-

tion then he may legitimately expose it. (5) W h e n the evil is exposed by

circumstantial evidence, although the evil itself is not obvious. Then the

muhtasib can expose it if it is related to the violation of a person's sanc-

tity. (6) W h e n the evil is obvious and evident. T h e n it is the duty for the

muhtasib to apply hisba.58

These criteria sound very much like the familiar ones applied for search

and seizure in the United States, regulations that are rooted in issues of

private rights and state intervention. However, the issue becomes less ob-

vious when we look at the way spying (tajassus) is understood and the

items with which it is categorized in the Shari'a. Consider the following,

from the same text quoted above:

As to the spying of individuals upon one another, it is forbidden legally. And it

is punishable by isolation or exile. God Most High said in his Honored Book,

"And do not spy," and it has been narrated that the Messenger of God (peace

and blessings of God upon him) said, "Do not envy (or covet), do not hold each

other on contempt, do not spy, do not probe, do not defame each other and

be, as servants to God, brothers." And it is also related by Mu'awiyya that he

heard the Prophet of God (peace and blessings of God upon him) say, "Surely

if you follow the shameful things of people, then you corrupt them, or work to

corrupt them."59

Thus spying is of a piece with envy and holding people in contempt, with

gossip, defamation, and the pursuit of scandal. It is seen as something that

is morally corrupting, not just among those w h o practice it, but to those on

whom it is practiced as well. W h a t is not evident here is a concept of pri-

vate right, but rather a limit against something that might resonate more

with our understandings of office (or academic department) intrigue and

backbiting, tabloid journalism, contemporary T V talk shows, and the live

police shows that are still so popular at this time. These would be consid-

ered ethically questionable behaviors, and were distinguished from the

practices of moral inquiry and criticism that hisba was a part of. However,

they elide the public/private distinctions of civil law and are not easily

fitted into them. T h e concept of satr Allah also does not fit into notions

of privacy developed within G e r m a n and French legal traditions. Thus it

6 4 CHAPTER TWO

does not correspond to the German notion of the right of "personality" as

combined with artistic rights. Neither is it the same as the French concept

of the right to control one's image, since satr Allah is precisely concerned

with what is manifest:60

This difference between the rights of G o d and those of his servants,

and objective law and subjective right, may be further clarified when it is

understood that hisba is intended to do more than simply forbid the wrong

and promote what is right. Hisba is not just a set of limits and allowances,

like the statutes of civil law, within which people pursue their interests.

Rather, it is a practice that specifies the modes of its correct enactment

in terms of proper dispositions and passions. Thus, depending on the cir-

cumstances, it ranges from gentle persuasion and friendly advice given in

a discreet manner to the use of harsh (or angry) and threatening words, to

physical intervention and even the use of force. More than that, hisba is a

practice aimed at producing the right fears and desires, such as the fear of

God's punishments, and the desire for His rewards.61 In other words, hisba

is a disciplined practice of moral criticism intended to produce proper

Muslim selves, possessed of the correct desires and passions.

The Legalization of Hisba We now have enough background to discuss some of the changes hisba has

undergone in the court judgments. It is worth, however, briefly summariz-

ing the points I have so far argued, to better connect them to the points I

will subsequently make.

In the discussion of the themes found in the court case, I noted that

the judgments articulated in a distinctive way, authorities that have been

rooted in historically distinct modes of life. Understanding the distinctive

coherence of the judgments therefore required some background con-

cerning these modes of life and the significant transformations that made

their confluence possible. That was the focus of the next two sections. The

main argument in them was that the Shari'a was characterized by inter-

connected techniques of moral inquiry and criticism that aimed to secure

virtues fundamental to it. Hisba, intended to maintain conditions (i.e., the

rights of God) necessary for the success of the Muslim community, is one

such practice of disciplined moral criticism. Under the influence of civil

law tradition, the Shari'a was reorganized and subsumed under categories,

such as public and private, that were conceived as boundaries guarantee-

ing the proper pursuit of interests. The broad contrast here, then, is be-

65 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF NASR A B U Z A Y D

tween a set of mutually supporting disciplinary practices aimed at securing

and maintaining a variety of moral virtues and a set of boundaries aimed

at protecting and guaranteeing the pursuit of multiple interests.

In this section I tentatively suggest that the concept of hisba described

in the court judgments has been significantly transformed from its Shari'a

understandings in two related ways. First, it has become attached to a dif-

ferent set of categories. A n d second, the aim and manner of its proper

enactment has been redefined. These changes will become clear if we take

a second look at some of the passages f rom the court judgments that were

quoted in a previous section of the chapter.

Consider the following passage, f rom the A p p e a l s Court judgment:

The Court emphasizes that what is meant by the "rights of God" . . . is related

to what concerns the public interest or the general affairs of the Islamic com-

munity (umma) . . . over and above individual or special interests . . . as God

Most High has said, "Let you be a community that calls for goodness and that

commands the good and that prevents wrongdoing, for such (communities) are

the successful ones (The Qur'an, chapter A l Omran, v. 104)." Abandoning the

good therefore harms every Muslim, and the spread of detestable acts within

society poses the most severe harm to it; society therefore has a direct interest

in filing a hisba suit . . . [and thus, the plaintiffs] have an interest in filing this suit.

(Cairo Court of Appeals)

Here the rights of G o d have been redefined in terms of the notions of pub-

lic order and public interest. B y equating the rights of G o d with the pub-

lic order and the public interest, and the public interest with the private

interest of every Egyptian Muslim citizen, the A p p e a l s Court was able to

justify its acceptance of the hisba claim against A b u Z a y d as consonant

with the regulations of civil procedure, which require that plaintiffs have

a direct interest to file legal claims. T h e distinction between public and

private and the concept of interest have thus become the principles that

regulate the proper use of hisba.

However, it is important to note that the collection of items that comes

under the category of the rights of G o d fall on both sides of the public/

private divide. Thus, for example, d i v o r c e — o n e of the rights of G o d , and

typically a matter of personal status in Egyptian civil law, has now become

a matter of public power and interest. That is, a third private party can now

intrude upon what is typically considered to be a private matter between

two individuals on the basis that it affects the public order and thus consti-

tutes a public interest.

66 CHAPTER TWO

H e r e it may be noted that I have not mentioned the Shari'a concept of

maslaha, typically translated as "interest," in my discussion of hisba. O n e

reason for this is that in classical Shari'a elaborations of hisba the notion

of maslaha is not much referenced, and neither is it considered central for

the practice of hisba. Even if it were, however, this would not mean that

we should think of it in terms of the notion of interest expounded by the

court. A s A l b e r t Hirschman has shown, the concept of interest has un-

dergone a series of complicated transformations in the history of Western

Europe, ones that have been connected both to the rise of capitalism and

centralized state power.62 Thus even if maslaha were a central concept in

the classical Shari'a explications of hisba, it would not necessarily have

the same meaning and thrust as the notion of interest, as it has been ex-

pounded by the courts in relation to hisba.

O n another note, the subsumption of the rights of G o d under the

public/private distinction seems to have given religious belief a public

character that it had not had before under Egyptian civil law. Whi le this no

doubt gives the state extended powers to transgress various sorts of public/

private boundaries, it also potentially extends the responsibilities to which

the state can be held accountable. For example, sadaqa, or charity, be-

comes a state responsibility. A l s o , maintaining freedom of belief, defined

by the court judgments as protecting belief from corrupting influences, be-

comes a state responsibility. In this regard one could envision filing a hisba

suit against the state itself for its failure to protect belief f rom corrupting

influences or for acting in ways that might corrupt it. In other words, it is

possible that hisba could be used as a form of public criticism.

T h e second change, related to the first, is in the manner and the pur-

pose of hisba's proper enactment. Consider the following court passages,

which were also quoted in a previous section of the chapter:

Since the most preferred views of Abu Hanlfa state that hisba testimony [with-

out the filing of a suit] is acceptable in those matters that concern the rights of

God . . . it is therefore a sufficient condition for anyone to approach the judge

and provide testimony in order to seek the application of God's penalties, or the

removal of a standing violation, such as a divorced couple remaining together or

an apostate staying with his Muslim wife. (Cairo Court of Appeals)

and:

Hisba, according to this Court and to the Islamic scholars (fuqahä '), is an act . . .

that involves the commanding of the good when it is manifestly neglected, and

67 CHAPTER ONE THE L E G A L I Z A T I O N OF HISBA IN THE C A S E OF N A S R A B U Z A Y D

the forbidding of the evil when its practice is manifest. . . . It may be enacted

through the filing of a claim or the provision of testimony with a judge, or the

request for assistance by the public prosecution. The hisba suit pertains to the

right of God, or that in which the right of God is prevailing . . . Islamic scholars

concur that hisba does not require permission or authorization from the ruling

authority [in order to be enacted] . . . it is an individual duty (fard 'ayn) upon

every Muslim who is capable of enacting it. (Cairo Court of Cassation)

These passages summarily state the reason why hisba should be enacted

and the way it should be enacted. Note here that all the disciplinary gra-

dations of hisba, which were aimed at conducing proper passions and dis-

positions as specified within the Shari'a, are not mentioned in the court

judgments. T h e point of hisba, according to the judgments, is not to pro-

duce the proper virtues but to remove violations and to impose the proper

penalt ies—hisba is primarily a way of setting limits.

Moreover, it has become a matter not of disciplinary procedure but of

court procedure. According to the passages, the primary way for a Muslim

to enact hisba is to file a legal claim or to be a witness in legal proceed-

ings.63 Thus hisba is subject to the regulations of civil procedure, which

in turn are governed by concepts of interest, and of public and private.

Hence, hisba has been transformed with respect to its goals as well as the

principles and procedures that govern its proper enactment.

Conclusion

This chapter began with two questions: h o w have legal transformations

affected the Shari'a, and in what ways have new legal conditions altered

the significance of specific Islamic concepts and practices in E g y p t ? I ex-

plored these questions with reference to the court case of Nasr A b u Z a y d

and the concept of hisba that was central to it. A consideration of the

major themes found in the A b u Z a y d court judgments led to a discussion

of how legal transformations had significantly reconstituted the Shari'a in

Egypt. It was against the background of these legal changes that the con-

cept and practice of hisba was discussed. Hisba, conceptualized as a disci-

plinary practice within the Shari'a, and part of a broader set of techniques

of moral criticism used to secure foundational virtues in the Shari'a, has

become significantly transformed in the A b u Z a y d court judgments. It

has become linked to concepts and c a t e g o r i e s — n a m e l y , interest and the

public/private dist inct ion—that did not obtain in the Shari'a. A n d it has

68 CHAPTER TWO

become part of a different procedure, one that disregards the significance

of its disciplinary gradations and concerns. These changes together consti-

tute part of what I call the legalization of hisba.

I also noted that hisba, in its legalized form, opened up possibilities for

certain forms of public criticism on the part of private citizens. A realiza-

tion of these possibilities may have been one of the factors that prompted

the Egyptian parliament to restrict the use of hisba to public officials only,

after the publication of the Appeals Court judgment.64 This provision

enabled a lower court to pronounce a stay of execution on the Court of

Cassation's final verdict.65 Nevertheless, the Egyptian state is now bound

to the responsibilities of maintaining the rights of G o d and acting in ways

that conform to them. How these possibilities and responsibilities play out

remains to be seen.

The successful use of hisba in the courts seems to have opened the

door for the introduction of Islamic concepts into the Egyptian law, not

through legislation but by raising cases invoking those concepts and their

binding authority on the courts. How has the introduction of Shari'a con-

cepts through court cases begun to change how those concepts are con-

ceived and practiced? A n d how has the incorporation of Islamic concepts

in Egyptian law through the courts impacted the conceptions of law and

legal practices? These questions are connected to yet other, more funda-

mental ones: it has often been asked whether Egypt is best characterized

as a religious or a secular state. What does the legalization of hisba tell

us about this question? Is it an instance of the secularization of religious

concepts through the law, or, on the contrary, an instance of the ongo-

ing subversion of secular legal structures through the use of loopholes

within them? Would it make sense to answer that it is both these things?

If not, and we must answer that it is neither, then what is the legalization

of hisba an instance of? New political and legal forms, yet to be defined?

Is it possible that the very question, that is, about whether this case of

hisba is an instance of secularization or Islamization is wrongly framed?

If so, then what exactly is wrong with this framing, and how ought it to be

reframed?

These are the questions that, initially, motivate the explorations of the

next chapter.

C H A P T E R T W O

The Indeterminacies of Secular Power: Sovereignty, Public Order, and Family

The court's A b u Zayd decision provoked an enormous amount of

anxiety and debate in Egypt. This was not only because it adjudged

A b u Zayd an apostate and annulled his marriage, and not only because

it legitimized the legal use of hisba.1 What was most stunning was its dec-

laration that hisba was a duty of all Muslim citizens, who should, out of

the public interest and to protect the public order, raise a case in court

anytime a wrong in society becomes manifest. A n d while the court em-

phasized that its decision did not violate religious freedom (because that

freedom included maintaining the conditions for the practice and culti-

vation of religious belief), it nevertheless specified no limits on this now

legalized duty of hisba. This meant that a whole range of practices consid-

ered legitimately Islamic might now be put into question. But more than

this, the decision also meant that potentially anyone could now legally

intervene into and possibly break apart anyone else's marr iage—a pros-

pect that seemed to undermine the very integrity of a private domain of

personal rights. Hisba had become a power of wide and indeterminate

range, placed in the hands of private citizens, and backed by the coercive

capacities of the state.

It was to quell this anxiety and ostensibly protect the private domain

of personal rights, that the legislature enacted a law restricting the use of

hisba to state officials only.2 But this didn't reduce any of the indetermi-

nate range of hisba, and thus any of the anxiety it caused. Indeed, both

Islamists and secular liberals opposed the legislation—Islamists because

70 CHAPTER TWO

it reserved the power of hisba for the secular state and restricted their

religious rights as private citizens, and liberals because it recognized the

legitimacy of a religious principle for public decision making and reserved

that power to the state, in contradiction to its constitutionally espoused

principles of religious freedom. Liberals were pitted against Islamists, and

both were against the state. A b u Zayd, fearing for the security of his fam-

ily and himself, left the country.

I ended the previous chapter on a set of questions concerning hisba.

In particular, I asked: is hisba, as it appears in the A b u Zayd court judg-

ments, an instance of the secularization of a religious concept or of the Is-

lamization of secular legal precepts? Indeed, the hisba decision poignantly

demonstrates the kind of blurring of religion and politics that leads ob-

servers to ask whether Egypt is a secular or a religious state. This is in

two related ways. First, hisba became a public, coercive power that could

potentially be used to punish people for holding to religious beliefs and

practices defined as heretical.3 It thus violated liberal secular prescriptions

for religion's proper boundaries. Second, and more importantly, the courts

and subsequent legislation articulated hisba very differently from how it

had been classically elaborated within the Shari'a. A s I detailed in the

previous chapter, hisba within the Shari'a was part of a set of carefully

gradated disciplinary practices that aimed to cultivate and secure certain

moral virtues. But in the court judgments and in legislation it was articu-

lated as a legal practice connected to the protection of public interest,

public order, private rights, and religious belief.4 So hisba had become

attached to liberal legal concepts even as it violated secular precepts, as it

seemed to remain a distinctly religious power exercised by the state.

So, is hisba an instance of secularization or Islamization? A n d what

light does answering this question shed upon the broader one that it pro-

vokes—whether Egypt a secular or a religious state? These are the ques-

tions I pursue in this chapter, starting with an ethnographic exploration

of the place of the Shari'a within Egyptian law. That exploration leads

me to two counterintuitive conclusions. The first is that the Shari'a, under

Egyptian law, has become liberalized in significant ways. More precisely, it

becomes confined to a private sphere, imbued with sensibilities about pri-

vacy that are distinctively liberal and largely circumscribed from any role

in the making of policies directed at the population. The Shari'a, within

the space of law, thus conforms to liberal secular expectations of religion

in significant ways.

But what does this say about hisba? A s articulated through the courts,

it seemed to strike directly against liberal secular expectations of religion.

THE INDETERMINACIES OF S E C U L A R POWER 71

How could a liberalized Shari'a and the hisba decision arise out of the

same legal framework? Was hisba just an anomaly? A n illiberal expression

of an incompletely secular law? This leads me to the second counterintui-

tive conclusion: that hisba is no anomaly, and neither is it an expression

of an incompletely secular law. On the contrary, as I will argue below, it

is entirely compatible with those liberalized aspects that the Shari'a has

taken on under Egyptian law. A s we will see in what follows, the con-

cepts and distinctions used to imbue the Shari'a with liberal sensibilities

concerning privacy were precisely the ones that enabled hisba to become

the public, coercive, and indeterminate power it became through the A b u

Zayd decisions.

Together these counterintuitive claims illustrate a broader thesis of

this chapter whose consequences will be elaborated on throughout this

book: that secularism itself incessantly blurs together religion and politics

in Egypt, and that it is a form of power that works through and relies upon

the precariousness of the categories it establishes. This, however, is not

peculiar to Egypt; it is also characteristic of many states considered to be

paradigms of modern secularity, such as France, Germany, and Britain.

The argument I offer therefore changes the status of the question of

whether Egypt is a secular or a religious state. It is an expression not of

Egypt's precarious secular status but of indeterminacies at the very foun-

dation of secular power. In other words, the question of Egypt's secularity

or religiosity is not an answerable question, but neither is it a false one; it

is rather a question whose persistence, force, and inability to be resolved

expresses the peculiar intractability of our contemporary secularity. My

aim in this chapter, and throughout this book, is to elucidate and elaborate

some of the conditions of this intractability by showing how they inces-

santly raise the question of whether Egypt is a secular or religious state.

Public Order, the Modern State, and the Active Principle of Secularism

I argued in the introductory chapter of this book that secularism should

neither be seen solely in terms of a separation between religion and poli-

tics nor in terms of its success or failure in imposing a set of regulatory

norms. Rather, it is more usefully approached as a historical problem-

space, that is, in terms of an ensemble of questions and attached stakes

that seem indispensible to the practical intelligibility of political and social

life. A t the center of this ensemble is the question of where to draw the

7 2 CHAPTER TWO

line between religion and politics and where the proper place of religion

in social life should be, and the attached stakes are those rights and vir-

tues that are historically associated with liberalism. I suggested that there

were specific structures of power and instability that led this question to

continually arise and more deeply entrench itself within social life. I also

suggested that a focus on these structures would help bring to light two

things about secularism that have not been considered together: that it

is an expression of the state's sovereign power, and that it is increasingly

fraught with an irrevocable indeterminacy.

In this chapter I elaborate on these structures of power and instability,

sovereignty and indeterminacy, and how they continually raise the ques-

tion of religion and politics. In particular, I highlight three features, all

of which underscore the centrality of the modern state, and especially its

legal power, for secularism. The first feature is what I call the active prin-

ciple of secularism.5 This is the principle that the state has the power and

authority to decide what should count as essentially religious and what

scope it can have in social life. It is through this principle that, crucially,

secularism has been established historically. A n d this same principle is

presumed in secular practice today.6 This does not necessarily mean that

the state can decide on matters of religious doctrine. But it does mean

that it can decide what about doctrine is essentially a religious matter; it

also decides which authoritative texts are relevant to making such a deter-

mination. More concretely, the state is authorized to distinguish between

the "civil" and "religious" dimensions of an act, and on that basis decide

whether the act is enforceable, punishable, or otherwise deserving of

protection or exemption under the law. A n d that process always involves

often-unarticulated understandings about what religion in the abstract is,

or should be. Hence the state is always drawing a line between the reli-

gious and the secular, and reserving its sole authority to do so. One way to

think about the active principle is to see the state as promoting an abstract

notion of "religion," defining the spaces it should inhabit, authorizing the

sensibilities proper to it, and then working to discipline actual religious

traditions so as to conform to this abstract notion, to fit into those spaces,

and to express those sensibilities.

This leads directly to a second important feature of the modern state:

the centrality of a public/private distinction. It is a distinction without

which secular power could not be brought to bear. A n d the state is typi-

cally responsible for maintaining it. Which means that the state plays an

important role in maintaining the integrity of public and private spaces.

THE INDETERMINACIES OF S E C U L A R POWER 73

These spaces, however, are never just empty ones. They are always suf-

fused and structured by various affects, sentiments, and sensibilities.

Maintaining the integrity of those spaces therefore means authorizing the

various affects and sentiments that structure them. So the state, because

it is responsible for maintaining the integrity of public and private spaces,

also works to authorize the various sensibilities that are thought to be

proper to them.

But if indeed the state has the power and authority to draw the line, and

to authorize and maintain the integrity of the proper spaces of religion,

then we are already involved in a sort of contradiction. That is because

the state is always seen as a preeminently political entity. To have it draw

a line is therefore to collapse politics into religion in a way that threatens

to subvert fundamental liberal freedoms. This leads to the third indispen-

sible feature, whose importance cannot be overstated: a rule of law. The

rule of law is important because it implies a law based on constitutional

principles and which the governors and the governed must both obey. It

is therefore a law that is supposed to be relatively insulated from those

whims and trends of political power and fashion that would threaten basic

liberties. The state's authority to draw a line, and to define the spaces and

sensibilities appropriate to religion, are typically vested within the rule of

l a w — i n the courts, the codes, the constitutions, and in judicial authority.

Vesting this power and authority within a modern rule of law, however,

doesn't eliminate the contradiction. It only shifts the contradiction onto

a different register, adding a level of ambiguity. That is because the rule

of law itself is a complex structure, bound up with questions of sover-

eignty and governmentality within the modern state. This complexity is

most fully expressed by a concept central to the liberal rule of law, namely,

the legal concept of "public order," which refers to the fundamental legal

rules and values of a particular society. Importantly, the three features I

have so far highlighted—the active principle of secularism, the centrality

of a public/private distinction, and the reliance on independent judicial

authority—are all brought together and embodied in this legal concept

of the "public order." It is therefore a crucial basis of secular power and

decision. However, it also embodies a number of peculiar contradictions

that render it deeply indeterminate.

Secular power and decision will thus reflect these indeterminacies. They

continually provoke suspicions and anxieties around the legal resolutions

of religious issues, which in turn spill out into a politics aimed at reforming

the law. However, this politics rarely reduces any of the indeterminacy or

7 4 CHAPTER TWO

anxiety that secular decision creates; on the contrary, it tends only to con-

solidate and expand the state's sovereign authority to decide what counts

as religious and what scope it should have in social life. The indetermina-

cies of the public order, then, incessantly generate the question of religion

and politics.7

Having discussed this in the abstract, I now turn to ethnographic, legal,

and historical analyses of Egyptian legal practices. Note that my argument

is that Egypt has adopted these three characteristic features of secular

power, with all of its consequent entanglements. In other words, the

problem-space of secularism is firmly entrenched there.

I begin with an ethnography of the public/private distinctions to which

religious practices are made to conform. Although it is well acknowledged

that such distinctions are crucial to the exercise of secular power, little

ethnography has been devoted to exploring how they are constructed, au-

thorized, sustained, and imbued with particular sensibilities in relation to

that power. Different contours and sensibilities of public and private often

make for the varieties of secularism found across different polities. But

the ethnography will reveal a central modality of secular power that goes

beyond the specifics of Egypt, one whose contradictions and indetermina-

cies are also characteristic of those states considered to be paradigmati-

cally secular. This is because of the connection with the legal concept of

public order, which helps authorize both public and private sensibilities.

Hence, after the discussion of publicity and privacy, I elaborate upon the

paradoxical structure of the public order, its centrality to secular power

and decision, its imbrications with state sovereignty, and how it renders in-

determinate the line between religion and politics. A f t e r this I trace some

of the historical conditions of the public order's authorizing capacity and

the processes and practices of power they were part of and continue to

facilitate. In particular I detail how the notion of family became (and re-

mains) attached to and foundational for the public order in Egypt and elu-

cidate some of the consequences of this for the public/private distinction

and how secular power exerts itself through it. Not only does this illustrate

how deeply the Shari'a has been liberalized under Egyptian law but also

how secularism's power lies in the precariousness of its own categories.

Finally, I return to the case of hisba, and, based on the preceding discus-

sion, offer a highly counterintuitive reading of its significance. Hisba, I

argue, is better understood less as an aberration from secularism than a

consolidation of that which is most crucial to it: the state's sovereign power

of decision within social life.

THE INDETERMINACIES OF SECULAR POWER 75

Public Order and Private Sensibility

It is a commonplace within liberal thought that religion ought to be largely

kept out of the public domain. That means, in part, that theological knowl-

edge ought not be the basis for the formulation of state policies directed at

the population—such as in the fields of health, social protection, finance,

and national security. The reason for this has to do with the ostensible

status of religious knowledge: since it is not verifiable by our accepted

methods of verification, it counts not as knowledge but is more properly

labeled opinion, or mere belief. The danger of letting strongly held reli-

gious opinions into the public domain is to be plagued with interminable,

irresolvable moral and possibly even civil strife. The inability to authori-

tatively settle conflicting religious views is thus a feature of religion as

commonly understood within liberal thought. A s such, religion lends itself

to arbitrary decision making, and for that reason is not seen as capable

of promoting the considered, authoritative determinations needed for

a genuinely effective public policy. Religion's proper p lace—that is, the

private d o m a i n — i s therefore linked to its status as nonknowledge. The

private domain into which it is to be placed is not only one of personal be-

lief; in liberal thought it is also a domain of intimacy; of relations between

kin, friends, lovers and spouses; and where secrets are kept away from the

glare of general scrutiny and of strangers. These associated sensibilities

are partly constitutive of the private domain within liberal thought.

I have therefore set up for myself a seemingly contradictory task. O n

the one hand I want to show how the Shari'a, under the law, has acquired

limitations and sensibilities that conform to liberal secular expectations of

religion in significant ways—confined to a private domain, imbued with

liberal sensibilities on privacy, and largely circumscribed from state policy

making directed at the population. On the other hand I want to show how

the acquisition of those very limits and sensibilities is compatible with the

broad social range and legal scope that hisba had attained under the same

law. What this means is that I must identify and detail a distinctive con-

ceptual and affective structure that enables both of these contradictory

tendencies. This is the task I undertake here, starting with an ethnography

of how publicity and privacy are conceived and practiced in the personal

status courts. I highlight the distinctiveness of these notions by comparing

them with the very different senses of openness and secrecy displayed by

the Fatwa Council of A l - A z h a r — a space where the Shari'a is employed

7 6 CHAPTER TWO

in response to questions and problems that overlap with those of the per-

sonal status law. My discussion of the Fatwa Council inaugurates the com-

parative approach that I will develop in subsequent chapters.

To frame the following ethnography, let me begin with a brief histori-

cal note on the personal status courts. In the late 1800s the Egyptian state

instituted a national court system, based largely on French law, alongside

the older Shari'a courts. This was the state's attempt to establish a liberal

rule of law in order to consolidate its sovereignty over and against the

broad European influence that had deeply entrenched itself there. A s part

of this process, the Shari'a courts were gradually reorganized to reflect

the procedural precepts of a liberal rule of law, and their jurisdiction was

increasingly restricted, making space for the national courts. The two ex-

isted side by side until 1955, when the Shari'a courts were absorbed into

the national court system, creating a single, unified court structure. What

were once the Shari'a courts thereafter became known as the personal

status division of the national court system, and while the substance of

personal status law was still based in the Islamic Shari'a, the general law

of civil procedure came to govern its procedures.8

O n e important element of my ethnographic fieldwork was to attend per-

sonal status hearings. I wanted to see how the Shari'a was being shaped as

part of modern legal practice and the consequences of its being embedded

within a largely European-derived legal framework. But I had enormous

difficulty accessing personal status hearings, at least at first. The set-up

of the courtroom certainly gave the initial impression of an open forum.

Its aged pale walls often harshly reflected the plentiful sunlight that came

through large, open windows, and it would be packed with people, with

barely a place to stand, their noise and energy blending into the sounds

of the street below. But the spacious chairs of the judges' bench, slightly

elevated above all the rest, would be empty. Or if they were not, they were

occupied not by judges, but litigants, often sitting listlessly, pensively.

Off to the side was a door that led into a smaller chamber. Standing

in front of it would be a man with a list. He would call out numbers and

names; a few people would enter the smaller chamber and leave again

after a few minutes. This would continue until the end of the session. It

turned out that the judges were in that chamber, known as the delibera-

tion chamber (ghurfat al-mudäwala), and that they were conducting the

case hearings within it. The man at the front of the chamber door was the

court usher (hägib).

The door of the deliberation chamber was almost always left ajar, but if

THE INDETERMINACIES OF SECULAR POWER 77 you tried to move up to see or hear what was happening inside (as I often

did), the hägib would harshly intervene and push you back. This was the

set-up for almost all personal status hearings. Although I sometimes en-

countered open hearings, they were on the whole rare. In effect, personal

status hearings were secret.

This bewildered me, because the publicity of court hearings was a long-

standing and foundational legal principle enshrined in both the Egyptian

procedural codes and the constitution. Violating this requirement typi-

cally rendered judgments null and void. The court, however, was allowed

to make exceptions. The laws state that exceptions can be made for con-

siderations of public order, morals, or the sanctity of family (hurmat al-

usra).9 However, what was an exception under the law had apparently

become the rule for personal status hearings.

This situation, deeply frustrating as it was for me at the time, also

brought up a slew of questions that became a focus of subsequent ex-

ploration. How, after all, does a public personal status hearing threaten

public order? What does the "sanctity of the family" mean anyway? A n d

wouldn't concern over the family only entrench the importance of public

trials as a foundational procedural principle of its protection?

My curiosity piqued, I began to ask lawyers I knew about this. O n e

lawyer, Khalll, a specialist in both public and personal status law, insisted

it would be impossible for me to observe personal status hearings because

the law explicitly required them to be secret. But when asked to show

me where in the codes these secrecy requirements were, he couldn't find

them. Al l he could find was the already well-known article in the Egyptian

procedural code I noted earlier: hearings must be public except when the

judge deems secrecy necessary to protect the public order, morality, or the

sanctity of family.

There were, however, two articles of the procedural c o d e — n u m b e r e d

871 and 878—that required personal status requests to be heard in judges'

consultation chambers; one of these referenced speed in the expediting of

cases.10 It was unclear, though, if they implied a secrecy requirement, since

they were not explicit about that. But Khalll told me this didn't matter.

Personal status cases, he said, are about intimate affairs, and that is why

they are heard in judges' deliberation chambers. He said that even the

brother or a sister of a spouse would be expelled from the hearing if they

bore no legal relation to the case.

Yet the equation of these articles with a secrecy requirement turned

out to be less than straightforward. Articles 871 and 878 were added to

87 CHAPTER TWO

the procedural codes in 1951. But ethnographic descriptions of personal

status hearings done much later, in the early 1970s, show that they were

largely public. Here is one such description of an urban personal status

court in Cairo:

The participants in the court are characterized by a high degree of informal-

ity. Litigants usually came accompanied by friends, relatives and neighbors.

One woman decided to feed her baby whilst other women were seen eating

"tameya" [a common Egyptian food, similar to falafel]. . . . Whilst the Court

was in session most of the litigants were talking so that not only was the room

overcrowded . . . but it was also quite noisy . . . the litigants themselves were

quite informal in their manner before the judges. They would walk right up to

the bench with hardly any physical distance between them and the judges. Very

often the women would drag their small children along.11

A s this and other descriptions show, personal status sessions in the early

1970s were largely open and highly informal. Despite the articles requir-

ing personal status requests to be heard in deliberation chambers, what

could or could not be heard in the courts was not, according to these de-

scriptions, strictly policed.

However, in the mid- to late 1970s, a shift toward secrecy seems to have

occurred. This shift is registered in Court of Cassation judgments of that

time, which show a willingness to overturn lower personal status court de-

cisions issued from hearings not conducted in secret. This was even though

there were no explicit provisions nullifying personal status decisions is-

sued f rom public hearings.

T h e court, however, justified its stance through a set of concepts and

sensibilities it saw as central to the public order. Thus in one judgment

the court began by emphasizing that the publicity of court hearings is a

basic, foundational, procedural principle essential to the legal order and

to public confidence in the judiciary, and whose violation therefore nulli-

fies judgment. Hence, the court reasoned, in those specific types of cases

where the legislature intended secrecy in hearings, such secrecy should be

considered an equally foundational principle, whose violation equally im-

plies nullity of judgment. T o help interpret articles 871 and 878 as implying

a secrecy requirement, the court defined the family as a unit of intimate,

personal relationships. It also noted that the constitution had placed the

family at the foundation of society. Secrecy on family issues, it argued,

was therefore as foundational to society as judicial publicity. Only by ad-

THE INDETERMINACIES OF SECULAR POWER 79 dressing its affairs within a highly restricted space could a family's secrets

be preserved in the courts. This is just what articles 871 and 878 provide

by requiring personal status requests to be made in judges' consultation

chambers. A n d this, the court argued, confirms that the legislative intent

behind those articles must be secrecy in personal status hearings.12

Since the 1970s, the court has, through similar reasoning, interpreted

articles 871 and 878 as a secrecy requirement aimed at protecting the

public order. Note here how the court's reasoning brings together a set

of concepts and affects—family, intimacy, publicity, secrecy, and public

order—in a distinctive way that made it possible to invert the fundamental

procedural principle of court publicity. Through them, the intimacy of the

family is made foundational to the public order.

The sensibilities about family and intimacy emphasized by the courts

to justify secrecy are now well established in them, woven into judicial

deliberation in ways that sometimes trump more technically correct legal

arguments. Here is one court case I observed when I finally gained access

to a personal status court, which illustrates how sensibilities concerning

intimacy and family pervade the space of personal status law.

A woman holding a child's hand walks in along with a lawyer; behind

her a man and his lawyer walk in. Facing the panel of judges, the lawyers

begin talking loudly at the same time, but the head judge quiets them. H e

speaks directly to the woman (bypassing her lawyer entirely) and asks who

she is, and who the child, a little boy of maybe four to five years, is. Stating

her name and the child's name, she says that he is the son of her recently

deceased husband. A s she is not the biological mother of the child, the

child is an orphan.13 We learn that the other man, the plaintiff, is the child's

uncle, his father's brother. The dispute, it turns out, is about who should

have guardianship over the child's inheritance from his father.

Custody over orphaned minors and guardianship of their finances are

considered to be separate issues in Egyptian personal status law,14 and al-

though it is presumptive that custody and financial guardianship be vested

in the same person, there are cases where these are separated. Such a

separation was at stake in this case.

The lawyer representing the uncle states that since the woman is not

the child's real mother, she should not have priority over financial guard-

ianship, especially when there is family disagreement about it. A t this the

woman's lawyer begins to interrupt, but the head judge sternly raises his

hand to silence him. The head judge turns to the woman and asks her

what she wants. She answers that she had raised this child ever since he

89 CHAPTER TWO

was two years old, and asks the panel of judges if this means nothing. She

begins to cry. The lawyers each dive in, arguing vehemently to the head

judge. Again, he loudly and sternly shuts them up. The woman's lawyer's

argument was based on a document that the plaintiffs had submitted to

the court, which questioned the share of inheritance allotted to the child.

He argues that this is the real issue, and that as such the court has no juris-

diction over the case, because it only decides guardianship over, and not

allotment of, inheritance. The lawyer thereby cast doubts on the uncle's in-

tentions, implying that his plaint expressed no real concern over the child's

welfare but was rather a connivance to control and ultimately reduce the

child's share of inheritance. A t this the uncle's lawyer broke in with loud

objections.

The head judge, fed up with the lawyers' fierce and unruly argumenta-

tion, expels all the litigants from the courtroom until the end of the session.

By then, the little child, terrified by the vehemence of the argumentation

and the sternness of the judge, had begun to cry uncontrollably.

A s the litigants exited the courtroom, one of the judges noted how

very closely the child clung to his stepmother throughout the exchange.

He shook his head and said that this closeness, the closeness between a

mother and child, must be taken into account in their decision. The head

judge, however, was not entirely convinced. He wanted to appoint a court

expert to look into the matter and decide. The other judge disagreed. He

said that this was unnecessary, and that after all, this woman had raised

the child for three years and that he was in her custody anyway. The head

judge retorted that custody and guardianship over inheritance were differ-

ent things, and that the latter was in his jurisdiction, while the former was

not. The other judge replied that while he knew this was legally correct, it

just didn't make sense to give custody to one and guardianship to another

when the former is capable of such guardianship. A f t e r all, he said, when

the child reaches ten years of age he will go to the custody of his father's

side anyway. But, he insisted, that she was the one who raised him had to

be taken into account. A t this point the third judge, who had remained si-

lent throughout the argument, registered his agreement, that the fact that

she had raised him had to be taken into account.

This convinced the head judge not to appoint an expert. Instead, he

called them back in. He heard the mother's lawyer first; the other began to

cut in, but the judge silenced him. Finally, the uncle's lawyer spoke again,

boldly declaring that the issue was clear cut: a child's uncle has legal pri-

ority over a woman who is not his mother in issues of guardianship over

inheritance.

THE INDETERMINACIES OF SECULAR POWER 81

The woman was crying, as was the child. Finally, the head judge spoke

softly to the child, beckoning him over to the side of the table. He asked

the child his name. The judge then pointed to the woman, and asked him

if he knew her. The child nodded, and said yes, it was mama. H e started

to whimper, but the judge calmed him. He then asked the child who he

wanted to be the guardian over his finances, whereupon the child shouted

"Mama!" and started to cry loudly once more. The judge, calming him

yet again, pointed at his uncle and asked him if he knew who this man

was. Again the child nodded and said, "it's uncle." The judge then asked

the child if he wanted his uncle to be guardian over his money. "No!" he

wailed, "I want mama!"

Thus the judge had it written down that the child desires that this

woman, his father's wife, be the guardian over his inheritance and rejects

his uncle as guardian. The uncle and his lawyer could not hide the incre-

dulity on their faces, that the judge had allowed this little child to decide,

as they exited the courtroom. This case is an example of how perceived in-

timacy can sometimes trump a more technically correct legal argument in

the personal status court. The child's intimacy with his stepmother, dem-

onstrated by how closely he clung to her during the exchange, prompted

the judges to the considerations that led to this outcome.

But besides being woven into judicial deliberations, sensibilities around

intimacy and secrecy suffused the entire space where the sessions took

place, as well as the dispositions of the judges. This was made clear to me

when I was finally permitted to attend personal status hearings, as I was

always made to feel acutely that I was intruding despite the permission of

the judges. During the hearings I was often the only person in the chamber

besides the panel of judges and the litigants of a particular case, and I was

often made to sit away at the back. The chief judge of one court I had been

attending never told other senior judges about me and straightforwardly

refused my requests to introduce me to other judges. He explained that

these were matters on which some judges would not like to be approached,

implying that they were sensitive. When once we came upon some of his

fellow senior judges after the court session, he introduced me with a false

name and profession: "Omar, a journalist." In the personal status courts

today, sensibilities of secrecy and intimacy are woven together with no-

tions of family, producing a courtroom ambience that contrasts strikingly

with what we saw in the descriptions of the early 1970s.

A l l indications show that these sensibilities are becoming further en-

trenched. The Egyptian state has through recent legislation15 established

a system of family courts as a space of intimacy, which includes a set of

82 CHAPTER TWO

reconciliation centers staffed with psychologists and social workers to

which families must attend before they proceed with divorce litigation. I

had a chance, toward the end of my fieldwork, to attend some of the ses-

sions of these reconciliation centers and talk with psychologists and social

workers who conduct them. O n e of their biggest complaints was that there

were too many cases and too little space in these centers for families to

have the privacy needed to genuinely discuss the personal issues at the

root of their problems. There were often at least two, if not more, families

in the reconciliation centers at the same time. This lack of privacy, they

claimed, attenuated any chances for reconciliation.

Is Islamism the Cause?

The shift toward secrecy happens to coincide with a dramatic rise in

Islamic religiosity in Egypt, the beginning of what many have called

Al-Sahwa Al-Islamiyya, or the Islamic Awakening. It also coincides with

a decade (starting in 1970 and ending roughly around 1981) of intensive,

state-sponsored legal and political reforms, of what has often been called

"state-Islamization" and cited as a central factor in the Islamic Awak-

ening. During this decade, we find, among other things: constitutional

amendments first strengthening and then fully establishing the Shari'a's

status as Egypt's principal source of legislation;16 a wave of court litigation

challenging the constitutionality of existing laws in light of these amend-

ments; a stream of reform bills introduced by members of Parliament who

were sympathetic to the Muslim Brotherhood; the state-initiated drafting

of massive reforms of the penal, civil, and procedural codes in consultation

with the religious establishment (Al -Azhar University); and finally, inten-

sifying and increasingly polarizing debate around all of these activities,

until the assassination of President Anwar Al-Sadat in 1981, after which

they all went into steep decline.17

Given that the shift toward secrecy occurs during this volatile period,

it is tempting to see it as arising out of a growing religious sentiment fa-

cilitated by state reform. This was the explanation I held, initially. Fur-

ther research, however, seemed to complicate and confound this initial

conclusion.

Take, for example, the constitutional amendment making the Shari'a

Egypt's principal source of legislation. It was seen by many as a watershed

of state Islamization. But it had entirely counterintuitive effects. The Su-

preme Constitutional Court (SCC), whose contours were also set in place

THE INDETERMINACIES OF S E C U L A R POWER 83

during this period of reform, interpreted the amendment as giving judges,

most of whom are not religiously trained, the power to make Islamic in-

terpretations without necessarily having to take the pronouncements of

religious authorities as final. In situations where there were differences of

opinion among religious scholars, judges were empowered to use ijtihäd—

a form of reasoning relatively independent of religious t e x t s — t o make

their judgments. This point is especially salient as there is disagreement

among religious authorities over a very wide range of issues. The SCC's

interpretation of the constitutional amendment therefore gave enormous

interpretive leeway to judges, instead of restricting them. A n d when judges

employed ijtihäd, they typically resorted to enacted legislation—unre-

lated to religious l a w — i n lieu of the ambiguities of revealed texts to find

the guidance they sought. In practice, this power of ijtihäd enabled judges

to strike down with relative ease any Islam-based legal challenges to state

policies concerning health and the national economy.18 So the effect of the

constitutional amendment was actually the reverse of what might have

been expected. Rather than increasing the scope the Shari'a's application

within social life, the amendment worked to largely circumscribe its role

in the making of policies directed at the population.19

This circumscription of the Shari'a through S C C jurisprudence is also

consistent with a whole range of state-sponsored legal and political re-

forms during the decade of the 1970s, none of which can be adequately

captured by the term "Islamization." Indeed, a number of fundamental

reforms during that period were recognizably liberal. These included the

implementing of constitutional review as a constitutional principle, the

establishment of a relatively independent Supreme Constitutional Court

and the granting of greater independence to the judiciary more generally,

the allowance of relatively greater press freedom than before, the freeing

of a mass of political prisoners held under the Nasser era, and the revoca-

tion of the long-standing state of emergency. Indeed, the only time A l -

Sadat reinvoked his emergency power after this was to reform the personal

status law in the direction of liberal equality between women and men.20

Things become even more perplexing when we find that the shift to-

ward secrecy and intimacy during the 1970s didn't happen just in Egypt. It

has also been noted in Europe and the United States, where the law has

increasingly cast family, and especially marriage, relations as emotional,

intimate bonds. This trend has been attributed to a growing legal empha-

sis on individualism and equality on the one hand, and the gradual usurpa-

tion of traditional family functions by state agencies on the other, making

8 4 CHAPTER TWO

it more difficult to define just what a family bond is and does, and reinforc-

ing the emphasis on its intimate, personal, and emotional dimension.21

A l l this brings us to an impasse on how to best characterize this shift

toward secrecy. Was it a result of growing religiosity, or of pressures to re-

form personal status law in a liberal direction? Was it that Islamic and lib-

eral sensibilities just happened to coincide? The impasse we have reached

here echoes the one that set us out on this investigation in the first place;

namely, whether hisba is an instance of secularization or Islamization,

and whether Egypt is a secular or a religious state. How then, to move

forward?

A Different Structure of Secrecy and Openness

To get beyond this impasse we need to think beyond the categories that

lead to it, and focus instead on the structures of power that both establish

and undermine them. The continued resort to such categories to explain

the shift to secrecy, or the transformation of hisba, diverts attention away

from these structures of power. It also obscures something that would oth-

erwise be strikingly familiar in what I have so far recounted about the

personal status law.

It is often the case that those things that are the most familiar are also

the ones that are least taken notice of. Sometimes it is only by providing a

stark contrast with them that their distinctive features, obscured in and by

their familiarity, can be made to stand out again, available to thought once

more. This is just the sort of contrast and renewed recognition I would like

to attempt here by recounting a very different experience of openness and

secrecy from that of the personal status courts. This was through my en-

counters in the Fatwa Council of A l -Azhar (Lagnat al-Fatwa bi'l Azhar),

whose sessions I also attended as part of my ethnographic fieldwork. Fat-

was are nonbinding religious answers sheikhs provide to questioners about

how to conduct certain aspects of their lives. Sheikhs, in their fatwa-giving

capacities, are called muftisP

Comparing the personal status courts with the Fatwa Council of A l -

A z h a r will help to get beyond the impasse reached above. It will show

that the shift to secrecy is not due to a rise in Muslim religiosity, nor to

an inadvertent confluence between Islamic and liberal sensibilities. It will

also lead to a recognition of something that is highly familiar but taken

for granted and therefore unaddressed by the explanations for the shift

THE INDETERMINACIES OF S E C U L A R POWER 85 cited above: how it is that family becomes linked with both intimacy and

state power through the law in the first place. This, in turn, will refocus

our attention away from the causes of the shift and on to the concepts and

sensibilities by which it is authorized and how they came together. A s we

will see, those concepts and sensibilities came together long before the

shift, establishing the framework of privacy and publicity within which it

occurs.

The Fatwa Council of A l - A z h a r was inaugurated in 1935 by Sheikh

al-Azhar Mustafa al-Maraghi and was placed officially under the Ministry

of Religious Endowments (Wizäratal-Awqäf).23 It is a central fatwa-giving

body for people in Cairo; being enormously popular, it is always full with

people from all walks of life, and they seem to take very seriously the fat-

was of the muftis.24 Since at the beginning of my fieldwork I could not get

into the courts, I spent much time observing the sessions of the council.

The Fatwa Council addresses many of the same issues as personal status

courts, also basing its decisions on the Shari'a, except that the fatwa is not

binding upon its recipients. But in the council, I found nothing like the

sense of secrecy found in the courts, neither among the muftis and other

council officials nor those who came to ask for fatwas.

Only one sheikh, who helped me get research access to the council,

mentioned that if matters became a little sensitive (hassäsa) then I might

lean slightly away from the mufti and the questioner. When I mentioned

the issue of privacy (al-sirrayya) to other muftis they all shrugged it off as

unimportant. A f t e r a question about divorce or other marital problems a

mufti would sometimes introduce me to the questioners as a researcher

from the United States, and they would, somewhat nonchalantly, greet me.

Yet other muftis mentioned that I ought to tape-record all the questions

and answers, or write notes as the sessions went along, and it was I, not

them, who raised the issue of the possible sensitivities of the questioners.

They would agree that I might have a point, but would then often say,

"Well, do what you like."

The setup of the dimly lit council and the generally calm demeanor of

the muftis and questioners within it together produced a sedate, low-key

ambience that contrasted sharply with the harsh lighting, boisterous en-

ergy, and constant noise of the courts. It was an ambience that, while at

first might be associated with a secluded domain of secrecy, will quickly

be found to have little to do with it. Al though there were officials who

helped direct questioners to the muftis, there was no active policing of

what one could or could not hear in the council, as there was with the

86 CHAPTER TWO

hägib (court usher) in the courts. In the main part of the council room one

finds couches and chairs placed along all four of its walls. Directly across

from the couches and chairs where each mufti sat were seats for question-

ers; adjacent to them were a number of other seats occupied by people si-

lently waiting their turn to ask. Although the muftis were spaced all along

the four walls of the council, none were far enough away to prevent one

from hearing questions and responses. A b o v e the ongoing murmur in the

council I was often able to tune into other conversations between muftis

and questioners a short distance away, even though I was sitting right next

to another mufti. In some cases, even other questioners who were waiting

their turn would get involved in a conversation with the mufti and a par-

ticular person about the question he or she was asking.

The issues that came up with the muftis were as intimate as could b e —

about sexual practices, extramarital affairs, issues of past child abuse. Yet

I listened in with little problem. For example, one man approached the

mufti quite embarrassed that he had to ask the following question, he

claimed, for his friend: the friend had just converted to Islam from Chris-

tianity. During sex his wife, who was still Christian, would perform fel-

latio ("kiss his penis [bashar]"). This was done before he had converted

to Islam as well. He wanted to know if this was allowed in Islam, and if

it wasn't, whether he would be forgiven for having had it done. Another

questioner explained that he had committed adultery and then stolen the

possessions of the woman he had slept with. A newly graduated sheikh

who couldn't control his bowels wanted to know if he could still be the

imam of a mosque. A woman claimed that her husband had "reverted"

to sun worship; she had found him in their bedroom worshipping with a

number of young, apparently college-age women.

Another question was from the brother of a woman; he had just found

out that their father had slept with her some fourteen years ago. He didn't

know what to do and thought that his life had been destroyed. The mufti's

answer indicated one possibly different sense of secrecy than found in the

courts; he first asked about the woman's current situation. The brother said

that she was married and that the only other people who had known what

transpired fourteen years ago were his immediate fami ly—his mother and

his other brother. He felt betrayed by his family who had withheld this

knowledge from him. The mufti, however, advised him to do nothing, and

to move away from his family if he could not bear this knowledge. He said

that G o d had "satar" or "covered" upon her and the incident in question,

and that this was better for her. For if he revealed what had happened to

T H E INDETERMINACIES OF S E C U L A R POWER 87

her fourteen years back, her husband would undoubtedly leave her and

she would become unmarriageable. G o d had "covered" upon the issue,

and it seemed this was better for all. (And maybe, the mufti said as an af-

terthought, the husband had come home drunk and mistaken his daughter

for his wife.) This alternative sense of secrecy expressed in the concept of

satr Allah was described in some detail in the previous chapter as a nu-

anced concept that helped organize various practices of moral inquiry,

like hisba, used to secure individual and collective virtues deemed vital to

Islamic tradition. It was also noted in the last chapter that satr Allah, in

its classical elaborations, did not fit readily into the public/private distinc-

tions typically expressed in modern liberal law.

This not to say that there were no points where I was not allowed to

l isten—but that they were differently articulated than in the courts. Once

a woman came in with her husband complaining about the way her in-laws

were treating her. Her brother-in-law, in particular, continually insulted

her. She made her complaint to a group of sheikhs who were sitting to-

gether in the main sheikh's room, waiting for the evening prayer call that

also marked the end of that day's Ramadan fast. Both an Azhari student

named Karlm and I were also sitting in this room waiting to break the fast

(by then the Fatwa Council had closed, and all fatwas were provided out

of this main sheikh's room in Al-Azhar). When she demanded a divorce

from her husband, the other sheikhs immediately began to counsel recon-

ciliation. One of the sheikhs, however, suddenly turned red in the face and

exploded into a vehement tirade about how shameful and wrong it was

that her in-laws had insulted her in this way, and how no one has proposed

any remedies for this.

The other sheikhs sat in stunned silence for a moment before they all

nodded, murmuring agreement. O n e of them asked the woman: "what

did his brother say?" A b o u t to tell them, she stopped suddenly, looked

straight at Karlm and me, then averted her eyes away from everyone. She

stayed silent. The sheikhs looked at us, and as the call to prayer was just

about to start, told her that they would continue this later, after the prayer.

Clearly, her verbalizations of her brother-in-law's insults were not for us

to hear. It was a sensitive issue. Notably however, it was she, and not the

sheikhs, who initiated the need for privacy. The sheikhs simply respected

her desire.

The muftis treated some cases in a more secretive way. They never

hesitated, however, to inform me of their details afterward. Some of these

cases, however, seemed to have nothing to do with intimacy: two men told

88 CHAPTER TWO

a mufti of their sister's mental trauma; she couldn't sleep and suffered leth-

argy and depression. She sat a distance away from them, against the wall,

arms crossed against her shoulders, head turned up and to the side, mum-

bling to herself. Looking at her, the mufti insisted that this was a matter for

physicians or psychologists. But the two men claimed a peculiar phenom-

enon: anytime she played a tape of the Qur'an, the tape player destroyed

the tape. This did not happen with other tapes. They showed him a tape

the player had destroyed, whereupon he became silent and pensive for

several moments. He then gave them his phone number and told them to

call him to discuss the problem. Yet on the other hand, the muftis asked

questions that seemed to me sensitive or intimate, but nobody flinched:

"Did he divorce you before or after the 'dukhla ' (the 'entering,' which

means the consummation of the marriage)?"

Thus, in the council, intimacy and secrecy were not entirely conflated,

as they seemed to be in the courts. Otherwise intimate issues were dis-

cussed with a kind of openness, in that others could hear, or even, in some

cases, get involved in the discussion between a questioner and a mufti.

Moreover, there was a general unconcern about this openness, as shown

by the fact that the council was unpoliced with respect to issues of secrecy

in general, in contrast with the strict policy of what could and could not be

heard in the personal status courts.

A n d yet it is important to point out that the openness the Fatwa Council

displayed cannot be considered the same as the publicness of the courts,

or publicity in general. In fact, there were certain ways in which the muftis

were averse to publicity. For example, they were often reluctant to write

down the fatwas they issued. A n d even when they did, it would never be

on official Azhari letterhead; they would always tear off the letterhead

before writing.25

Also, muftis and council officials were typically wary of journalists.

Once, when I had been sitting in the council for an extended period of

time, a mufti approached me and asked in a hostile way if I was a jour-

nalist. A f t e r it was explained that I was a graduate student studying the

Fatwa Council and that the other sheikhs knew about me, that hostility

completely subsided. In some cases journalists who come to the council

establish a good relationship with a mufti, who will then answer specific

questions to be published in a newspaper. Yet other journalists were

avoided, or given the runaround. I remember the case of one very per-

sistent journalist who wanted to get a fatwa on whether or not a woman

could be a ma'zun, or marriage notary. He would wait patiently until his

turn came, whereupon the mufti would ponder his question for a while,

THE INDETERMINACIES OF S E C U L A R POWER 89

and then send him to another mufti who might better answer it, and where

he had to wait yet again, only to be sent off once more. Af ter the council

had closed for the day, I went to the main sheikh's room and was surprised

to see, a few minutes later, the same journalist walking in, his question still

unanswered. Finally, one sheikh sitting next to me relented and attempted

to answer his question, saying that while there was nothing he knew of in

the Shari'a to forbid it, the prospect of a woman ma'zun didn't make sense

to him. Af ter the journalist left, the sheikh turned to me and joked about

how these journalists are always causing trouble (y'amilo mashäkil) by

asking provocative questions like this.

But probably the most telling example of how the openness displayed

here cannot be equated with publicness is the time when I returned to the

Fatwa Council after having been away for some time, this time equipped

with an expensive digital recorder. I boasted to the sheikh who initially

helped me access the council about this recorder, emphasizing how I could

put all the recordings on computer and send them through the Internet.

A t this he became distinctly uncomfortable, and then said to me that the

problem was that the sessions involved the secrets of people (asrär al-nas),

implying that I should not record them. This initially surprised me, as he

was the one who suggested to me most often to tape-record the sessions

in order to better capture the necessary detail of the interactions, and that

if I didn't tape-record, I should at least write notes while the interactions

were occurring. It was also the first and only time I heard a sheikh mention

the word "secrecy" with regard to the council. However, it became clear

to me that it was not the recording per se that disturbed him, but the abil-

ity to send out those recordings throughout the Internet, which was at the

time still relatively new in Egypt, and whose vast possibilities for publicity

and defamation were beginning to be suspected.

Thus while the sessions of the Fatwa Council were open and generally

unpoliced with respect to secrecy, there was an aversion to, or reluctance

to engage with, the kinds of publicity represented by official documents,

journalists, and the Internet. These forms of publicity, however, are pre-

cisely the ones to which, ideally, court publicity applies: proceedings must

be open to the public, judgments must be pronounced in an open forum,

and judgments along with the official reasoning that led to them must be

published and recorded in archives where they are in principle accessible

to everyone. The point of publicity in the court is to allow court action to

be scrutinized by any and all. However, it is interesting and important

to note that the actual deliberations of judges are conducted in their de-

liberation chambers and thus shrouded from public view, even if official

90 C H A P T E R T W O

justifications are published along with judgments rendered. A n d while

court publicity implies open scrutiny of court proceedings, it nevertheless

prohibits people from actually participating in them. T h e council, on the

other hand, while averse to such scrutiny, nevertheless displays a kind of

openness that actually allows people to participate in fatwa proceedings.

Moreover , deliberations among the muftis of the council, in those situa-

tions where it occurs, are not conducted secretly, as they are among judges

in the courts. These respective differences may have to do with the fact

that each is conceived to have a different purpose: the court, to dispense

justice; the council, to give advice. I will discuss some of these differences

in purpose and practice in more detail in subsequent chapters.

But for now, let me emphasize the point of my comparison and bring

it back to the impasse described above. B o t h the personal status courts

and the Fatwa Council of A l - A z h a r are products of modern reforms,26 and

both are institutions under the state. B o t h are based in the Shari'a, and

they deal with a broadly overlapping range of issues. B u t in the Fatwa

Counci l there is nothing like the sense of privacy or secrecy that surrounds

personal status cases. This is even though, from my experiences when I

finally did get into a personal status court and got transcripts of personal

status proceedings,2 7 the issues addressed in the Fatwa Counci l could be

deemed more sensitive than what happens in the courts. Proceedings I saw

in courts often went like this:

JUDGE: DO you know the husband of this woman?

WITNESS: y e s .

j: what is your relationship to him?

w: he works with me in my store,

j: does he treat his wife well?

w: yes.

j: It is said that he beats her in public,

w: I have never seen this.

W h e n I saw such proceedings and read through the transcripts I ob-

tained of others, I was surprised that they were closed off to the public. I

could only think to myself that they were not at all as sensitive as the things

I saw in the Fatwa Council . T h e y couldn't be, I realized, simply because

personal status court proceedings are so highly proceduralized.

But the issue is not simply one of degrees of sensitivity. Neither is it one

of greater or lesser openness or secrecy in the council than in the courts.

A f t e r all, personal status hearings were, from the early descriptions, gen-

THE INDETERMINACIES OF S E C U L A R POWER 91

erally more open before the 1970s shift. But that openness, as we see here,

is not the same as that of the council. What is important, then, is that the

Fatwa Council displays a fundamentally different structure of sensitivity

and openness than is found in the courts. While the courts link intimacy and

secrecy as part of the legal category of family, in the council intimacy and

secrecy seem to be separate, linked and structured in other ways that may

include notions such as satr Allah. Similarly, the openness displayed by

the council is different from and actually averse to the forms of publicity

implied by the general requirements of court practice, even as it allows

for open participation in its proceedings in a way that is prohibited by the

courts. More than that, while the public/private distinction is indispens-

able to the legitimacy of court practice, and explicitly so, it is irrelevant

to the fatwa practices of the council, as shown by the general unconcern

by council officials and muftis about policing what can or cannot be heard

within. The openness and secrecy displayed by the council cannot there-

fore be mapped onto the public /private distinction of the courts, having

neither the same structure nor the same centrality.

This comparison between the personal status courts and the Fatwa

Council of A l - A z h a r helps us realize three things. The first is that the shift

to secrecy in the courts cannot be due to a rise in Muslim religiosity (i.e.,

Islamism) or to a confluence between Islamic and liberal sensibilities. If

it were, then we would have seen similar sensibilities and practices in the

Fatwa Council too. But as we saw, the council displayed stark differences

from the courts. This leads to a second realization: how distinctive the con-

figuration of concept and affect expressed by and within the courts is. The

Fatwa Council shows us that intimacy and secrecy need not be conflated

as they are in the courts, and neither need they together be linked to (and

the links between) concepts of family and public order, as is found by the

courts. These links between family, secrecy, intimacy, and public order

create the conceptual and affective framework of publicity and privacy

through which the shift to secrecy is authorized and within which it occurs.

This leads to the third realization: how distinctively liberal are the charac-

teristics that the Shari'a has taken on under the law. Earlier in this chapter

I highlighted a set of liberal commonplaces about religion. Assumptions

about the Shari'a in Egypt differ fundamentally from those commonplaces.

In liberal thought religion does not constitute verifiable knowledge; as

such it must be kept away from state policymaking and placed in a private

domain associated with secrecy, intimacy and family. Shari'a knowledge,

however, is seen within Egyptian law as by and large verifiable; as such it

is in-principle to be involved in making policy determinations and thus

92 CHAPTER T W O

should have an important public character. Yet despite these contrasting

assumptions, we find that the Shari'a, under the law and within the courts,

has become confined to a private domain of personal status and imbued

with recognizably liberal sensibilities concerning privacy, intimacy, and

family. More, despite the constitutional amendment making the Shari'a

Egypt's principal source of law, and even counterintuitively through it, the

Shari'a has become largely circumscribed from state policies directed at

the population. That is, the Shari'a, through and within the law, has ac-

quired limitations and sensibilities that conform to liberal secular expec-

tations of religion in significant ways. How is it that the Shari'a comes to

conform to such expectations when assumptions about its role and status

in society differ so markedly from them? What this disjuncture suggests

is that such assumptions might be less important than the conceptual-

affective framework of family, secrecy, intimacy and public order within

which the Shari'a has become embedded. The centrality of the notion of

public order within this framework points to an important relationship

between family and state power that needs further investigation.

I launched this discussion of the Fatwa Council at an impasse. I said

that comparison with the personal status courts would take us beyond it.

The comparison led us to conclude that Islamism is not the cause of the

shift to secrecy, that the Shari'a under the law had become highly liberal-

ized in significant ways, and that it has also become embedded within a dis-

tinctive set of conceptual and affective links to which the notion of public

order is central. How does this help us out of the impasse? It leads us to

focus less on the shift to secrecy and more on the framework within which

it occurs and through which it was authorized. It leads us to ask about the

conceptual and affective associations of this framework, how they were

historically constituted, and the modalities of power they articulate. More

concretely, we are led to the following questions: what exactly is this con-

cept of public order? How did it become linked with concepts of family

and sensibilities about privacy and intimacy as part of a religiously derived

law in Egypt? A n d what, if anything, do these links have to do with hisbal

These are the questions addressed in the next sections. We start with a

case of Christian polygamy.

The Public Order Paradox and Christian Polygamy

A s I had mentioned earlier, religious law governs family matters in Egypt,

and the family law by which an Egyptian is governed thus depends on his

THE INDETERMINACIES OF S E C U L A R POWER 9 3

or her religion. For example, in marriage, Muslims are subject to the laws

of the Shari'a and Christians to the specific laws and rites of their respec-

tive denominations. However, in cases of mixed marriage, that is, between

a Muslim and a Christian, or between Christians of different denomina-

tions, the Shari'a prevails. T h e fact that the Shari'a governs mixed denom-

inational marriage raises an interesting possibility: since the Shari'a allows

for polygamous marriage, doesn't this mean that Christians in a mixed

denominational marriage can also be polygamous? This was the question

the court addressed in a case that took place in the late 1970s.

T h e case is discussed by legal scholar Maurits Berger; I base my discus-

sion here partly upon his.28 T h e case is about a Christian man in a mixed

denominational marriage w h o opts to marry a second wife. His first wife

sues him, saying that this second marriage is null and void, and that it vio-

lates the principles of the public order (al-nizäm al-'aam), since Christian

laws d o not allow for polygamy. T h e husband, however, argued that he

had a right to polygamy since his mixed marriage is subject to the Shari'a,

which allows it. Thus to prohibit him from marrying another would itself

be a violation of the public order.

In reviewing the case, the High Court decided that in principle the hus-

band was correct. There was, however, a caveat. I will get to the caveat in

a moment. But in order to decide between them, the court was required

to determine just what is entailed in the public order. T h e court thus de-

fines the public order in a way that forcefully expresses the contradictions

embodied in it. It says,

[Public order] comprises the principles (qawa'id) that aim at realizing the public

interest (al-maslaha al-'amma) of a country, from a political, social as well as

economic perspective. These [principles] are related to the natural, material

and moral state of affairs (wad'a) of an organized society, and supersede the

interests of individuals. The concept of [public order] is based on a purely secu-

lar doctrine that is to be applied as a general doctrine (madhab 'amm) to which

society in its entirety can adhere and which must not be linked to any provision

of religious laws.

However, this does not exclude that [public order] is sometimes based on

a principle related to religious doctrine, in the case when such a doctrine has

become intimately linked with the legal and social order, deep-rooted in the

conscience of society (damir al-mujtama), in the sense that the general feelings

(1al-shu'ur al-'amma) are injured if it is not adhered to. [.. .] The definition (taq-

dir) [of public order] is characterized by objectivity, in accordance with what the

largest majority (aghlab a 'amm) of individuals in the community believes.29

9 4 CHAPTER TWO

The public order, as the court defines it, expresses a seemingly irresolv-

able tension. For on the one hand, the public order is to apply equally to

all citizens. O n the other, it expresses the sentiments and the values of the

majority, even if they are rooted in religion, so long as they have become

integral to the cohesiveness of society. The court sees Islamic Shari'a as

integral to society, being the belief of the majority, and which allows for

polygamy. Therefore, it was an allowance that had to be applied to all. The

husband was thus technically correct.

However, and this is the caveat, the court also says that exceptions to

the public order can be made. They can be made in those cases where

one's following a law of the public order would violate the essence of one's

religion, rendering him or her an apostate from it. So the court had to

decide whether monogamy was essential to Christianity, the violation of

which would render a Christian an apostate. A f t e r a review of theological

literature, it determined that monogamy is in fact essential to Christian-

ity. Thus it made an exception to the requirements (or in this case, al-

lowances) of the public order and prohibited the husband from marrying

another woman, rendering his second marriage null and void.

O n e of the central features of secular power outlined at the beginning

of this chapter was what I called the active principle of secularism, which

is the power of the state to decide what counts as essentially religious and

what scope it can have within social life. This case illustrates how the ac-

tive principle of secularism is rooted in the legal notion of the public order.

To make an exception to public order requirements, the court presumed

its authority to determine what is essential to Christianity. But more, it

decided that as the belief of the majority, the Shari'a was integral to the

cohesiveness of the society. Thus the court's right to determine what is

entailed in the public order also amounts to a right to decide and interpret

which are essential religious principles of society.

Berger discusses another case where the "question laid before the

court was whether Catholic spouses of different rites could use their rights

of divorce as stipulated under Egyptian Muslim family law,"30 even though

divorce is prohibited for Catholics. In this case, the court declared that

Shari'a is essential to the public order, and that an essential principle of

the Shari'a is the protection of the faiths of the People of the Book (Ahl

al-Kitäb), that is, Jews and Christians, which means exempting them from

following certain Shari'a provisions.31 They were thus exempt from Islamic

divorce provisions and prohibited from using them. So what was before

an exception to the public order here becomes in this latter decision a

THE INDETERMINACIES OF S E C U L A R POWER 95

substantive norm of the public order, based on the court's reading of the

Shari'a's essence.

These court cases show how the public order is a basis for the state's

legal power to define the essence of both Christianity and Islam in Egypt.

But they also highlight just how contradictory the concept of public order

is, as between the principles of equality and the values of the majority,

and between norm and exception. These contradictions, however, are not

specific to the Egyptian notion of public order. Importantly, they are also

features of the concept as defined within European and international law,

from which the Egyptian one was derived.

Established within Egyptian law by the end of the nineteenth century,

the public order is originally a European concept. Its complicated legal

history, which I can only touch upon here, is wrapped up with emerging

conceptions of the modern state, its sovereignty, and its regulatory powers.

The notion of public order took its distinctive form during the mid- to late

nineteenth century as a central part of the development of European pri-

vate international law. Private international law concerns relations among

private persons from different states, and thus deals primarily with com-

mercial and personal status law. It is a doctrine that guides whether and

how judges should apply foreign laws in their own states in cases between

private persons. Within this doctrine, public order is defined as those laws

and values that are essential to a state's social and legal cohesion and that

are usually held by the majority of its citizens.

A s an international law concept, public order is understood to consist

of the general principles that underlay liberal legality—such as procedural

fairness and formal legal equality. But as a concept bound to the state,

it is also understood to consist of the particular values and laws specific

states deem to be foundational to their own social and legal cohesion. The

public order is therefore seen as an intrinsically flexible concept whose

contents, because they change over time and between states, are forjudges

to decide. It is in this capacity that it acquires its importance for private

international law; it enables a state to invoke a "public order exception"

to reject foreign laws or judgments that it should normally honor, if it finds

them to be repugnant or threatening to its public order. Thus the public

order became a legal expression of the state's domestic sovereignty. This

was happening at a time, however, when states were vastly expanding their

regulatory capacities through a spate of social reform legislation and legal

codification.32 What could therefore count as part of the public order, and

thus the state's domestic sovereignty, correspondingly widened.

9 6 CHAPTER TWO

But the public order also became an important expression of state sov-

ereignty in public international law, during the time when sovereignty was

becoming the doctrinal foundation of statehood.33 It remains an important

expression of state sovereignty today. This is attested to by its inclusion in

all the fundamental international rights declarations and covenants that

together define contemporary liberal legality,34 as a basis for the suspen-

sion of the rights agreed upon in them. Note here that whether in public

or private international law, the public order, as an expression of state

sovereignty, is articulated as a basis for exceptions to legal norms. This fact

is crucial to the paradox that the public order represents.

The paradox of the public order arises not just from the tension it em-

bodies between formal legal equality and the substantive values of the

majority, that is, between competing norms. It is also because those sub-

stantive values have become identified with state sovereignty, which, in

turn, is legally expressed through exceptions. This results in a profound

confusion about whether a court, in invoking the public order, is promot-

ing norms or making exceptions to them. We saw this in the court cases

discussed above; in the polygamy case, the court made an exception to

public order, and the Shari'a norms seen to comprise it, to protect reli-

gious belief. But in the divorce case, the court saw the Shari'a principles

that comprise public order norms as including protections for Peoples of

the B o o k — J e w s and Christians—and saw itself as simply applying those

norms. It becomes unclear, then, whether the protection of religious belief

constitutes a norm of the public order or an exception to it, and whether it

is based in a secular principle of religious freedom, or in Islamic precepts

on protections for specific faiths.

This confusion between norm and exception is compounded by the fact

that due to the continual expansion of the state's regulatory capacities,

the public order has come to partake of a broader semantic and concep-

tual field. Thus it is often associated in judicial reasoning with the notion

of public interest, and sometimes with "public sentiment." In authorita-

tive legal documents, both national and international, it is always coupled

with the notion of morality, as in the phrase, "public order and morality."

These, in turn, are often explicitly linked with public health and national

security. And, as we will see through the case of Egypt, public order has

a constitutive historical relationship with the notion of family. In current

and historical legal practice, the distinctions between these concepts are

quite diffuse, frequently slipping into each other, even though in principle

they entail very different concerns. O n e consequence of this is that the

THE INDETERMINACIES OF S E C U L A R POWER 97

public order expands out of the judicial domain and into that of executive

authority, and through its links to national security becomes associated

with exceptional and emergency powers. It is interesting that for all the

recent theorizing on emergency states and the logic of the exception,35

little attention has yet been paid to the contradictions and indeterminacies

of this legal concept of the public order.

A n d while much has been written on it,36 its history and role in secular

power and decision has not been given much systematic attention. This is

even though religious freedoms are always subject to concerns of public

order, morals, family, health, and national security. This is even and espe-

cially within international law. Interestingly, international forums, such as

the European Court of Human Rights, have accorded greater latitude to

individual states in interpreting public order and morals for the purpose of

deciding religious freedoms, as opposed to political ones. A n d on the basis

of public order considerations, states have successfully argued in-principle

prohibitions on proselytizing, conversion, as well as the upholding of blas-

phemy laws for specific religions.37

What is important here is not just that public order considerations typi-

cally trump religious freedoms. It is that through the public order the state

enacts its sovereign authority to decide what counts as essentially religious

and what scope it can have in the social order, as we saw in the court cases

I described above. A n d this points to the fact that the active principle of

secularism is a principle of sovereign state power.

No doubt the notion of public order is not the only means by which the

active principle of secularism is exercised.38 It is, however, a common one,

employed by a very wide variety of states, including and especially the par-

adigm secular ones,39 and recognized within international law.40 It tersely

expresses some the basic contradictions of liberal thought and practice

and demonstrates how the active principle of secularism is connected to

the state's sovereign power.

But my attention to this concept of public order is also meant to illus-

trate how indeterminacy goes to the very heart of secular power and deci-

sion. To see that, let us return briefly to the polygamy case. A s a personal

status case, it is governed by religious law. Yet the court finds it necessary

to invoke the public order, which it defines as an essentially secular con-

cept. Af ter defining it as secular, however, the court states that it is com-

prised of essential Islamic values. Is the public order now an Islamic and

thus religious order? Furthermore, after determining that Islamic values

are essential to the public order, the court goes on to make an exception

98 CHAPTER T W O

to it so as to protect essential religious beliefs that contradict those values,

which is a characteristic secular practice and principle. Yet by so doing, it

restricts the rights of the defendant (the husband) whose beliefs it aims to

protect. Has the court thereby defended religious freedom or diminished

it? The indeterminacy goes to the very core of secularism's categories and

connected stakes.

This indeterminacy arises not just because the public order might con-

tain principles from religious traditions. It is also that the courts are always

involved in interpreting the principles of the public order, which colors

abstract notions of equality with the changing values and sentiments of

the majority of the state. Thus the rule of law, through its connection to

public order, becomes firmly attached to majority-minority relations even

though it is supposed to promote formal equality between citizens of the

state. A n d because of this, legal entanglements with theological questions

can also become attached to majority-minority relations.

A s a result, the courts' decisions can always be accused of perpetuating,

under the guise of neutrality, the moral, ethical, and political sensibilities

of the constituted majority and the specific conceptions of religion they

might reflect. Such claims have been made throughout the history of all

Western secular states. For example, one finds ongoing arguments about

the invisible perpetuation of essentially Christian protestant sensibilities

in the United States and Great Britain today.41 In France one finds argu-

ments about how specific historical experiences and sensibilities of religion

go into the definition of what counts as "conspicuous" religious dress in a

way that discriminates against French Muslims.42 A n d as political contes-

tations are increasingly enacted through law and legal categories, these

accusations have become all the more poignant today. But my point is not

to argue for their truth; it is rather to elucidate some of the conditions

whereby they arise and acquire their resonant political force. A n d one

central condition is the legal concept of the public order, which, in blurring

the difference between legal equality and majority values, between norm

and except ion—and thus, the restriction and protection of rights—relent-

lessly raises without resolving the question of religion and politics.

Family and State Sovereignty

How did the public order, this ostensibly secular and distinctively Eu-

ropean concept, become part of a religiously derived law in Egypt? The

answer takes us back to a set of wide-ranging procedural reforms of the

THE INDETERMINACIES OF S E C U L A R POWER 9 9

Shari'a courts that were instituted in 1897. The concept of public order

was first introduced through these reforms. A n d by a seemingly strange

coincidence, it was introduced in relation to the publicity of court hear-

ings, in a provision that explicitly requires public hearings except when the

court decides to hold them in secret due to considerations of public order

and morals.43 Before these reforms, publicity of trial hearings was not a

matter of explicit mention or concern in the Shari'a courts.44 Notably, the

wording of the 1897 provision parallels almost exactly the one of the cur-

rent procedural codes, except that the phrase "sanctity of family" is added

in the current codes. That phrase was added in the 1931 codifications of

the Shari'a courts. Nevertheless, it was in 1897 that the phrase "public

order and morals" first appears in the Shari'a courts, and that the publicity

of trial hearings first becomes an issue of explicit concern.

The novelty and significance of this provision can only be understood

within the broader context of the 1897 reforms. A s I mentioned earlier,

such reforms were aimed at establishing a liberal rule of law in Egypt, a

process that restructured the Shari'a courts and restricted their jurisdic-

tion to make space for the emerging national court system that eventually

absorbed and replaced them. A s part of this process, the state sought to

regulate Islamic practice by defining the essence of the Shari'a as com-

prised of " family" matters. The 1897 reforms, in particular, restricted

the Shari'a courts' jurisdiction to all and only those issues now defined as

family issues, exactly the ones governed by today's personal status law.45

Classical Shari'a treatises, however, had never featured a distinct category

of family, or even personal status, law. These reforms, then, helped carve

out a legal space for a new concept of family. This was happening, more-

over, at a time when a (largely European-derived) discourse of family as a

distinct unit of intimate, personal relationships had taken hold very widely

among Egyptian reformers and became pivotal to emerging nationalist

discourses.46

We thus have three specific reforms coming together. First, the Shari'a

courts are confined to a set of affairs that come to define a new, distinctive

domain of family. Second, family comes to be seen as essentially involv-

ing personal, intimate relations. This corresponds to the formula whereby

"religion" is placed within a "private" domain. But third, Shari'a court

proceedings are required to be public. A l l three reforms were set in mo-

tion and authorized by the modernizing Egyptian state as part of the es-

tablishment of a liberal rule of law. But they pulled in opposite directions:

toward publicity in court hearings on the one hand, and toward family as

an intimate space of secrecy on the other.

100 CHAPTER T W O

This was a contradiction, however, that the state empowered itself to

resolve, through its determination of what is constituted in the public

order. That is precisely the significance and novelty of the 1897 provision,

which gives the state, through the courts' interpretation of public order,

the power to decide what should and should not be heard publicly. In other

words, the 1897 provision, when viewed in the larger context in which it

occurs, can be seen as facilitating the emergence of a new legal distinc-

tion between public and private, one that the state was now responsible

for defining and upholding. More precisely, these reforms established and

brought into affinity a new set of concepts and affects—family, intimacy,

publicity, secrecy, and public order—through which the domains of public

and private could be mutually entailed and authorized by the state.

These concepts and affects have become only more tightly bound to

each other through subsequent legislation. Thus, as noted earlier, the

1931 Shari'a court codifications expanded the public order's semantic field

to include "the sanctity of family." A n d the constitution of 1956 under

Gamal A b d el-Nasser declared the family to be the foundation of society.

A s we have seen above, these were precisely the connected concepts and

sensibilities the courts used to authorize the necessary secrecy of personal

status hearings.

The 1897 reforms were thus a pivotal moment in the establishment of

state secular power in Egypt. They set in place the three features of secular

p o w e r — t h e active principle of secularism, a public/private distinction, and

a rule of law framework—that I described at the beginning of the chapter.

Not only did the reforms introduce the notion of public order for the first

time into religious law, but they also placed it at the center of the concepts

and affects through which the state defines a public /private distinction, and

to which religious practice must conform. However, the very conceptual

and affective affinities used to define this public/private distinction also

work to undermine its integrity. This is because religion has become iden-

tified with family, and family has been placed at the foundation of the pub-

lic order. The principles of public order therefore blur into the principles

of religion. A t the center of secular power and indeterminacy in Egypt,

then, lies a historical relationship between family and the state.

The connections between religion, family, and public order that enable

this indeterminacy aren't exclusive to Egypt. We find them also in the his-

tory of the paradigm secular states of Europe, where they were crucial

to developing conceptions and practices of sovereignty. In France, whose

law was the basis for Egypt's, the rise of "family" as a special domain of

intimacy was historically tied up with the notion of public order as part

•

THE INDETERMINACIES OF SECULAR POWER IOI

of a process whereby the state acquired and demonstrated its sovereign

authority over its territory and against the Church.47 They were thus con-

nections that the state maintained as necessary for its own unity. But they

also take hold more broadly across Europe during the very period that

public order becomes the focus of systematic elaboration within domes-

tic and international law.48 The regulation of family came to be seen as

the quintessential expression of domestic sovereignty at a time when sov-

ereignty became the doctrinal foundation of statehood internationally.49

A n d within international law today, family is still seen as the nucleus of

society and foundational to the public order. Hence, article 16:3 of the

Universal Declaration of Human Rights states, "The family is the natural

and fundamental group unit of society and is entitled to protection by

society and the State."

It is a well known—though never banal—fact that public and private

domains possess multiple, related, overlapping, and often shifting mean-

ings, and that the distinctions between them are rarely stable. What I am

highlighting, however, is the historical emergence of a particular set of

conceptual and affective relationships through which they continue to be

both mutually entailed and undermined, where a domain of intimacy has

become attached to the public order as part of the development of a rule of

law and the consolidation of the state's sovereign power through it. These

relationships have been crucial to the way that secular power has worked.

Egypt only brings into bold relief a contradictory setup that is charac-

teristic of the paradigmatic secular states more generally: on the one hand,

"religion" as the state defines it is placed in a private space, separated off

from the state. O n the other, family is also placed in this private space, but

the state continually sees the need to regulate and authorize it, as part of

its sovereign power to maintain and regulate the public order. The his-

torical relationship between family and state sovereignty thus becomes a

source of continual entanglements between religion and politics.

This is not simply because of the intrusion of public power into pri-

vate life. It is also that principles deemed proper to a private domain can

emerge as practices of public power, blurring the difference between them.

This is exactly what happened with hisba, to which we now return.

Hisba and the Indeterminacy of Secular Power

The ethnography and history I have recounted show how the Shari'a in

Egypt, under the law and through legal reform, has become significantly

102 CHAPTER TWO

shaped by liberal legal concepts and precepts. In this sense, it has become

"l iberal ized"—that is, largely restricted to a private domain of family,

imbued with distinctively liberal sensibilities about privacy, and highly

circumscribed from state policy making. A l l of this conforms to liberal

secular expectations of religion.

But this brings us back to where we started, with the hisba case against

Nasr A b u Zayd, which seems to contradict these very expectations. A

university professor of Arabic and Islamic studies, a professed Muslim,

A b u Zayd was nevertheless, through the use of hisba, declared an apostate

by the court, his marriage forcibly dissolved. The state, instead of grant-

ing him amnesty or legally abolishing hisba, enacted legislation reserving

its use solely for itself. We are therefore led to ask: how can liberalized

Shari'a and the hisba decision arise out of the same legal framework? Was

hisba just an anomaly? If so, why did the state subsequently reserve its

usage solely for itself?

A s should be clear now from our discussion, hisba and liberalized

Shari'a are not as incompatible as they might first seem. The perception

that they are, I submit, arises from the view that accepts secularism's own

criteria for its success or failure, a view contested throughout this chap-

ter. But if we see secularism in terms of the historical structures of power

and instability described above, and particularly how secular power and

decision arises out of the legal principle of the public order, then we get a

different picture.

Because, importantly, both the essentially intimate nature of family as

the core of the Shari'a and the legitimacy of hisba litigation were justified

by considerations of the public order. The public order that imbued the

Shari'a under the law with a private sensibility and authorized the protec-

tion of family secrecy also transformed the religious practice of hisba into

a wide-ranging, anxiety-inducing, public power. But more importantly,

hisba, in the way it was articulated in the court judgments, represented

a power to decide what was essentially religious and what scope it could

have in society. That is, hisba, as presented in the courts, was not so differ-

ent from the active principle of secularism. The state's reserving of hisba

to itself and out of the hands of private citizens could therefore be seen

as a move of secular power, toward maintaining and extending the state's

sovereign authority to decide on the essence of religion and of politics.

In reserving the power to do this, is Egypt so different from, say France,

which recently invoked public order considerations to decide which

symbols were essentially religious and where and how they should be

THE INDETERMINACIES OF S E C U L A R POWER 103

displayed?50 O r even its consistent past practice of compelling religious

divorce actions in some cases for couples who had undergone a civil di-

vorce?51 Or is it so different from England, which has successfully resorted

to notions of public sentiment to uphold Christian blasphemy laws?52

One might argue that indeed it is. The hisba case seems to represent

something more threatening than the prohibition of Christmas creches or

the Ten Commandments in public places. The French ban on the hijab, it

might also be argued, is only for public schools, with French Muslim girls

having the option of attending private ones. Even the more recent ban on

the burqa, one might add, is as highly specific as it is contested, affecting a

very small number of people. Similarly with the recent ban on minarets in

Switzerland, which, while certainly an expression of unwarranted fear of

Islam, nevertheless leaves intact Muslims' rights to worship and articulate

their beliefs. Hisba, on the other hand, implies a censorship that leaves

absolutely no room for one to articulate his or her thoughts or beliefs, and

thus represents the very sort of intolerance that secularism was meant to

end. In the case of A b u Zayd, it completely wrecked his life, both private

and public. Hisba, it could be said, undermines the principles of tolerance

and religious freedom at their foundation.

A s recent work has shown, however, the modern doctrines of tolerance

and religious freedom are more complicated than they might at first sight

seem.53 Here I present only a few brief remarks about them, to clarify

something about hisba.

In its modern variety, tolerance is first and foremost a principle of state

governance, rooted in a concern for the collective. A s such the idiom of

tolerance is importantly different from, though related to, the idiom of

individual liberty and equality. Tolerance offers equal rights under the law

for those who desist from practices considered threatening to the collec-

tive. The idea that that which can be tolerated must be nonthreatening is

significantly different from the medieval concept of tolerantia, where it was

precisely that which was considered evil and to a certain extent dangerous

that was subject to toleration.54 When the contemporary concept of toler-

ance becomes connected to matters of law and litigation, as it always ines-

capably does, it becomes framed in terms of legal questions and concepts

of public order. This means that within the modern doctrine, tolerance has

its limit at that which is considered threatening to the public order. What

might count as a threat may change over time and differ between polities,

but the structure of the doctrine remains the same. Not only does this bring

us back to the paradoxes of the public order, as to its tensions between

104 C H A P T E R T W O

equality and majority, norm and exception, and its links with family, but

it also raises the question of the power to decide what the public order

consists in and what threatens it. O n e could say that this power to decide

is logically prior to tolerance, with tolerance dependent upon it. But it is

just such a power that hisba had come to represent through the courts. Not

only does this make hisba compatible with tolerance, but also the kind of

power foundational to it.

One finds a similar situation with respect to the doctrine of religious

freedom. It is founded on two related principles. The first is the distinc-

tion between religious belief and practice, and the second is the distinc-

tion between those practices considered harmful to the social order and

those that are not. These two connected principles are, in turn, dependent

upon two connected powers. The first is the power to decide what counts

as essentially religious and what scope it can have in social l i fe—which is

the active principle of secularism. A n d the second is the power to decide

what the public order consists in and what is harmful to it, as in the case of

tolerance. But again, these are precisely the connected powers that hisba,

as articulated through the courts and legislation, had come to represent.

I should emphasize that my point is neither to justify the use of hisba in

the case of A b u Zayd nor to criticize the modern doctrines of tolerance and

religious freedom. It is only to show how they are paradoxically connected

with the form of power that hisba had come to represent, and how they

are therefore both dependent upon and compatible with it. Tolerance and

religious freedom are among the central stakes of the question of where

to draw the line between religion and politics. But their connection with

the active principle of secularism and the public order introduces an inde-

terminacy at their doctrinal foundations. To put it more precisely: hisba,

having become an expression of public order and the active principle of

secularism, represents the power by which the aspirations of secularism's

political concepts—religious freedom and to lerance—are attained, but

it undermines the democratic sensibility and attitudes of open generosity

normally thought to come with them.

Is this then to say that hisba, as now reserved by the state and rooted

in the public order, is now a secular principle? Or does it remain a reli-

gious one? My answer is that this is precisely the indeterminacy of secular

power, which relentlessly entangles us in such questions and conflicts of re-

ligion and politics, even as it consolidates and extends the state's sovereign

power to decide them. Earlier in the chapter I spoke of how, within liberal

thought, religion's proper p l a c e — t h e private domain—was connected to

T H E I N D E T E R M I N A C I E S OF S E C U L A R POWER 1 0 5

its status as nonknowledge. What the case of hisba suggests is that secular-

ism itself is a form of power that generates an intractable nonknowledge:

of the very categories, distinctions, and sensibilities upon which it relies.

Conclusion

Is Egypt a secular or a religious state? I have argued here that this is nei-

ther an answerable nor a false question. Rather, it expresses a question

at the heart of secularity itself; namely, where to draw the line between

religion and politics so as to secure fundamental liberal rights and free-

doms. This question, in turn, is raised incessantly by the very conditions

of secular power, and especially through the indeterminacies of the public

order, whereby religion and politics continually blur into each other. T h e

question of Egypt's secularity or religiosity is therefore an expression of

secularism's characteristic tensions and its distinctive modes of power, sen-

sibility, and instability.

Secularism, supposed to separate religion from politics, hopelessly

blurs them; ideally a principle of peace, it fosters political-religious con-

flict instead. Law offers no way out, being a condition of this intractabil-

ity. Should we conclude that secularism undermines itself? To make such

a conclusion would be to accept secularism's own criteria for its failure

or success, to collapse its normative categories into the analytic ones we

would use to understand what it is, and does. This is just what I have tried

to avoid by approaching secularism as a problem-space—in terms of its

historical ensemble of questions and stakes, the processes and practices

of power used to variously answer them, and the conditions that raise and

entrench them within social life. What this approach has helped clarify is

that secularism is less a principle of peace than a historical practice of state

sovereignty, and thus is an expression of its constitutive indeterminacies

and anxieties. The indeterminacies of secularism should not therefore be

seen as undermining it; on the contrary, they tend, as in the case of hisba,

to further consolidate and extend the state's sovereign power of decision

over social life. We should see the indeterminacies of secularism as inte-

gral to its workings, and the state sovereign power that it secures.

In casting secularism as a problem-space, constituted by a historical

ensemble of questions and stakes and characterized by continual contesta-

tion, I argue that secularism must be crucially understood as a question-

ing power, as a modality of power that operates through the activity of

i o 6 C H A P T E R TWO

questioning and contestation that it animates. But this, in turn, raises a

number of questions. How, for example, does this questioning power, with

all the doubt, skepticism, and suspicion it generates, maintain and expand

itself within social life? What role does modern legal power, embodied as

"a rule of law," play in this expansion? A n d what happens to the authority

of those traditions and practices designated as religious when they become

subsumed under a modern rule of law and entangled in the question of

religion and politics? These are the questions to which we now turn.

C H A P T E R T H R E E

A Paradox of Islamic Authority in Modern Egypt

In the previous chapter I have argued that secularism's power lies not

only in the norms it imposes but also in the questions it raises. Secular-

ism is therefore a questioning power, involved in a process of continual

questioning facilitated by the precariousness of its own normative catego-

ries. It is common to think about power in terms of establishing norms and

their authority. Conversely, we tend to see the activity of questioning as a

mode of resisting normative power and authority. But how does one think

about a mode of power that works through the activity of questioning that

it animates? More specifically, how does this power work through the dis-

tinctively modern legal conditions upon which secularism as a problem-

space so crucially relies? These are the questions I pursue in the remaining

chapters of this book. In this chapter and the two that follow, I discuss

some of the paradoxes of Islamic authority I encountered in Egypt. In the

final chapter, I consider how the emergency state, and the now near global

dominance of the "national security" paradigm, have increasingly enabled

the rise of religiously rooted and resonant languages of justice that aim to

facilitate the ostensibly secular legal languages they are directed against.

I begin with some observations on the paradoxical authority of the rule

of law more generally. That paradoxical authority is key to understanding

secularism as a questioning power.

On the Rule of Law's Paradoxical Authority

Once, when teaching a session on law in an undergraduate course, I asked

my students what they thought the notion of the rule of law was all about,

i o 8 C H A P T E R T H R E E

that is, what its point was. T o which they responded cynically: the point

of law is to k e e p the rich and powerful , rich and powerful. I challenged

them: what about that old lady that brings McDonalds down to its knees

in court? That's just the exception, they replied, and anyway it's just a way

the powerful keep us deluded into thinking that law is fair, just, or that

it offers us genuine protection. A n n o y e d by their collective certitude, I

retorted that this didn't seem to work so well, since it obviously hadn't

fooled anyone in this class. A melee ensued, at the end of which I offhand-

edly remarked that maybe we should just rid ourselves of law altogether,

and find something else. A t this the class erupted once again. How could

you get rid of law—they scoffed. That would be anarchy! H o w would we

live? I noted my surprise to them: but I thought you all said that law wasn't

fair anyway! It's not, they replied, but what else do we havel T h e n they

challenged me: what alternatives do you have? Since I didn't have any, I

quickly changed the subject.

Irritated as I was with their smug cynicism toward law, I was even more

surprised by the collective anxiety they displayed at the thought of getting

rid of it. Yet this particular form of suspicion and anxiety, I came to realize,

was also found in more considered theoretical and philosophical discus-

sions of law. Consider, for example, the following passage by historian and

social theorist Martin Jay:

The unresolvable paradox of the relationship between law and justice, as the

Slovenian philosopher Jelica Sumic-Riha has recently argued, may, in fact, re-

quire a certain measure of blindness. "We know," she writes, "that law as such

is not and cannot be just. However, if we accept that and behave according to

this knowledge, we will have lost not only justice, but also law. Law is namely

conceived as an instance that appeals to justice which means that a law that does

not refer to justice simply is not a law. It is therefore in some way necessary to

blind ourselves to this knowledge. In Derrida's terms: even if justice cannot be

reduced to a rule-governed activity we must respect the rules. We must respect

them because in the very undecidability of justice on the one hand and the

groundlessness of law on the other lies the danger that the right to do justice

can be usurped by bad legislators.'"

This passage is noteworthy not only because it states clearly and succinctly

the paradoxical combination of the senses of suspicion, necessary legiti-

macy, and imaginative limit about the law my students expressed, but also

because it is of one philosophical thinker w h o quotes another w h o quotes

A PARADOX OF ISLAMIC AUTHORITY IN MODERN E G Y P T 1 0 9

yet another, all of whom are very different from each other. In other words,

the untrained intuitions of a diverse group of undergraduate students

resonate almost exactly with the legal-philosophical pronouncements of

practiced theorists who partake of a variety of theoretical traditions. Both

project the same image of law and both suffer the same conflicted anxi-

eties and imaginative limits regarding it. What kind of power is it that

makes the rule of law at once a source of such distrust and yet a limit to

our imaginative possibilities? The sentiments of my students, far from be-

ing an isolated phenomenon, intuit something important about the nature

of the rule of law.2

The notion of the rule of law partly constitutes and defines what is

modern. A key element and first step in any modernization project is the

implementation of a rule of law, and Egypt is no exception. Nevertheless,

the notion of a rule of law is not a transparent one. It represents a loose

yet historically distinctive configuration of concepts, presuppositions, ex-

pectations, affects, institutions, and practices that includes particular legal

traditions and the ends to which the modern state puts them. How has

the Egyptian state's implementation of a rule of law structured its official

practices of the Shari'al More specifically, how has the rule of law con-

figured the authority of these practices, particularly with respect to the

paradoxical forms of distrust, reliance, and imaginative limit that seem

endemic to it? The difficulty of these questions arises, in part, from the

fact that the diverse elements that make up "the rule of law" and the ways

they hang together are deeply entrenched in liberal ways of thinking and

therefore hard to uncover.

This chapter, and the two that follow it, are devoted to exploring these

questions. It is worth, however, briefly distinguishing them from other

seemingly similar questions that have been commonly discussed within

legal theory. Thus the questions I pursue are not about the indeterminacy

of law, even though the issue of legal indeterminacy is deeply involved in

them. That is, my point is not to identify yet another form of legal inde-

terminacy. Still less is it to explain legal indeterminacy through logical and

pragmatic paradoxes that happen to be features of all human practices.

The exploration of such paradoxes, such as the empty signifier, the im-

possibility of self-presence, the infinite interpretability that arises out of

the fundamental vagueness of language, and the forms of illegibility that

arise out of the yawning gap between rules and their application, have cer-

tainly taught us much about legal indeterminacy.3 However, because these

paradoxes are claimed features of all human practice, they cannot be said

119 C H A P T E R T H R E E

to explain what is peculiar to legal practice. Neither do they necessarily

generate the same sorts of conflicted anxieties within everyday life that

evidently attend the law. That everyday life is suffused with the potential

for indeterminacy does not therefore mean that it is continuously lived in

anxious uncertainty. Only under specific historical conditions do the po-

tential uncertainties of a particular practice become a source of perceived

paradox, a focus of collective anxiety, and an object of systematic elabo-

ration in relation to power.4 My questions are less about indeterminacy

and more about how collective anxieties over the uncertainties of specific

practices become entrenched within social life. I ask: what are the concep-

tual, affective, and institutional conditions that sustain this paradoxical

combination of distrust and legitimacy, whereby one can say in the same

breath that law as a rule does not bring justice and that justice is gener-

ally inconceivable without law? My purpose in exploring this question is

to detail some of the historically specific (as opposed to general logical or

pragmatic) features that shape this paradox. A n d then to ask how these

features have configured the authority of Shari'a practices that are under

the rule of law.

In what follows I explore these questions by extending the compara-

tive exercise begun in the previous chapter, between the personal status

courts and the Fatwa Council of Al-Azhar. Since at the beginning of my

fieldwork I had trouble accessing the personal status courts, I spent much

time observing the Fatwa Council. When I eventually obtained access to

these courts, I continued to observe the council. This enabled me to do

a kind of comparative study between two different spaces, both of them

state institutions, within which decisions claimed to be derived from the

Shari'a are made and elaborated.

Such a comparative study promises to be especially revealing with re-

spect to the questions I pursue. That is because the fatwa and the court

were once historically intertwined in Egypt and seen to be conceptually

related within Islamic tradition in general. Thus stipulations requiring

Shari'a court judges to consult with designated muftis on hard cases were

common throughout the 1800s, and fatwas of these designated muftis

were binding on the courts. Fatwas brought to the court by litigants for

their cases also typically had to be taken into consideration by Shari'a

judges. The Shari'a court codes of 1880 attached a newly created office of

the Mufti of State to the Shari'a courts and required that state muftis be

consulted on hard cases at all levels of the court system. The State Mufti,

precursor to the current office of Mufti of the Republic, had the authority

to make the final decision in cases of doubt.

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 120

Only relatively recently were the fatwa and the court separated into

exclusive spaces of their own, through a gradual process of legal reform

aimed at bringing the Shari'a under the rule of law. The wide-ranging lib-

eral reform of the Shari'a courts, enacted in 1897, was the first major step

in this eventual separation. While the reform still required muftis to be

seated with judges at all levels of the Shari'a courts, it no longer required

their consultation in cases of doubt. Neither was the court required to

consider fatwas submitted by the litigants themselves. It was around this

time (1895) that the Dar al-Ifta—the first fatwa council—was established,

headed by the State Mufti. Despite the establishment of the Dar al-Ifta,

however, the influence of the fatwa on the courts continued to decline.

The Shari'a Court Code of 1931 repealed all previous laws concerning

muftis and divested them from all offices and any kind of authority in the

courts. Just a few years later, in 1935, the Fatwa Council of al-Azhar was

established under the Ministry of Religious Endowments in response to

a perceived need, indicated by a growing number of requests, for fatwas.

The Fatwa Council of A l - A z h a r and the Dar al-Ifta have since existed as

parallel institutions, with similar and overlapping functions. The Fatwa

Council has continued to expand its range and influence, with a branch

now existing in every governorate of Egypt. It is common for any sheikh

who has headed the Dar al-Ifta as Mufti of the Republic to eventually

head the Azhari Fatwa Council in the position of Sheikh al-Azhar. A l l of

these sheikhs, until recently, had also previously served as judges in the

Shari'a courts, before they were abolished in 1955.5 Sheikh Tantawi, who

served as Sheikh al-Azhar and head of the Azhar i Fatwa Council from

1996 to 2010, was the first such sheikh who had not previously worked in

the Shari'a courts. With him, the connections between judge and mufti,

fatwas and judgments, were finally, completely, severed. A t this time, it is

highly unlikely that a fatwa would actually influence a judgment, or even

legislation, and it is certainly inconceivable that a court judgment would

influence the content of a fatwa.

While histories of the fatwa and of the courts have been written, the

story of their separation into different spaces of action and sensibility re-

mains to be detailed. What is important for our purposes, however, is that

a difference between the spaces of the fatwa and the court was specifically

enacted as part of the process of liberal legal reform and the implementa-

tion of the rule of law. O n the one hand, the space of the courts has been

invested with all of those features specific to a rule of law. On the other,

it was divested of those features deemed irrelevant to the rule of law. The

space of the council thus comes to represent those features specifically

1 1 2 C H A P T E R T H R E E

divested from the courts as irrelevant to the rule of law. A study of the

differences between the courts and the council therefore enables one to

highlight and map out some of the entrenched elements of the rule of

law and to discern how they structure the ways that the Shari'a is under-

stood and practiced within the legal framework. Such a comparison will

not only help highlight the peculiar forms of authority displayed by the

rule of law but also will enrich our understandings of authority in general.

The poverty of our concepts of authority is an underlying theme of these

chapters.

In what follows I focus on the paradoxical differences in authority that

I saw between the personal status courts and Fatwa Council of Al-Azhar.

The fatwas of the council seemed to exercise great authority, while the

judgments of the courts were greeted with enormous suspicion. Both

the Fatwa Council and the personal status courts derive their legitimacy

from their claim to be based in the Shari'a. Most Egyptians would see the

Shari'a basis of their personal status law as absolutely indispensable to it.

Yet when a judgment that is evidently based in the Shari'a comes down

from the court, few would obey it without the court's coercion. How could

one at the same time acknowledge and even insist upon the indispensabil-

ity of the Shari'a to the courts and yet not feel bound to those court deci-

sions based upon it? How is it that one can say in the same breath that the

Shari'a is indispensible to the legitimacy of the law, but that the law can

never legitimately bring the Shari'a? This contradictory combination of

reliance and distrust about the Shari'a under personal status law is directly

parallel to the attitudes about justice and law that I highlighted above.

A n d the fact that it is found with the courts and not the Fatwa Council in-

dicates that it is a phenomenon that pertains to the rule of law. Clarifying

the differences between the courts and the council will therefore help shed

light upon the form of entrenchment of the rule of law and show forth dif-

ferent forms of authority.

My argument, in brief, is that the structures that compose the rule of

law produce an ongoing space of exception within it, one that opens into

a domain fraught with politics, anxiety, and incessant legislation. T w o cru-

cial, related elements work to produce this ongoing exception. The first

is the incessant vigilance, characteristic of liberal traditions, against all

potential abuses of power. The second is the sensibility of suspicion that

comes along with this vigilance and is an important dimension of judicial

practice. Suspicion, it could be said, embodies the logic of this exception

and is an integral feature of the rule of law's paradoxical authority.

A PARADOX OF ISLAMIC AUTHORITY IN MODERN E G Y P T 1 1 3

Let me turn, then, to some observations about suspicion and authority

in the personal status courts and the Fatwa Council of Al-Azhar.

Suspicion and Authority in the Personal Status Courts and the Fatwa Council

The courts of personal status are divided into two types. The first is called

nafs (self) and the second is called mal (wealth). The former deals with

cases of marriage and divorce, the legal duties of spouses, child custody

and visitation rights, and inheritance. The latter deals largely with the fi-

nancial guardianship of orphaned children and those who, for reasons of

mental disability or insanity, cannot conduct their own financial affairs.

Here the judges make decisions over who has rights to make financial

choices for such people and to use their inheritance money for their wel-

fare. A l l requests for use of inherited money go to the judges, who decide

if they are legitimate. In such cases, a guardian leaves a documentary trail

of requests. A n d over time judges get to know some of the clients, and

know something of their history of requests and character. Even when the

judges change, the court officials who keep the documentary records of

requests often do not, so the judge can partly rely on their opinions. More

than this, cases in the mal court are often raised pro se, that is, without the

presence of a lawyer, so one can often see a direct interaction between

the client and the judge. I was able to observe a large number of cases

from these particular courts. This has been particularly helpful for com-

parative purposes, because it allows one to directly compare the dynamics

of interaction between, respectively, judges and litigants, and muftis and

questioners. What I will note here are some differences in the dynamics

of interaction found in the spaces of the mal courts and the Fatwa Council

respectively.

Courtroom interactions in the mal courts were permeated with suspi-

cion. Judges were very often skeptical about whether the items for which

money was requested were really necessary, or if they were, whether the

costs indicated in the request were really the correct amounts. Their sus-

picion, however, also extended into the financial guardian's background,

personal and familial, as part of evaluating the validity of the request, and

it lingered despite the long, well-documented history of requests left by

him or her. Judicial suspicion even extended to the court officials who

manage the case documents.

1 1 4 C H A P T E R T H R E E

A t first sight such suspicion is not entirely surprising. A f t e r all, the

court is making decisions on behalf of often quite young children over how

their inheritance money should be spent. It is responsible for the welfare

of those children. Moreover, Egypt is both an economically impoverished

country and a highly class- and status-conscious society; this fosters suspi-

cion about the possibility that guardians who are less well off might abuse

these moneys. So the suspicion of the judges seems entirely warranted

here, and hence, unsurprising.

This atmosphere of heavy suspicion, however, was not restricted to

these specific courts. I observed it in the courts more generally, no matter

what the type of jurisdiction—personal status, criminal, civil, or adminis-

trative. That is, there was a specifically legal dimension to it. Yet again, at

first sight one might not be surprised by this and attribute such a sensibil-

ity to more general concerns over the potential for legal abuse and the

desire to minimize it. Such concerns are characteristic of the rule of law

and underlay common expectations for an independent judiciary, writ-

ten legal codes, well-defined court procedures, public hearings, published

judgments, and a well-specified appellate structure with judicial review at

its apex. But beyond these well-known facts and expectations, important

as they are, there may be more to this suspicion to think about, as the

following comparison between the personal status court and the Fatwa

Council shows.

Consider the following case that arose before the mal courts of an

Egyptian Muslim man who married an American Christian woman and

lived in the United States. He had two children, born in the United States,

by the time he passed away. He had some property in Egypt, so there was

the matter of securing and being able to spend that portion of wealth that

his children had inherited. Under the Hanafi school of the Shari'a officially

followed in Egypt, a Christian cannot inherit from a Muslim, neither can

one appoint a Christian person as guardian over the funds of Muslim or-

phaned children. So the uncle of the children, from the father's side, went

before the court to request that they authorize an account for the children,

and authorize him to make financial requests on their behalf.

The judges were immediately skeptical of his request. They didn't

know, they told him, whether the children were Muslims or Christians, as

they had a Christian mother and had lived in the United States. Luckily,

the uncle had brought the children with him; they told the judges that they

were indeed Muslim. Yet the judges were still skeptical. They required

that the children have their Muslim identities ascertained—that is, they

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 1 1 5

had to have a document stating the religious identity of each child. State-

ments of religious identity usually appear on Egyptian birth certificates or

Egyptian identity cards. The children, having been born and lived in the

United States, had neither of these. So they would have to declare their

Islam in front of certain government officials, have that declaration docu-

mented, and then present the court with these documents. The head judge

sent them away to do just that. After they left, the judges began to discuss

the case among themselves, all talking at the same time. One of them, in a

cynical tone of voice, raised the possibility that these children could have

been raised Christian, and are only now declaring that they are Muslim

just to receive some inheritance money. The head judge later picked up

on the same point, whereupon the discussion came to an uneasy lull; a

lull, in fact, that made for an abrupt ending of the discussion, as the judges

suddenly called for the next set of litigants. It seemed that the judges saw

no way to resolve the case. If the father had died when his children were

Christian, then they could not inherit, even if they had converted to Islam

afterward.

This case illustrates the atmosphere of suspicion I found in the courts.

Lawyers I spoke with about the case declared the judges' skepticism mis-

placed, but typical. They told me that the children of a Muslim man are

legally presumed to be Muslims unless proven otherwise. Moreover, the

accounting for and apportioning of inheritance is done in the nafs courts.

That the uncle had appeared before the mal courts to open an account on

behalf of his nephews meant that the nafs courts had already apportioned

them a share. A n d that meant that the nafs courts had already presumed

them to be Muslim. But the nafs and the mal courts are relatively indepen-

dent of each other, so the judges did not have to consider that presumption

binding. In this case they did not. But here, the suspicion of the judges

went far beyond any concern over the welfare of the children. While it

was partly a suspicion about religious identity, the judges' demands were

paradoxical: all those children would have to do to document their re-

ligious identity is make the same declaration of their religion that they

made at the courts, in front of those government officials authorized to

document it (which include, incidentally, officials in the Fatwa Council of

Al-Azhar) . Yet it was also a suspicion about the ways that the law could be

manipulated, and in this instance it worked to undermine the case, and the

possibilities for its resolution. The lawyers I spoke with were certain that

the case would eventually be resolved but were equally sure that it would

take a lot of effort on the uncle's part.

125 C H A P T E R T H R E E

The incident I will describe in the Fatwa Council is quite different from

the case in the mal court. Yet it might illustrate something important about

the suspicion I described above.

A married couple, along with their child and two of the wife's brothers,

entered the council. The wife claimed that her husband had pronounced

divorce upon her for the third and thus final time, meaning that they could

not be reconciled. According to the Shari'a a woman can be divorced by

her husband and then reconciled to him twice, so long as the reconciliation

is done before a certain waiting period; a third pronouncement separates

the two irrevocably. So seriously is the pronouncement of divorce taken

within the Shari'a that even if the pronouncement is made in jest, or a

burst of passionate anger, it is considered to have the same force as one

that is made deliberately. There are very few conditions that would other-

wise nullify such a pronouncement, and intention (or the lack of it) is not

one of them. Consequently, muftis are very concerned to elicit the precise

words used in the claimed pronouncement, the number of times it was

made, the space of time between each pronouncement, the mental state of

the man when he made it, and other details of the situation.

Now the husband denied, in this case, having made the pronounce-

ment. Then he hesitated and said that he didn't remember making such a

pronouncement, although he might have. His brothers-in-law then chimed

in, saying that he had indeed made the pronouncement, and they had seen

and heard him. The mufti seemed perplexed at the argument that en-

sued, with the wife and brothers accusing the husband of having made the

pronouncement and him alternately denying and being uncertain about

whether he did so.

Growing more perplexed, the mufti asked the husband a seemingly

odd question: whether or not he was drunk at the time of the alleged pro-

nouncement. Strangely enough, though drunkenness is forbidden in Islam,

it is one of the conditions that void a pronouncement of divorce. Again,

the man hesitated. His wife peered at him intensely and growled at him,

"You were not drunk." Her brothers immediately agreed, saying that he

was not drunk. Before another argument could erupt, the mufti raised his

hand and stated that there was no one that could testify to the pronounce-

ment of divorce, or to a person's drunkenness in such a case, except the

person himself. It didn't matter if there were a hundred witnesses denying

this person's testimony, he said. If a person lied about it, then this was a

matter between himself and God. This was not the first time I had seen a

mufti make these statements.6

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 1 1 7

The mufti asked the husband once more if he was drunk at the time of

the alleged pronouncement. The husband sat in silence for what seemed

like an extended period of time, his eyes darting back and forth from the

mufti to his brothers-in-law and then his wife. Finally, he answered yes, he

was. The mufti declared that this nullified any pronouncement of divorce,

and, against the wishes of the wife, and to the evident displeasure of her

brothers, the couple was still married.7

Thus while in the court one found a situation where suspicion ran so

high that it rendered what would otherwise be a straightforward case

seemingly irresolvable, in the Fatwa Council there was an instance where

witnesses denied a person's testimony, where even that person himself hes-

itated in a way that might have been a cause for suspicion, but that suspi-

cion did not arise. In contrast to the courts, I found very little generalized

suspicion in the Fatwa Council, even about issues of religious identity and

conversion. This was even though it is well known that fatwas can be eas-

ily manipulated (where people can keep asking different muftis until they

get an answer that suits them), and muftis do get angry when they find out

about the rare instances of such manipulation that do occur.

Interestingly enough, however, such manipulation, rarely done as it is,

is done for reasons other than might be expected. That is, if people ask

different muftis the same question it is often not because they are seeking

advantage, but because they are uncomfortable with a past decision that

is to their advantage. For example, there was the case of a man who had

pronounced divorce upon his wife for the third time. A s mentioned above,

the third pronouncement of divorce precludes any possibility of reconcili-

ation, unless the former wife consummates a marriage with another man

and then gets divorced from him. There are exceptions, however. One of

those is if the wife was in a state of "impurity" at the time of the pro-

nouncement. This is usually understood to mean that she is menstruating.

In this case, the man said to the mufti that he had pronounced divorce

upon her, but that she was in a state of impurity (makanitsh ala-tahaara).

The mufti asked him if she was menstruating at the time, and he answered

no, but that she was in a mixed crowd of mostly men at the time he pro-

nounced it. The mufti said that that doesn't put her in a state of impurity,

and that he could no longer reconcile his wife to him. The man's brother

was with him. H e said that they had talked to another mufti, who had

said that this counted as being in a state of impurity. Upon hearing this,

the mufti became annoyed: "why did you come to me then? You had got-

ten a fatwa earlier, why didn't you go with it?" They responded that they

127 CHAPTER T H R E E

were unsure about the previous fatwa. "Now look at what you've done,"

he said, "you have to go with mine now, and it's against you." The mufti

then told them to get out; after they left he turned to me to comment on

how stupid they were. In this case, and there were others like it, people

seek out other muftis not because of perceived personal advantage but

because of a personal discomfort about how correct a fatwa is. Moreover,

even though they are not binding in any way, the fatwas are, from what I

have seen, taken immensely seriously, even if a certain decision is highly

disadvantageous to the questioners' affairs.

That people take the fatwas they receive seriously goes together with

the fact that they rarely manipulate them in the way mentioned above.

Some of the incidents I recount in the chapter on the council demonstrate

this, but there are many more. One was a court case involving Khaled, in

which his immediate and extended family was embroiled, over inherited

land that had been monopolized by one set of family members. A f t e r a

drawn-out case, when it looked like his side of the family was to finally win

its inherited share, his aunt, who had initiated the litigation on their be-

half, announced some shocking news. She claimed that his grandmother,

who had passed away several years ago, had sold her the entire portion

of land that he and the rest of his family stood to win in the case. To back

up her claim, she produced a deed, which displayed her and her mother's

(Khaled's grandmother's) signatures, along with the signature of a lawyer

(as witness) known to the family. Instead of leaving Khaled and the rest

of the family bereft, however, his aunt offered to apportion this land to

them in their approximate inherited shares according to the Shari'a, but in

exchange for greater financial support for her litigation efforts.

The family reluctantly acknowledged that maybe she deserved more

financial support for her efforts on their behalf. But they noted that her

proposed apportionment did not include shares for the grandchildren

of Khaled's grandmother's previous marr iage—that is, the children of

the half-sisters and half-brothers of his mother. To have included them,

however, would have reduced his aunt's share of the land too much, and

she refused to do this. Moreover, these half-brothers and half-sisters had

since passed away. This led to the question of whether these grandchil-

dren stood to inherit, since their parents had passed away even before

Khaled's grandmother did. Since the family knew of my work in the Fatwa

Council, they asked me to consult a mufti. The mufti told me that these

grandchildren had the right to inherit as if they had inherited their por-

tion of the land from their parents. O n that fatwa, the family refused to

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 1 1 9

accept Khaled's aunt's offer, even though this meant foregoing any share

in the land that they had long worked to acquire. What is interesting about

this incident is that Khaled and his family could have gone to a lawyer

for advice on this question, since inheritance law in Egypt is based on

the Shari'a. There were also a number of lawyers whom they knew well

and could have approached on this matter. But they did not and decided

instead to go on the fatwa of a mufti whom they did not know. This is just

one example of how seriously fatwas were taken by those who sought and

received them.

Another instance is of a young married couple, still in college, who

wanted to be reconciled after a divorce. The mufti, after finding out that

they married without the knowledge of the wife's parents, refused to recon-

cile them, stating categorically that their divorce was irreconcilable. They

begged the mufti, with increasing desperation and tears, to find them a

way to reconcile, but the mufti resolutely refused, saying that they could

not be together again—implying that their original marriage was illegiti-

mate. The couple stood from the chairs slowly, both crying, and walked

out of the council, at more than an arm's length apart and looking away

from each other as if ashamed, so different from when they had walked

into the council together almost shoulder to shoulder. It is hard to think

from their reactions that they did not take this fatwa seriously. The same

could be said from the reactions of the people who came to the council

generally, as subsequent ethnography will show.

The authority of these everyday fatwas was quite different from the

suspicion cast upon the judgments of the personal status courts, which

are also based on the Shari'a, and which, though supposed to be binding,

people generally follow only if forced to. This becomes a major problem

for the courts when there arise enforcement loopholes. For example, the

personal status law reforms of the year 2000 eliminated jail sentences in

cases in which husbands refused to pay their wives their monthly sup-

port (nafaqa). Such short jail sentences were used by judges to compel

husbands into payment.8 Under the new law, judgments rendered for the

wives enabled them to get payments from a special bank fund instead; the

bank would then charge the husband. But that fund had not been success-

fully set up since the law was passed.9 In the meantime, husbands could not

be legally coerced into resuming payments. Lawyers explained to me that

this created a tremendous compliance problem, leaving so many married

women without financial support that the old personal status provision

had to be reintroduced.10 The fatwas of the Council, on the other hand,

1 2 0 C H A P T E R T H R E E

have n o identifiable institutionalized enforcement mechanisms, yet are

taken very seriously by those w h o receive them.

These incidents, taken together, highlight a number of seemingly par-

adoxical differences. T h e judgments of the personal status courts arise

out of a set of well-specified procedures, are subject to requirements of

publicity and review, and are e m b e d d e d within a well-defined appellate

structure. Despite such guarantees, there is a generalized concern about

legal manipulation, abuse, and corruption, and courtroom interactions are

shot through with suspicion. T h o u g h judgments are binding, and despite

the existence of enforcement mechanisms to ensure this, people typically

only follow them if they have to, as evidenced by the widespread compli-

ance problems that arise out of enforcement loopholes. T h e fatwas of the

council, on the other hand, though they are routinized in certain ways, are

not subject to any well-specified procedures, not subject to requirements

of publicity and review, and neither is there any well-defined hierarchy of

fatwa. But despite these facts, despite this in-principle manipulability of

the fatwa, one finds no real concern about it, very little suspicion, and even

though there are no identifiable institutionalized mechanisms of enforce-

ment, people take fatwas they ask for very seriously.

T h e Fatwa Counci l is, of course, not a law court, and should not be mis-

taken for one. But both the personal status courts and the Fatwa Council

claim to base their decisions on the principles and rulings of the Shari'a\

both derive their legitimacy f rom that claim. We can therefore ask two

questions: why is there so much suspicion in the former, despite all the

safeguards against manipulation, while there is so little in the latter, de-

spite that there are none? A n d why does the former have so little appar-

ent authority, despite enforcement mechanisms, while the latter have so

much, despite their seeming lack of them?

In drawing these contrasts, I do not mean to make absolute claims but

rather to highlight relative differences. This distinction between absolute

and relative claims is an important one, and it is the basis of the power of

the comparative method. A s the comparative legal theorist and historian

James Q . Whitman notes, it is just this ability

to identify relative differences that gives comparative law its special value. No

absolute descriptive claim about any legal system is ever true. Human society

is much too complex for that; there are always exceptions. If we make the ab-

solute claim, for example, that American law is committed to the values of the

free market, we are saying something false: there are many exceptions. On the

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 1 2 1

other hand, if we claim that American law is more committed to the values of

the free market than are most comparable legal systems, we are saying some-

thing that is both true and extremely important. As this example suggests, rela-

tive claims can be a bit more revealing than absolute ones . . . where we find

these relative differences, we can detect the intermittent strength of some real,

if subterranean differences in fundamental values that are widely shared."

In line with Whitman, the claims I am making are relative, not absolute.

Hence, I do not say that the personal status courts are always sites of over-

whelming suspicion, neither d o I say that court judgments would never be

obeyed without enforcement mechanisms the law puts in place. Similarly,

I am not saying that there is never any suspicion in the Fatwa Counci l

(indeed I pointed out some instances of it in the previous chapter), and

neither am I claiming that the fatwas of the council are always obeyed

and never manipulated. But what I am saying is that in comparison to

the Fatwa Counci l , the personal status courts display a pronounced and

relentless suspicion; that in comparison to the personal status courts, the

Fatwa Council displays surprisingly little concern over manipulation and

enforcement. A n d that in comparison to the judgments of the courts, peo-

ple receive the fatwas of the council with far less cynicism and far more

seriousness. A l t h o u g h these are relative differences, they are nevertheless

very real ones, and the strength of the comparative method brings out

what might otherwise be taken for granted. If it wasn't for my experiences

in the Fatwa Council , I might have never discerned the pronounced suspi-

cion of the courts, taking it for granted instead.

There is another virtue to this comparative exercise. It is the way it can

push us to revise our concepts. The comparisons I have staged here strike

against some of the deeper distinctions and understandings that structure

much contemporary social theorizing. Thus, for example, it strikes against

the distinction between high theory and commonplace intui t ion—as when

I highlight the convergence between the considered pronouncements of

social theorists and the un-thought-out intuitions of diverse undergradu-

ate students about the law. It also goes against presupposed distinctions

between the West and the non-West, as when I highlight some striking

parallels in legal sensibility between a Western and a non-Western mi-

lieu. Att i tudes among both theorists and laypersons in the West about

the possibility of justice being delivered by law are structured similarly

to attitudes of regular Egyptians and legal practitioners about the pos-

sibilities of Shari'a justice being delivered by personal status law. That this

122 C H A P T E R T H R E E

attitude is not found with respect to the Fatwa Council's fatwas indicates

that it pertains to modern law, a distinctively modern legal sensibility that

cuts across Western and non-Western milieus. Lastly, these comparisons

challenge received and strongly held understandings of the opportunistic

dispositions of human act ion—as when I discuss the relative differences

in manipulation, and the concerns over it, between the Fatwa Council and

the personal status courts.

However, it is precisely such distinctions and understandings that to-

gether help form the grounds of the secular—which spans the divide be-

tween high theory and commonplace intuition, West and non-West, and

tilts toward certain understandings of typical human behavior. Thus, for

example, the idea that what people are really after in pursuing religious

claims (i.e., multiple fatwas) are their own worldly interests purveys a

skepticism that resonates strongly with a range of secular perspectives.

Also, within current discussions of secularism there is a strong tendency

to draw a fundamental divide between Western and non-Western secular-

isms.12 But while there are no doubt varieties of secularism, the key to un-

derstanding secular power may rest more in what they share than in how

they differ. To capture what they share, however, might require us to revise

our concepts. The paradoxical differences in authority and suspicion that

I have drawn out here between the Fatwa Council and the personal sta-

tus courts may help us do that. In unsettling some of the distinctions and

understandings that help naturalize the secular, they make space for an

investigation of secular power.

Law's Valence

A n d yet one might object that the stated differences are not paradoxical

at all and are easily explained. O n e might, for example, be inclined to

explain them by noting that law, as manifested in the courts, involves ad-

versaries. The stories of the adversaries often differ, and contradict. The

courts have to find the truth about what is being said. Hence, suspicion

about litigant and witness testimony. This is even in cases with only one

litigant, in which case the judge takes the role of adversary. One might

further argue that since law can be enforced, and that judgments have ma-

terial consequences, it is all the more important to find the truth in a case.

That is why courts have such elaborate procedures of proof and evidence.

The court's search for t ruth—even if that truth is only a construction of its

A PARADOX OF ISLAMIC AUTHORITY IN M O D E R N EGYPT 123

proof procedures—and the potential material consequences of judgment,

naturally create this suspicion. The fatwa, on the other hand, does not

really involve adversaries, and even when it does, the aim is often toward

some kind of reconciliation. Since it does not involve adversaries, there is

less of a concern about the truth of the claims made. The concern, rather,

is to find points of correct doctrine. In other words, with the courts there

is always the question of who is right, while with the fatwa there is only the

question of what is right. That is why there is less suspicion in the council.

The fatwa, moreover, cannot be enforced, and so does not necessarily have

material consequences. Neither can the Fatwa Council compel anyone to

appear before it, as it only responds to requests made by the populace.

The very fact that people willingly seek a fatwa implies that they are will-

ing, or more likely, to accept the decision they ask for. But people often

come to the courts unwillingly, compelled by court order or the potential

material consequences of an unfavorable judgment. So at the outset they

are inclined to reject any decision against them. The coercive character

of the court, one might argue, trumps any of the claimed legitimacy of its

judgments on the basis of their derivation from the Shari'a.

It might also be objected that the judges of the personal status courts

are not Azhari-trained sheikhs, while the muftis of the Fatwa Council are.

O n top of that, the mufti directly accesses, or claims to directly access, clas-

sical Shari'a sources and texts to formulate his fatwas; the judge's access,

by contrast, is mediated because he refers to a legal code that is derived,

or claimed to be derived, from the classical Shari'a sources and texts. Thus

the mufti is seen to have direct access to and therefore knowledge of the

Islamic tradition, while the modern legal setting of the judge renders his

relation to that tradition indirect, his knowledge of it therefore question-

able. Such differences in the setting, in the training of the judge and the

mufti, and in the general features of their respective practices, one might

argue, go a long way in explaining differences in authority between fatwa

and court judgment.

There are aspects of this proposed explanation that are certainly plau-

sible. Yet it is precisely this plausibility that is misleading. A n d there are

other aspects that are less than accurate; thus it is not right to frame the

fatwa mainly in terms of finding right doctrine. That view arises from a

specific problematic that has characterized and constrained the scholarly

literature on the fatwa, an issue that I will discuss in the chapter on the

Fatwa Council. However, the main problem with this proposed explanation

is not that it is necessarily wrong. It is rather that even in those instances

124 C H A P T E R T H R E E

where it is right, we still wouldn't know why it was right. The explanation

depends upon and projects a commonplace image of law that is itself beset

by the very paradoxes we wish to better understand. It presumes precisely

what we need to explore. That is why I say that it is misleading in its very

plausibility; it diverts us away from the social and historical conditions that

generate these paradoxes.

To illustrate this, let us begin with the notion that judicial suspicion is

a natural outcome of law's fact-finding character, as expressed in its often

elaborate procedures of evidence. Such a notion is indeed part of liberal

law's dominant self-description. That is, it is what, for example, contem-

porary judges in liberal legal institutions describe and understand them-

selves to be engaged in when they practice their profession.13 That is why

the notion is so plausible. Moreover, that this is an assumption of their

practice might in fact be a source of judicial suspicion. But is this a natural

outcome, or rather one that has been historically fashioned?

The legal historical work of James Q. Whitman would seem to demon-

strate the latter.14 He has shown that the elaborate procedures of proof that

were developed in medieval European law after the decline of the ordeals

in the twelfth century had relatively little to do with a concern over fact-

finding. Rather, they were developed out of a concern to protect judges

and jurors from the spiritual pollution they faced in pronouncing guilt and

punishment in criminal trials. In most cases, Whitman notes, it was well

known when an accused was guilty, but this knowledge was not enough

to absolve judges or jurors from the moral pollution they might suffer in

pronouncing a guilty verdict. The question for them was less the actual

guilt or innocence of the accused, the truth of which they often knew, but

their moral authority to pronounce judgment. Judging imperiled the souls

of judges and jurors, and the elaborate procedures of proof were devel-

oped to provide a shield against the use of their "conscience," which also

meant personal knowledge, in pronouncing guilt and punishment. These

complicated procedures of proof were not about "fact-finding" but "moral

comfort,"1 5 a way to provide judges and juries with moral authority to

judge a person guilty even in those cases in which they already knew he or

she was guilty. The procedures were a way of reinforcing the maxim that it

was the law that killed, and not the judges or jurors, when they condemned

a person to a blood punishment, such as mutilation or death. Whitman

points out that it is only in the last two centuries that concerns over "moral

comfort" began to wane, while an emphasis on "fact-finding" began to

emerge and become increasingly pronounced. Similarly, historian Andrea

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 125

Frisch has shown how judicial witnessing in medieval France was not pri-

marily directed toward fact-finding but was rather an act of solidarity that

gave testament to the social and ethical standing of the parties concerned.

It was only during the early modern period in France that judicial witness-

ing started to become part of a procedure aimed at ascertaining the facts

under dispute.16 Despite the long existence of complex proof procedures

within European legal systems, the sensibility of suspicion now attached to

them is of recent origin. To assume, then, that the courts naturally exhibit

a level of suspicion because they are involved in fact-finding is to obscure

the historically crafted and relatively recent character of this sensibility.

We can equally question the presumed antithesis between coercion and

legal authority found in the proposed explanation. Is it simply because

law has a coercive character that people tend to question its authority?

O r is there something about the law of the modern state that marks its

coercive character as a potential source of illegitimacy? Again, we can

turn to historical evidence that shows how law can be both coercive and

authoritative.17 One directly relevant example concerns the fatwa and the

Shari'a courts of old in Egypt. A s I mentioned above, it was only a century

and a half ago that they inhabited the same space of action and sensibil-

ity. However, through modernizing state reforms, the fatwa was gradu-

ally divested from the space of the Shari'a courts, and the courts were

increasingly invested with those elements of procedure typically identified

with a modern rule of law, which included a pronounced ability to coerce

obedience to its judgments.18 But this did not mean that they lost their

authority. They retained a measure of it, even up to the mid-twentieth

century, until they were absorbed into the national court system and be-

came known as the personal status courts. Shari'a court judgments in the

1930s could even change the content of fatwas and establish precedents

for subsequent ones. Consider, for example, the land case of Khaled told a

little earlier, and the question of inheritance that it raised. Sometime after

I had gotten the fatwa about it, I was with another mufti who happened

to be asked a very similar question, that is, about whether a child stands

to inherit from her grandparents in the instance when they have outlived

her own parents. Similar to the fatwa I had gotten, the mufti replied that

the child indeed stands to inherit, but added that this had not been so until

the 1930s, when the Shari'a courts made a judgment to that effect, out of

mercy to orphans (rahmatan lil-aytäm).19 Since then, he said, fatwas have

followed this judgment. Today, it is inconceivable that a personal status

court judgment could influence the content of a fatwa. But if so, it is not

126 C H A P T E R T H R E E

simply because the law is coercive while the fatwa is not. There are, as this

historical example instances, more complex reasons for these differences,

having to do with the character of modern legal legitimacy.

A f t e r all, the question of legality and legitimacy within the modern

state is one that legal theorists and practitioners have long grappled with,

and it remains a central riddle of contemporary legal thought and practice.

On the one hand, the legacy of positivism within modern conceptions of

law renders them seemingly unable to distinguish between norms and law

except by defining the latter in terms of its coercive character.20 O n the

other hand, authority is defined as a form of willing obedience to another

that is irreducible to either coercion or persuasion.21 But if law is distin-

guished mainly in terms of its coercive character and authority is defined

as willing obedience irreducible to coercion, then the concept of legal au-

thority becomes something of a contradiction in terms. A n d if law and

authority cannot be reconciled, then upon what does law's legitimacy rest?

This difficulty in reconciling law with authority makes legal legitimacy a

central puzzle in modern legal thought and practice and marks the coer-

cive character of modern state law as a potential source of illegitimacy.22

This puzzle of legal authority, however, may be but an instance of a

more general problem, remarked upon by political philosopher Hannah

Arendt:23 a growing inability in modern times to distinguish coercion from

authority, making the very idea of authority increasingly paradoxical.

Underlying this more general problem, in turn, is a distinctive set of as-

sumptions about the self that has come to prevail in contemporary liberal

thought. A m o n g them are the familiar ideal that the true self is the free

self; an understanding of freedom as the pursuit and realization of one's

interests and pleasures; and the belief that a free self is one that follows

its own will only, and that wants to follow only its own will.24 Under such

assumptions not only does the notion of willing obedience to another ap-

pear paradoxical (one can only either obey oneself, or else be coerced by

another), but also coercion and free choice are positioned as irreconcil-

able opposites. Modern liberals therefore find it difficult to conceive how a

self, by being forced to obey, can come eventually to truly want to obey25 (a

difficulty compounded by their acknowledgement that some disciplining is

necessary to cultivate selves desirous of liberal freedoms).26

These assumptions about the self are accompanied by a distinctive

stance, and a corresponding sensibility, that are characteristic of liberal

thought. The stance can be described as an ongoing vigilance against

abuses of power; the corresponding sensibility, a suspicion of claims to

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 1 2 7

power. Within liberal thought it is felt that suspicion and authority are

opposites: a claim that lacks authority is one that is naturally greeted with

suspicion. Authority, as an expression of power, needs to be constructed,

crafted, and molded. Suspicion of a claim to, or performance of, authority

arises when that work of crafting and molding is not successfully com-

pleted. Implied in this understanding is that suspicion is a natural, default

condition, the obverse of authority as a constructed one. The vigilance

against power that characterizes liberalism tends to naturalize a suspicious

disposition.

A l l of this creates intractable difficulties for liberal legal thinking on

the question of legal legitimacy. For it tends to construe law as subse-

quent to an a priori free self and therefore a suspect mode of domination

external to it. Rarely considered is the possibility that the vigilance and

suspicion against power so characteristic of liberal thought and sensibility

are actually shaped by, and through, law. In other words, such vigilance

and suspicion are not natural, default conditions, but are instead histori-

cally cultivated sensibilities whose cultivation depends integrally on mod-

ern legal processes. In this case, law would not be an external mode of

domination, but intrinsic to the cultivation of a liberal sense of self, the

dispositions and sensibilities associated with it.27 Indeed, it may be that

modern law's power works through these historically cultivated modes of

suspicion. A s Richard Sennett has shown, one can be just as tightly bound

to something through suspicion of it as by a conviction in its legitimacy.28

I will pursue this point in greater detail in the next chapter. But the larger

point here is that the intimate relations between authority and the self's

constituted sensibilities cannot be simply assumed; they must be explored,

conceptually, historically, and ethnographically. A n d that is why one can-

not simply say that the fatwa is more authoritative than the judgment be-

cause the latter is involved in coercion, while the former is not. Even if

it is true that the law's coercion weakens its authority vis-ä-vis the fatwa,

one would still have to investigate how this came to be and how it remains

the case.

What about the claim that the mufti is Azhari-trained, while the judge

is not, and that the mufti directly accesses the Islamic tradition, while the

judge does so only indirectly through a state-enacted code? Even this is

more complicated than it first seems. For one thing, a number of the judges

who preside over the personal status courts might have been trained in

Al-Azhar's Faculty of Shari'a and Law. For another, A l -Azhar has long

been under state control and has a curriculum authorized by the state,

1 2 8 C H A P T E R T H R E E

and this is also a time when the state's Islamic credentials are viewed with

great suspicion. So it is no guarantee that training at A l -Azhar is going to

confer authority. Indeed, that very training might render one's authority

questionable. Furthermore, the idea that muftis directly access the Islamic

tradition, while judges do not because of a code, comes close to saying

that the Shari'a has a traditional essence to which legal codif icat ion—a

mark of modern law—wil l always be alien. Yet this idea of a traditional

essence fundamentally alien to modern innovation is hard to sustain, both

conceptually and historically.

Neither does such an opposition between modern (legal) and tradi-

tional authority help to explain, in even a cursory way, the relative dif-

ferences in authority under discussion here. The personal status law, for

example, displays many of the crucial characteristics of what we call mod-

ern legal authority: it is codified, formally procedural with an appellate

structure, and part of a court system possessed of a high level of judicial

independence and a fair level of consistency in its judgments—all of which

must be publicly accessible. O n the other hand, fatwas show few of the

characteristics that we would call traditional authority, such as doctrinal

consistency. Given the wide diversity of contemporary fatwas, one could

even say that the law shows greater doctrinal consistency, or at least pre-

dictability, than the fatwa. Yet suspicion of personal status judgments runs

high relative to the fatwas of the council. Moreover, both the personal

status courts and the Fatwa Council are institutions under the state and

products of modernizing reforms.29 A l l of this confounds any simple dis-

tinctions or oppositions between modern and traditional authority and

immeasurably complicates them both.

These, then, are some of the reasons why I find the proposed explana-

tion inadequate to the differences in authority between fatwas and per-

sonal status judgments. Even in those instances where it might be right, it

remains to be explored why. It therefore presumes precisely what we need

to explore, and belies the very complexity of the concepts and distinctions

it presupposes—regarding modernity and tradition, authority, suspicion

and coercion, as well as the self, its sensibilities, and how they have been

historically constituted. The problem with the proposed explanation is

that it depends upon and projects a commonplace image of liberal law

that is not neutral but that also posits the grounds of its own legitimacy.

But that is unhelpful, if it is precisely the paradoxes of that legitimacy one

wants to analyze. Put another way, the problem with the proposed expla-

nation is that it presumes the standpoint of liberal law's valence, the very

thing I wanted to investigate in the first place.

A PARADOX OF ISLAMIC AUTHORITY IN MODERN EGYPT 129

With this the paradoxical differences in authority between the personal

status courts and the Fatwa Council of A l - A z h a r become even more pro-

nounced. How then to proceed? We can begin by considering more care-

fully the forms that suspicion takes in the courts and through legislation,

and its broader consequences for the authority of the rule of law as well as

those religious concepts and practices that have been subsumed under it.

That is the focus of the next chapter.

CHAPTER FOUR

Law's Suspicion

T h e rise and consolidation of the modern rule of law should not be un-

derstood solely in terms of the monopoly of violence by the modern state

or simply as the pervasive dominance of a distinctively legal-bureaucratic

rationality. It must also be understood as the emergence of a new form

of organized suspicion that continues to suffuse social life. Whi le there is

some literature that documents the emergence of a diffuse and increas-

ingly organized suspicion, especially toward the end of the nineteenth and

beginning of the twentieth centuries,1 very little has been written about

this in relation to the rule of law. T h e dearth of literature on this subject

is a testament to how deeply presupposed this sensibility of suspicion is,

and how deeply it plays into commonplace understandings of the nature of

law, some of which I described in the previous chapter. A s a result, there

is no systematic study of the forms that this suspicion takes through and

within the law and its consequences upon the various registers of legal

practice.

O n e theorist w h o has remarked on modern law's suspicion is Talal

A s a d . H e writes that

suspicion (like doubt), occupies the space between law and its application. In

that sense, all judicial and policing systems of the modern state presuppose or-

ganized suspicion, incorporate margins of uncertainty. Suspicion is like an ani-

mal, "aroused" in the subject, it covers an object (a representation or a person)

that comes "under" it. Suspicion seeks to penetrate a mask to the unpleasant

reality behind it: the unauthorized creation of a document, a hidden motive to

commit a crime, a latent disease, a terrorist in disguise. Suspicion initiates and

is an integral part of an investigation, and the investigation ends when suspicion

is put to rest—when a "reasonable" person comes to a conclusion, one way or

another, on probable evidence. Suspicion opposes and undermines trust.2

L A W ' S SUSPICION 131

I do not think Asad's statement should be understood to mean that the

suspicion of the law exists solely in an active m o d e — t h a t is, as initiating

an investigation and being put to rest when it is over. It is also part of the

overall disposition of the law, which receives claims with skepticism and

distrust and constantly demands verification and explanation—as we saw

in some of the examples of the previous chapter. In a sense, then, the law's

suspicion is never at rest. Also, I do not think Asad should be understood

as saying that this constant suspicion necessarily arises from the gap be-

tween law and its application. That is, it is not the logical gap that in itself

generates this suspicion. Whether or not the gap between a law and its ap-

plication is a source of anxiety or concern depends on historical, and not

purely logical, conditions. A n d in the event that it is a cause of anxiety, the

particular form that anxiety will take is not in itself dictated by the gap but

by historical conditions as well. A s I noted in the previous chapter, anxi-

eties over the proper application of the law during the European medieval

period had not to do with the facts of the case or suspicion of the ac-

cused, but whether one imperiled one's soul in condemning even a clearly

guilty person to severe punishment. With modern law, this anxiety takes

the form of a suspicion concerned with fact-finding, the epistemic status

of litigants' claims, and the potential for legal procedural manipulation,

and it is crucially connected with the attitude of vigilance against power

and its abuse that is historically distinctive of liberalism. It is that attitude

of vigilance against power that transforms the gap between law and its ap-

plication into a constant problem in need of solution, and whose solution

typically takes the form of a continual and increasing surveillance.

But to see how this is so, we must return to the conceptual and affective

affinities that I detailed in chapter 2. A t their center was the ambiguous and

contradictory concept of public order, and it was through this concept that

both the active principle of secular power was exercised and the public/

private distinctions to which religion had to conform were authorized.

A s I will argue here, these conceptual and affective affinities must also

be understood as part of a distinctive structure of suspicion, whose mo-

dalities profoundly shape the forms that religious, Islamic, authority can

take.

Notes on Suspicion, Publicity, and the Scene of Judging

I start with the simple fact that it is a general requirement that court

proceedings be public. It will be remembered that the concept of public

1 3 2 C H A P T E R THREE

order was first introduced into the law of the Shari'a courts through this

publicity requirement, a requirement that became generalized within

Egyptian law with the reception of Western legal traditions. Although

the origin and development of the publicity requirement in Western legal

traditions remains obscure, there now seems to be two commonly held

reasons why court proceedings should be public. The first is that public

scrutiny constrains the actions of judges and checks any potential arbi-

trariness. The second is that it inspires public confidence in the judiciary.

The notion of public implied in these two reasons is one that embodies

well-known ideals, and in particular, those of neutrality and impartial-

ity in the service of legal equality. The idea is thus, on the one hand, to

put public pressure on the judge to ensure that he conforms to the ideals

of neutrality and impartiality, and on the other, to assure the public that

those ideals are in fact being followed.

That judges are indeed under the public eye was made clear to me

through a discussion with a recently appointed judge of the Supreme Con-

stitutional Court. The judge, previously a highly politically active lawyer,

explained to me that all political activities had to stop immediately upon

the appointment, lest there be any accusation of bias. Political statements

could no longer be issued. This also implied a distancing from political

acquaintances. The scrutiny was so great, said the judge, that all meetings

with any acquaintances that were previously held at home were now held

in the court office. This was due, in part, to the controversial nature of

the appointment, but it was also, I was told, a general issue faced by all

judges, whose behavior had to conform to the values of neutrality and

equality in what this judge called "the judicial tradition" (taqlid al-taqädi).

The judge's words highlight an important point: that it is a sensibility of

suspicion that ties the ideal of publicity together with those of neutrality,

impartiality, and legal equality.

The public, however, is not simply a domain of ideals; it is also a struc-

tured space of sensibilities in which those ideals are embodied and enacted

in particular ways. How then, are the ideals of neutrality, impartiality, and

legal equality interpreted, embodied, and enacted by judges in the courts,

as well as those who see and are subject to the judges in action? By under-

standing the dilemmas that arise in the enactment of these ideals, we can

begin to get a sense of the ways and means of suspicion in the courts.

In the personal status mal court that I regularly attended, the judge

was a fearsome figure, direct, loud, impatient, and often dismissive. His

power and control in the court was utterly visceral. O n e could feel the

fear and anxiety that one often saw on the faces of clients. The judge, in

L A W ' S SUSPICION 133

most instances, would not outright humiliate clients, but a sense of humili-

ation could eventually be seen as their backs bent slightly and their necks

stretched forward into a position of pleading as they stated their cases,

where they were often interrupted, admonished, or dismissed in piercing

tones for not having the right papers or not expressing themselves clearly.

E v e n lawyers would flush with anger at their treatment at the hands of the

judge, as he often ignored them and went straight to the client to extract

the plea or argument directly from him or her. Neither was court staff im-

mune to his severity.

In between cases, be fore clients entered the courtroom, the j u d g e

would have a smile on his face, but this would gradually transition over

into a grimace as the clients came in and started pleading their cases. A t

first I thought this was a persona he donned, just for show, but as I at-

tended this court over time, I became less and less able to distinguish his

smile from his grimace. I eventually found myself, for no reason I could

fully explain, terrified of this judge.

Judges in other courts performed similarly, but with different degrees

of tone and sternness. This was how judges interpreted their requirement

to be neutral and impartial toward their clients. In the mal court, the judge

would often call down court officials to sort out the necessary paperwork

in front of him because he didn't trust them to do their job. H e would often

work one or two hours overtime. I would stay the entire time; afterward

the judge would give m e a long stare. T h e n he would declare: " I am a

bit harsh (qasi), isn't this s o ? " I would respond with an awkward smile;

he would stare a while more, and then assert: "this is how the work gets

finished." There was little difference in the comportment of the judges

between the personal status courts and other courts; they acted similarly

even though, as I discussed in the previous chapter, personal status cases

are typically held in secret. T h e harsh, stern manner of the judges was

one of the ways they embodied the public virtues of neutrality and im-

partiality. Their style, though distasteful, is not entirely peculiar, and fits

entirely within the well-known Western legal tropes of blind justice, swift

justice, impersonal justice, and strict justice. It is aimed at achieving the

legal equality deemed necessary for justice.

A s a d , in the same discussion of modern legal practice quoted earlier,

notes that the

principle of legal equality doesn't depend on attitudes of "concern and respect."

Nor, conversely, does the expression of concern presuppose the principle of

legal equality. On the contrary, the strict application of the principle requires

1 3 4 C H A P T E R THREE

that citizens be treated with absolute indifference. For only indifference enables

citizens to be counted as equivalents.3

I found this notion of indifference explicitly embodied in Egyptian judi-

cial practices, through a demeanor of distance, reserve, and even disdain.

Thus when I would arrive to court before the session began, I would wait

outside the chamber in the corridor, along with the rest of the litigants.

T h e judges would have to pass through our midst to reach the chamber;

they would brush by us without deigning a single look, with an unfocused,

disinterested, even stonelike expression on their faces that conveyed an

impassable distance between them and us. T h e head judge would never

acknowledge my presence even when I was standing right in front of the

chamber's door. Only after they had entered the court chamber would

they invite me in, through the hägib (court usher); once inside they would

greet me with cordial smiles and nods of acknowledgment.

T h e demeanor of distance also came up in an interesting way during

my discussions with KhalTl, a highly experienced lawyer w h o had become

a friend during my fieldwork.4 KhalTl had just begun working as an official

of the general prosecutor (al-niyäba al-'amma) in a governorate in south-

ern Egypt . T h e office of the general prosecutor, similar to the parquet in

France and based upon that institution, is an integral part of the judiciary

that combines a number of important judicial functions along with po-

lice investigative powers. These investigative powers are extremely broad,

since the general prosecutor is charged with the duty of protecting the

public interest and has the right to intervene in cases that pertain to the

public order. Here is a description of the place and power of the general

prosecutor, or niyäba:

There is no counterpart in the common law systems of England and the United

States, although parallels are often noted. These officials of the magistry not

only prepare and present the charges against the accused to the full session of

the criminal court, but they have various functions in line with their prescribed

duty to "protect the public interest" which, especially in Egypt, amounts to an

almost unfettered authority to conduct investigations They also have gen-

eral investigative powers concerning public morals and welfare and the capacity

to institute proceedings based on their findings in such investigations There

are certain police and quasi-police functionaries designated as . . . "judicial po-

lice" to whom the niyaba may issue instructions and over whom they are given

authority and from whom they may ask assistance. It is upon these individuals

L A W ' S SUSPICION 135

that the niyaba personnel are dependent for any kind of coercive measures to

bring witnesses, arrest suspects, carry out search and seizure.

The personnel of the niyaba are often translated as "attorney general," "dis-

trict attorney," or "prosecuting attorney," but these are misappellations. The

niyaba neither represents the government as a party litigant nor is its function,

strictly speaking, to "prosecute" cases in the sense that prosecution is conceived

of in America or England. The niyaba is the place where incidents are investi-

gated, providing the background of evidence, and serving as a supporting organ

which seeks to learn the "truth" and to incriminate for the sake of having a case.

They search for all evidence—of innocence as well as guilt. They have the au-

thority to suspend investigations and "file" cases, as well as to recommend that

a case be brought to trial. The niyaba is considered "indivisible."5

A s this description makes clear, the office of the general prosecutor is a

concrete, institutional, and enormously influential embodiment of judicial

suspicion in Egypt . If the comportment of the judge presents a scene of

suspicion confined within the space of the courts, then the comportment

of the general prosecutor, because of his broad investigative powers, pro-

jects judicial suspicion outward into the fabric of social life. .

However, although the general prosecutor is considered to be part of

the judiciary branch, KhalTl explained to m e that there has been much

debate as to whether it is really part of the executive branch of govern-

ment. This is because all officials of the general prosecutor are represen-

tatives of the general prosecutor himself and must obey his orders. T h e

general prosecutor, in turn, must obey the orders of the minister of justice,

w h o is part of the executive branch. Since KhalTl explained this to me,

an amendment to the law of the general prosecution has diminished the

unlimited control of the minister of justice over the general prosecution,

vesting him with only administrative control. In practice, however, the

general prosecutor remains under the powerful influence of the minister

of justice.6 T h e general prosecutor's office therefore does not display the

level of independence that judges have and see as necessary to the work

of the judiciary. T h e general prosecutor thus stands ambiguously between

judiciary and executive p o w e r — a n important point to which I will return

later in the chapter. Despite this ambiguity, an appointment to its off ice

is typically a first step toward the position of judge, to which KhalTl very

much aspired.

H e described to me how he had to conform his behavior to his new

post. In particular, he described how he felt compelled to keep a distance

1 3 6 C H A P T E R THREE

away from those around him, anybody who could potentially become a

complainant. He said that if he saw two people in his office, one of whom

he knew well, he would nevertheless refrain from acknowledging such ac-

quaintance because that would give the impression of bias. It was very

important, he said, to maintain the appearance of impartiality (hiädy),

and he interpreted this in terms of an enacted display of distance and dis-

interestedness.7 Of course, the general prosecutor is under no requirement

to perform his investigative duties in public, but judges and litigants will

scrutinize the manner and the results of his investigation in the public

forum of the courts. It was therefore crucial to maintain a demeanor of

impartiality.

The gap between the enacted displays of distance in the name of neu-

trality and impartiality, and the reality of acquaintance or knowledge,

produces—when combined with judicial suspicion—an interesting set of

problems. KhalTl spoke to me of his job's many challenges, and of the in-

sight required to discern the truth in a situation out of the complex set of

motives and testimonies that arose from the densely interwoven relation-

ships within the community in which he worked. Not everybody had the

sharpness and capability of Khalll, and anyway, he was just new to the job

and full of enthusiasm. I spoke, however, with a judge who recounted to

me the various difficulties that arose during his previous tenure with the

general prosecutor's office in another southern governorate, an experi-

ence from which he emerged bitter and disillusioned. He said that the

fact that many people lied, exploited their influence, and manipulated wit-

nesses often encouraged the officials of the general prosecutor's office to

work harder to cut through to the truth. But this ongoing attempt would

frequently go overboard, leading to a kind of paranoia that bordered on

cruelty. Thus he described to me how disturbed he became about one of

his fellow prosecutors who felt that one hadn't done a good job at the end

of the day unless someone, anyone, was thrown into jail.

O n the other hand, he explained, the only other option seemed to be to

fall back upon strict judicial procedure, if just to maintain the appearance

of neutrality. That is, so long as the proper documents—such as witness

identifications and statements—were in order, the prosecutor would write

his investigative report based on them, even though it was clear that there

was some deception or manipulation involved. The unrelenting pressure

of this constant dilemma finally prompted the judge to accept a judicial

appointment in the administrative courts rather than continuing an other-

wise lucrative career in the general prosecution.

L A W ' S SUSPICION 137

The instances I have described above show up an apparent gap between

the enactment of j u s t i c e — a s expressed in the public ideals of neutrality

and impartiality, and the appearance of i t—enacted with the sensibilities

of indifference, distance, sternness, and suspicion. The judge or general

prosecutor official who works harder to get to the bottom of a complex

situation can be seen to go overboard, where his suspicion in the name

of truth can begin to look like paranoia and an abuse of justice. O n the

other hand, strict adherence to judicial procedure in order to maintain the

appearance of justice risks failing to capture the complexity of the situ-

ation he is confronted with, allowing too many apparent abuses to pass

by. Either way, the enactment of these public ideals, intended to maintain

confidence in the judiciary, works just as well as to undermine it.8 Judges

continue to be suspicious of litigants, and litigants, in turn, distrust and

remain resentful of judges.

In saying this, I do not mean to simply highlight the otherwise banal dis-

tinction between appearance and reality but to point to a historically par-

ticular form in which they are tensely connected.9 Neither is my point about

the difference between substantive and procedural justice, but about how

that distinction comes to be suspiciously construed.10 It is also important

to note that I am not simply making the standard argument that the law

is necessarily performed. What animates this now commonplace notion of

the law's performativity is a theoretical concern over the legitimacy of the

law and how that legitimacy is secured. Not only does this presuppose that

the law is under public scrutiny, but also that it is authority that must be

performed or staged, with suspicion as the natural, default condition if that

staging goes w r o n g — a presupposition I called to question in the previous

chapter. In other words, the concept of the necessary performativity of the

law presupposes the very suspicion whose historical distinctiveness, con-

tours, and consequences I am trying to highlight and explore. If anything,

what my discussion points to is not the idea that the law is necessarily per-

formed, but why the idea of the law's performativity is so easily taken as a

commonplace of contemporary legal and social theory. The distinction and

tension between the enactment and the appearance of justice, upon which

the notion of law's performativity relies, is generated by a suspicion that ties

publicity together with neutrality, impartiality, and legal equality even as it

pushes them apart. It is a distinction that has become an object of knowl-

edge, anxiety, and elaboration in relation to power.11 A s will become clear

later in the chapter, this distinction has important consequences for how

religious authority comes to be structured under the rule of law.

1 3 « C H A P T E R FOUR

Looping Effects of Suspicion and Authority in Law

The broad and pointed suspicion the courts and the general prosecution

expressed seemed to go hand in hand with the lack of trust people had

in them. People resented the judges and the courts in general for the dis-

trust with which they were treated. I spoke with one woman, of Greek

and Egyptian heritage, who had, along with her two younger brothers,

lost her parents to an accident several years ago. Since she was legally an

adult at the time, she took over financial responsibility for her two younger

brothers for several years until they also reached legal age. She absolutely

detested the mal courts. The judges challenged every single expenditure

that she requested. Sometimes they outright refused her, other times they

insisted that her stated p r i c e s — f o r food, education, and clothing—were

too high. She had to fight for every request, even if it was eventually

granted. So fed up was she with this that she cited it as one reason why she

left Egypt and moved to Greece with her siblings once they reached legal

age. Litigants often characterized judges and court officials in extremely

derogatory terms. Lawyers often saw the courts and the law as a system

one learned, over time, "to work." The potential for manipulation was not

lost on judges, who only intensified their suspicion of litigants and even

their own court officials. A n d that led to increased resentment among both

litigants and court officials, against the judges, and against each other.

But this suspicion also expresses itself within other, related registers

of legal practice. The widespread perception that law is highly manipu-

lated spurs on legislation intended to mitigate legal abuse. Such legislation

rarely succeeds, however, as it opens up new possibilities for manipula-

tion, and in return, more legislation. The personal status reform law of

the year 2000 is a case in point. It was enacted, it was claimed, as a set

of procedural reforms so as to mitigate the legal manipulations that had

plagued the personal status courts for years and had led to much suffer-

ing. To that end it included several new provisions, such as one requiring

that a person be served a court summons twice instead of the customary

once. It also provided for a kind of divorce called khul' whereby a woman

could obtain a judicial pronouncement of divorce simply by agreeing to

divest herself of all the financial r ights—such as the retention of the dowry

(mahr), alimony during the specified waiting period (nafaqa), and finan-

cial compensation (mut'a)—that typically go with a standard divorce. Al-

though a practice derived from and sanctioned by the Shari'a, the khul'

provision was widely opposed and hotly contested, not least because most

L A W ' S SUSPICION 139

dowries specified in marriage contracts did not correspond to the amount

of monies actually paid; in many cases the specified dowry amounted to

a single Egyptian pound. In effect, this allowed women to obtain a khul'

divorce while sometimes keeping substantial portions of their dowries for

themselves. They could, it was claimed, hang this possibility over their

husbands' heads.

The khul' divorce provision was intended to simplify and speed up di-

vorce proceedings, which often dragged on for years and threw the women

involved in them into a quagmire of uncertainty, where they could neither

remarry, nor order their financial affairs, nor simply get on with their per-

sonal lives, all because they did not know if they would ever succeed in fi-

nally obtaining a divorce. A n d yet judges had to recognize the fact that the

stated dowries in the contract were not equivalent to the actual dowries

paid out. Thus they accepted appeals concerning the actual amount, which

then required investigation and other procedures, all of which served to

drag the case on. Such appeals were made even in situations in which the

specified dowries were more than a pound, if only to drag the case on

longer, aggravate the woman who raised the case, and maybe even make

it impossible for her to pay back, thereby subverting the purpose of the

provision. This became the occasion for further suspicion on the part of

judges. Some judges saw appeals over actual monies paid as a typical strat-

agem by husbands to delay the case and aggravate the wife. They would

therefore dismiss such appeals unless the husbands had strong evidence.

Other judges, however, suspected the woman for having initiated a khul'

divorce in the first place, seeing it as an attempt to procure financial ad-

vantage from her husband and subsequently marry another man. In such

cases, they would make every effort possible to secure the husband's finan-

cial rights.12 Here the procedures set in place to secure fundamental rights

become suffused with and subverted by suspicion, as they come to be seen

as strategies to abuse those very rights.

One reason why the dowries specified in marriage contracts were so

low in the first place, I was told, was that the marriage notary (ma'zun)

who officially notarized marriages was entitled to a fee that is equal to a

percentage of the dowry, and people did not want to pay him a large fee.

The requirement for notarized contracts, in turn, was established through

a process of gradual reform that began at the end of the nineteenth cen-

tury, as part of an attempt to encourage people to marry at ages that were

more in accordance with the Western European standards of that time.13

While marriage below the specified legal age could not be explicitly for-

bidden, as it was sanctioned by the Shari'a, the courts were forbidden from

1 4 0 C H A P T E R THREE

hearing cases that were not contracted officially, and official contracts

were not given to anyone marrying below the legal age. These regulations

created a situation in which marriages could be legal but nonjusticiable; a

situation which, in turn, became a source of many seemingly irresolvable

problems, such as women being unable to obtain a judicial divorce in the

face of reluctant or absentee husbands and having no legal recourse in

situations where they and their children were not receiving the financial

support due to them.

In partial recognition of the negative effects of these long-standing

regulations, one provision of the new personal status reforms recognized

unofficially contracted marriages for the purposes of judicial divorce, with

no guarantee, however, of the woman's rights that typically come with it.

When I asked lawyers about the consequences of this new provision, they

only replied that who knows what doors it will open. This series of regula-

tions, all of which build upon each other's seeming failures, are prompted

by a sense of the law's manipulability and express an ongoing vigilance

against the potential abuses such manipulation might cause.

Notably, one of the most common forms of legal manipulation in-

volves the use of time. This involves the use of all the allowances of legal

procedure in the courts, which exist to guarantee the rights of the liti-

gants in full. A n d yet the exploitation of such allowances can easily sub-

vert these guarantees, endlessly delaying the court process and making

it impossible for one of the litigants to resolve the dispute. Sometimes a

court case is raised for the very purpose of endlessly delaying the resolu-

tion of a dispute. Thus legal procedure, which was intended as a protec-

tion, becomes instead a preeminent form of abuse. For many, the court

has become a principal site of delay. Political scientist Nathan Brown, in

his study of the Egyptian courts, has discussed some of the mechanisms

used to initiate such delays.14 Besides the right to appeal, one can also

appeal for a judge to be recused (rad-ul-qadi)—which can be done with-

out limit and at little cost. Such motions, he says, are often rejected, but

they can be used to delay cases almost indefinitely. Yet another cause

of delay, he notes, is the courts' frequent use of expert opinions—that

is, court employees who specialize in issues such as forgery or certain

kinds of business practice. These experts are backed up with cases and

this causes yet more delays. A n d even after the judgment, there is the

issue of implementation (tanfldh)\ parties who win a case often find their

adversaries unwilling to comply with the decision, and this forces them

to go back to the courts and appeal to an implementation judge (qadi

L A W ' S SUSPICION 141

al-tanfidh) to enforce judgment. A s a result, litigants not only distrust

the legal procedures of the courts, but judges are also suspicious of the

litigants who invoke them.15 For these reasons, much attention is given

to procedural reforms.

Al l of this illustrates a particular phenomenon, what I see as a loop-

ing effect of a certain kind. Widespread suspicion undermines trust in the

courts and in the law, even while it further entrenches the law by spurring

on ever more legislation. Every new set of reforms opens doors for more

manipulation, more suspicion, and in return, more legislation. A n d as a

particular sphere of social life or set of social relations becomes ever more

intimately legislated, it becomes subject to the kind of suspicion exhib-

ited in the courts. I cannot say how or how much the new personal status

reforms have affected married life in general. But I can say that the khuV

provision changed the way marriage contracts were subsequently writ-

ten. No longer, for example, were false and diminutive representations

of agreed-upon dowries included. This is a consequence of legislation:

interactions that have become the subject of legislation are henceforth

conducted with the supposition that they can be subjected to the courts'

scrutiny and are thereby open to the potential manipulations and delays

that characterize the courts. Such interactions thus begin to partake of the

suspicion exhibited in the courts. The result of all this is that law becomes

everywhere entrenched even as it is everywhere distrusted. This, in part,

is the looping effect of which I speak.

Such looping effects, I would argue, are consistent with the general-

ized phenomenon that Foucault identified of liberal traditions. The inces-

sant vigilance that characterizes such traditions renders authority of all

kinds increasingly suspect. Normalizing power proceeds through a form

of individualization that defines itself precisely through freedom from all

kinds of traditional authority; the increasing interpenetration into social

life of the law that supports this freedom also subjects traditional modes

of authority to the law's suspicious suppositions. Liberalism, in Foucault's

thinking, therefore inaugurates a process whose endpoint is one where

normalized power is everywhere, while authority is nowhere to be found.

Foucault understood this process as part of the way that governmen-

tality instrumentalizes law. With governmentality emerges a notion of

"society" as an object of knowledge, protection, and intervention. Law

becomes an instrument of such protection and intervention. Governmen-

tality is thus a process that involves an increasing legalization of social

relations.16

142 C H A P T E R THREE

Islamic Shari'a and the Rule of Law

So far, I have spoken about how the law becomes more widely entrenched

through the suspicion and distrust that accompanies it. I have suggested

that this suspicion is an embodiment of liberalism's characteristic vigilance

against the abuse of power, and I have seen that vigilance, in turn, as what

partly drives the expansion of governmentality. I have also suggested that

as particular sets of social relations become increasingly subject to legal-

ization, the authorities they traditionally embodied come to be imbued

with (and eroded by) the very suspicion and distrust that the law engen-

ders of itself. This process, I argue, is a feature of the modern rule of law.

What happens, then, to the authority of the Shari'a when it comes un-

der the rule of law? Does it partake of the suspicion and distrust that

characterizes the law? My argument is that indeed it does. However, it

becomes involved in a more complicated process, one that has to do with

specific kinds of indeterminacy generated by the procession of the law.

The ongoing proliferation of the law into aspects of everyday life creates

exceptional situations and instances of indeterminacy where it becomes

difficult to distinguish what is legal from what is not, and where a wide

range of actions subsequently come under suspicion. But more than this, it

is through the creation of these indeterminacies—spaces of e x c e p t i o n —

that the problem-space of secularism is sustained, and sovereign power is

enabled to assert itself in social life with ever-greater force and capacity.

This important relationship between indeterminacy, suspicion, sovereign

power, and the problem-space of secularism must be considered in order

to better understand how the authority of the Shari'a becomes structured

under the rule of law.

Philosopher Giorgio Agamben has addressed issues of law, indeter-

minacy, and sovereignty through his explorations of the sovereign excep-

tion.17 Agamben, taking up the perspectives of Carl Schmitt, writes about

how the sovereign, who is the very foundation of law, is defined by the law

itself as the one who can make the exception to the law. Thus the sover-

eign is both inside and outside the law, simultaneously legal and nonlegal,

and this introduces a level of arbitrariness into law and its foundation,

potentially undermining the authority of law itself. The entrenched im-

age of this state of exception is the state of emergency, where sovereign

intervention is enacted through the suspension of the law. For Agamben,

it is this suspension of law in the state of emergency that fuses together

sovereignty and governmentality, where brute force meets bare life bereft

L A W ' S SUSPICION 143

of law's protection, in the form of administrative detention and the space

of detention camps. Noting that the state of the exception has increasingly

become the norm, Agamben brings out in bold relief the dangers of the

contemporary era, as the camp increasingly becomes its most appropriate

figuration.

"The thought of our time," writes Agamben, "finds itself confronted

with the structure of the exception in every area."18 For him, the structure

of the exception is a logical feature of all kinds of law—positivist, Jew-

ish, Is lamic—and their relation to life. Consequently, the relationship be-

tween law and life must be theorized in all times and places as a problem

of sovereignty. In placing the structure of the exception at the foundation

of law, life, and sovereignty, he imbues all three with a fundamental es-

sence that transcends time and place. I, however, would like to emphasize

some of the historical features of the relationship between governmental-

ity and sovereignty, particularly how they are brought together through

the continual procession of the law as part of the looping effects I have

described above. We should think of this legal proliferation as arising from

the continual attempt of law to overcome its exceptions, inevitably pro-

ducing others in the attempt. This continual attempt is not a quality of

law per se, but of governmentality, which instrumentalizes law and which

is driven by liberalism's incessant vigilance against the potential abuses of

power.

To show how this ongoing attempt to overcome loopholes is not an

intrinsic quality of all law, we might briefly consider a well-elaborated as-

pect of the Shari'a, under a subject called makhärij—or "exits." This was

a literature about loopholes (hiyal) 1 9—ways of recategorizing acts that are

typically forbidden into ones that are permitted. This literature, however,

was not an attempt to find ways of avoiding or preventing such loopholes.

O n the contrary, it was about how to effectively use them. Neither was this

a clandestine l i terature—it was considered perfectly legitimate. Loop-

holes were thus not seen as problems to be overcome; rather, they were

elaborated and incorporated as part of legitimate Shari'a jurisprudence, as

ways of providing remedies to people who were in difficult circumstances.

Other schools of Islamic jurisprudence did elaborate on potential loop-

holes for the purpose of avoiding them. They tried to specify actions that

on the face of it looked permitted but were in reality forbidden. But such

schools were often criticized for these attempts on many grounds, one of

which was that they displayed a level of unwarranted suspicion, making

it difficult for people to conform their practices to the requirements and

allowances of the Islamic Shari'a.20 This attitude is far different from the

144 C H A P T E R THREE

suspicion that accompanies modern legal practice, which tends to see loop-

holes as sources of abuse and manipulation, as problems best overcome

by minimizing or eliminating them. It would be hard to find a parallel to

the Shari'a doctrine of loopholes in modern jurisprudence. Neither is this

Shari'a doctrine applied in contemporary Egyptian law.

Here it is worth noting that the makhärij literature is an example of the

law making exceptions to itself. Yet it does not display the same anxiety

about the exception that is typically found within the modern rule of law.

Within modern law, exceptions are to be overcome, gaps that need to be

filled. If not, the l a w — i t is fe l t—wi l l become subverted, order will dis-

sipate, and arbitrary decisionism will reign. That is why it is thought to

be a paradox when the law must make exceptions, or even suspend itself,

to preserve the order it is tasked with maintaining. But this is only an

anxious paradox when one presumes that exceptions must necessarily be

overcome, and that if not, order will fall. It thus depends upon a modal-

ity of law whose sine qua non is the preservation of order. But as I have

discussed in previous chapters, and as will become apparent in subsequent

ones, there is an entire dimension of the Shari'a that is conceived in terms

of cultivating those virtues deemed proper to an ideal Muslim self. The

structure of the exception that defines the modern paradox of sovereignty

thus presupposes both the idea that law's primary purpose is to maintain

order and that the exception must necessarily be overcome if that order is

to be maintained. The makhärij literature, however, though it is involved in

exceptions, is not directly connected with questions of sovereignty. It may

be that this literature can be theologically connected with the sovereignty

of God. But the fact that it is a part of legitimate Shari'a jurisprudence in

way difficult to countenance within modern legal doctrine suggests that it

does not partake of the problematic of sovereignty—the tendency to as-

sociate the exception with the defense of public order and security within

social life. It also shows that the law's continual attempt to overcome its

exceptions is not a quality intrinsic to it, but arises from its being attached

to distinctive historical forms and structures of organized suspicion.

Historian Khaled Fahmy documents the vast expansion of organized

suspicion in Egypt through his discussion of the establishment of the po-

lice during the nineteenth century. The newly established police relied

on an extensive system of (sometimes secret) informants in both the city

and countryside in order to continue investigating cases that either could

not be tried or had been initially dismissed by the Shari'a courts for in-

adequate evidence. The investigations, however, were continued not so

the police could raise cases in the Shari'a courts. Rather, the investiga-

L A W ' S SUSPICION 145

tions were conducted so that the police could present them in the newly

developing court systems that eventually helped to displace and replace

the Shari'a courts. The development of these new court systems thus went

hand in hand with the expansion of police power and its organized modes

of suspicion into a greater range of everyday life. Fahmy makes the point

that even wealthy and powerful people who had been accused of crimes

were not immune to the new, extensive, investigative powers of the police,

and for that reason many people resorted to and relied on the police. This

indicates that the establishment of the police was part of the emergence of

a new kind of vigilance against power and its abuse. The bringing together

of law and organized suspicion through the police is, according to Fahmy,

one facet of the emergence of governmentality in Egypt.21

Importantly, the proliferation of law and organized suspicion increas-

ingly justifies the use of emergency measures, and thus the assertion of sov-

ereign power. A s more aspects of everyday life become legalized through

the regulatory apparatuses that constitute the state, the range of actions

that potentially create emergency situations and necessitate immediate

interventions also widens. This is particularly so since the temporality of

the law, with its characteristic delays, often contrasts sharply with the vari-

able temporal rhythms of everyday life. Governmentality, through law, is

always temporally out of joint with the domains of everyday life that it en-

compasses. The disjuncture between the delays of an increasingly complex

law and the speed of everyday life can thus always be used to justify emer-

gency measures and the establishment of discretionary agencies autho-

rized to make immediate interventions.22 One example of this is Al-Sadat's

1979 decree reforming the personal status law, popularly named "Jehan's

law" after Al-Sadat's wife because she was the one thought to be behind

the decree. Although Al-Sadat had rescinded Egypt's state of emergency,

he nevertheless justified this reform through those constitutional provi-

sions that authorized presidential emergency powers. The claim was that

the inadequacies of the personal status law represented an immediate dan-

ger to those who had to resort to it, and that the legislature—at that time

in its summer recess—was unable to act quickly enough to adequately

deal with the threat.23 The emergency decree was part of an attempt to

push the personal status law in a more liberal direction. In the final chap-

ter of this book, I will detail the emergency powers of the Egyptian state,

and how Islamist lawyers have engaged these powers in their work.

It is important, however, to point out that the explicit use of emergency

powers isn't the only, or even the most important, way that sovereign

power asserts itself through legal indeterminacy. There are other, more

1 4 6 C H A P T E R THREE

complicated ways in which this can happen. I would like to highlight one

of these ways by returning once more to the example of the hisba case

against A b u Zayd.

It will be remembered that the classical practice of hisba, as articulated

in the authoritative texts of Shari'a, had to be enacted with careful atten-

tion to the question of suspicion. A s detailed in chapter 1, hisba was a

disciplined practice of moral criticism intended to produce proper Muslim

selves, possessed of the correct desires and passions. It therefore included

a set of safeguards against suspicion, which was a sensibility thought to

subvert the inculcation of precisely those virtues for which the practice

of hisba was established. A s such, hisba partook of a broader set of what

I called in chapter 1 "techniques of moral inquiry"—disciplined methods

of interpersonal and collective critical engagement whose underlying con-

cern was to secure those virtues deemed necessary to Muslim living and

the maintenance of Islamic practices, and all of which included safeguards

against suspicion.

Under the A b u Zayd court judgments, however, hisba became largely

detached from the conceptual and practical associations of its classical

elaborations, and all of the careful disciplinary gradations characteristic

of its practice—including the safeguards against suspicion—were in effect

dropped. That was because, under the judgments, hisba became connected

to those concepts and practices—public order, public interest, family and

civil procedure—that characterize modern court litigation. A s a result,

hisba acquired a different sensibility of suspicion, one that was character-

istic of the law and the courts.

Once the court had accepted hisba as legitimate for the purpose of

private litigation and as a practice rooted in public interest and the public

order, suddenly a whole array of actions and activities within everyday life

became potentially justiciable in the courts. However, it was entirely un-

clear just which actions or activities those might be, for the court had not

provided any criteria for determining this. Notably, A b u Zayd's academic

writings offered one interpretation of Islam, one that arguably had ante-

cedents within Islamic tradition. A n d yet it was precisely for these writings

that the court judged A b u Zayd an apostate, and that he was legally sepa-

rated from his wife. Thus even practices typically thought to be within the

purview of Islamic legitimacy were not immune from possible litigation

and even punishment. A very wide range of actions thus became suspect.

That such a wide range of actions could become suspect under law, and

that there were no criteria in place for telling just which acts might be ille-

L A W ' S SUSPICION 147

gal, was one source of the enormous anxiety the hisba judgment provoked.

The A b u Zayd decision thus spread suspicion far and wide and unleashed

hisba as an indeterminate power for use by private citizens.

In response to the indeterminacy of hisba, the state quickly enacted

a set of legislations restricting its use. Significantly, however, this did not

involve specifying any criteria about the actions to which hisba could be

applied. Rather, the state enacted a set of procedural changes. One of

these amended the procedural codes so that plaintiffs would be required

to have a personal and direct interest in order to raise a case. Before this

the requirement was only that they have a direct interest, which the A b u

Zayd judgments had interpreted to include the public duty of hisba. This

new requirement greatly restricted private citizens' use of hisba. More,

steep fines were stipulated for any plaintiff who files a hisba suit that is

determined by the court to be abusive. This legislation can be seen as con-

sistent with the vigilance against power and its abuse that is characteristic

of liberalism.

The most significant legislation enacted by the state, however, was the

one that reserved the right to file a hisba case solely to the general pros-

ecutor.24 A s mentioned earlier, the general prosecutor has very wide in-

vestigative powers, is charged with protecting the public interest, and has

the right to intervene in cases that concern the public order or public mo-

rality. More, although the general prosecutor is considered to be part of

the judiciary branch, it is still connected to the executive branch and thus

represents a dimension of executive power.

In other words, instead of specifying criteria as to which actions and

activities hisba could properly apply, the state simply absorbed the inde-

terminacy of hisba into itself. There was no change in the wide range of

activities to which hisba could potentially be applied. More than this, by

placing the power of hisba in the hands of the general prosecutor, the

state only more firmly entrenched the sensibility of suspicion that hisba

had acquired through the A b u Zayd judgments. It had become part of the

already vast investigative powers and forms of organized suspicion that

characterize the general prosecutor's office. A lso , the fact that the general

prosecutor was connected to the executive in certain ways opened up the

possibility that hisba would be employed as a form of sovereign power at

any time.

Thus the legislation enacted by the state neither mitigated the indeter-

minacy of hisba nor the suspicion that came with it. The legislation only

placed hisba within the structures of the s ta te—and ambiguously between

148 CHAPTER THREE

judicial and executive power. A s a result, both Islamists and liberals op-

posed the new legislation: Islamists, because it denied them their court-

sanctioned rights as individual citizens, and liberals, because it recognized

the principle of hisba and reserved the power of its use solely for the state.

Fraught with ambiguity, hisba under law came to be viewed with suspicion

by all.

Importantly, however, hisba became much more than just an object of

suspicion. It also came to embody a specific modality of suspicion that the

state could exercise. T o better understand how this modality of suspicion

is structured, it is important to pause here and return to a central passage

from the A b u Z a y d judgments, one that was cited in chapter 1.

The Court notes that there is a difference between apostasy, which is a material

action with its basic elements and conditions . . . and belief (i'tiqäd). Apostasy

is necessarily comprised of material acts that have an external being. Such acts

must make manifest, in a manner undeniable and without dissent, that one has

called God Most High a liar, and the Prophet, peace be upon him, a liar by

denying what he has brought to Is lam.. . . Belief, however, differs clearly from

apostasy. For apostasy is a crime whose basic material elements are presented

before a judge to decide whether it exists or n o t . . . . But belief concerns what is

in the interior of a human being's self, belonging to his domain of secrecy. It is

neither a matter of judicial probing, nor of investigation by people, but is to do

with the relationship between the human being and his Creator. Apostasy is a

breach of the Islamic order, at its highest degree and most valued foundations,

through manifest, material actions. In positive law, it comes close to a breach

of the order of the state or high treason. Apostasy is investigated by the judge

or the mufti. However, the punishment for assaulting religion through [an act

of] apostasy does not contradict personal freedom. This is because freedom of

belief ('aqida) requires that one be sincere (mu'minan) in his words and acts,

and [so] one has a sound logic in abandoning belief. But a breach of Islam can

only be due to corruption in thought or the lure of material, sexual, or other

worldly purposes. To combat this category [of desire] is not considered combat

against freedom of belief, but rather the protection of belief from such vain,

corrupt passions.

In distinguishing between apostasy as an "outer" material act and belief

that occurs in an "interior" forum, the court defines its jurisdiction over

the determination of apostasy and justifies the approach it takes in making

that determination. O n the basis of this distinction, the court took only

L A W ' S SUSPICION 149

A b u Zayd's written work into account, without probing more deeply into

his personal views, into his "interior" relationship with his creator. Taking

statements from his written work at face value, the court compared them

with statements designated within the Shari'a as indicating apostasy; find-

ing them to be similar, it thus pronounced him an apostate from Islam.

Many commentators on the case have remarked on this separation be-

tween private belief and public act/expression. However, no one that I

am aware of has highlighted the importance of how the court brings them

back together again in the context of a defense of religious freedom. A s I

mentioned in the first chapter, the court did not see freedom of religious

belief as simply the freedom to believe what one wants. It also includes

maintaining the conditions under which religious belief can be sustained

and cultivated. For the court, this entails that belief be protected from the

worldly motives of power that might corrupt it. This, in turn, requires the

court to pronounce what those motives a r e — a s it did with A b u Zayd.25

Acts and expressions of belief are therefore objects of especial suspicion

for potentially harboring ulterior, corrupting motives. A s a result they can

be put under particular scrutiny. Such scrutiny might be seen as a kind of

vigilance against power and its abuse. (Indeed, part of the court's concern

was not just that A b u Zayd was writing these books, but that he was teach-

ing them to university students.) In other words, outer act and inner belief,

though initially divided, come to be reconnected through a suspicion of

motives of material interest or worldly power. In the context of the free-

dom of religious belief, it becomes important to determine whether acts or

expressions of belief are genuinely religiously motivated. This presumes

the power to pronounce upon, and if necessary probe into, the character

of one's private convictions. Here the defense of religious freedom be-

comes connected to a particular form of suspicion.

This disjunction and reconnection of outer religious expression and

private conviction through motive and desire in the context of religious

freedom is not exclusive to Egypt. Versions of it are found in paradigmatic

secular states as well, including ones typically considered very different

from each other, such as France and the United States.

For example, Winnifred Sullivan has poignantly highlighted two cen-

tral criteria in U S jurisprudence for determining the genuine religiosity

of acts and expressions. They parallel the ones found in the A b u Zayd

case. The first criterion was whether or not such acts or expressions were

sincerely held to be essential to one's religion. This came into conflict with

the second often-prevailing criterion: like with the A b u Zayd case, this

150 C H A P T E R THREE

was the question of whether these acts and expressions were authorized

and mandated by orthodox religious texts.26 In U S courts there seemed to

be a disposition to presume the sincerity of litigants' religious b e l i e f — a

presumption that may be due in part to a traditional A m e r i c a n respect

for individual belief rooted in a particular Protestant history. However,

this should not detract from the fact that it is the court that retains the

prerogative to determine and investigate this sincerity in the context of

defining and defending religious f r e e d o m s — a prerogative that it has exer-

cised.27 Neither should it detract from the fact that this determination and

investigation purveys a suspicion of motives of material interests or other

worldly purposes.28 But whether it is preferable for the court to actually in-

vestigate sincerity or simply attribute its existence or lack thereof without

an investigation has been historically difficult to decide.29

A similar situation can be found in France. Anthropologist Mayanthi

Fernando writes about the dilemma that veiled Muslim women faced in

arguing against the banning of the veil in public schools. If the veil was

deemed an obligation mandated by religious authorities, then it could be

construed as potentially coercive and an impingement of religious free-

dom. T h e French state was therefore very concerned to ascertain that

there was no external coercion or pressure involved in the wearing of the

v e i l — a concern that entailed knowing about the circumstances of people's

private lives. But if the veil was construed as a matter of personal b e l i e f — a

c h o i c e — t h e n it was not mandated by orthodox religious texts and there-

fore not essential to the practice of one's religion. Banning it was therefore

not necessarily an impingement on religious freedom.3 0

But even as a personal belief and choice not necessarily mandated by

religious authority, the state still construed the veil as an essentially reli-

gious and fundamentally Islamic sign. For state officials it indicated a will

and a desire to manifest one's Islam. S o m e saw it as potentially indicative

of a rising Islamism, one that promoted a degradation of women's status

in way incompatible with the fundamental values of the French republic

and its ideals of citizenship. It was thus a will and a desire that the state

sought not to encourage, lest those values and ideals become increasingly

unsettled. Thus, in his analysis of the government commission's investiga-

tion, Talal A s a d notes that

not only [do] government officials decide what sartorial signs mean, but . . .

they do so by privileged access to the wearer's motives and will—to her sub-

jectivity—and that this is facilitated by resort to a certain kind of semiotics. A

L A W S SUSPICION 1 5 1

governmental commission of inquiry claims to bring private concerns, commit-

ments and sentiments to the public sphere in order to assess their validity for

the secular Republic, but it does much more than that. It constitutes meanings

by drawing on internal (psychological) signs or external (social) signs, encour-

ages certain desires and emotions at the expense of others.31

So even though the veil was construed as a choice, indeed, precisely because

it was, it could be a deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior m o -

tives is a practice of suspicion becomes fully evident when it comes to Mus-

lims in Europe and the United States, and the near paranoid quality of the

debates provoked by the building of mosques and minarets, the potential

usage of Shari'a law, the teaching of A r a b i c in public schools, the donating

to Muslim charities, and the wearing of veils. Whi le there are, of course,

many complicated historical and political reasons for this near paranoia,

my point is to emphasize a central element of the structure that it takes.

A n d this is the constant attempt to unmask ulterior motives of material

interest and worldly power behind a range of otherwise ordinary (in this

case, Muslim) practices and expressions of belief in order to defend a set

of freedoms, including especially religious f reedom, that are seen as con-

stitutive of the ways of life the state is supposed to guarantee.

These examples highlight a distinctive structure of legalized suspicion.

O n the one hand, private belief and public act/expression are made sepa-

rate, but on the other they are brought together in order to define and

defend religious freedoms. E v e n though the act/expression is considered

separate, it comes to be characterized in relation to private belief in or-

der to determine potential consequences and dangers. In this case, private

belief becomes part of, and framed within, a complex of motives, will,

and desire. To the extent that this complex expresses material interests or

drives toward worldly power, it becomes suspect. A s such, it can b e c o m e

subject to investigation and disciplining, which means probing into the

details of private life and conviction. It is this structure of suspicion that

is shared by the United States, France, and Egypt . W h a t is interesting is

that it brings together two tenets under the pretext of religious freedom: a

vigilance against power and its a b u s e — a fundamentally liberal tenet, and

a desire to draw a line between religion and material p o w e r — a n ostensi-

bly secular tenet. This suggests that the suspicion of religion is the flip side

of freedom of religious belief. Both find their pronounced expression and

promotion as part of the law.

1 5 2 C H A P T E R THREE

The passage of the A b u Zayd judgment cited above brings this con-

tradictory structure of suspicion into the boldest relief. A t one level, A b u

Zayd's written statements were taken at face v a l u e — t o say what they

m e a n — a n d when compared with the doctrinal positions to which they

referred, were found by the court to contradict them. Since he stood by

his writing, the court declared him an apostate. But in the context of the

question of religious freedom, A b u Zayd's words are paid extra atten-

tion, meaning more than what they say, as having ulterior worldly motives

against which the freedom of b e l i e f — t o cultivate belief and have it flour-

ish—must be defended. In this case, the court did not actually investigate

A b u Zayd's motives. It simply presumed and pronounced what they were.

This shows that the suspicious attribution of motives does not depend on

an investigation, even though it enables such an investigation to be done

at the discretion of the judiciary.

Hisba, through the A b u Zayd judgments and subsequent legislation,

has come to embody precisely this structure of suspicion, and the discre-

tionary power that comes with it. It therefore becomes a way in which the

sovereign power of decision can assert itself into the intimate domains of

everyday life. This becomes clear when it is remembered that the power of

hisba was placed in the hands of the general prosecutor, his ambiguous sta-

tus between judiciary and executive power and thus, his nearly unfettered

investigative authority. Now it is the general prosecutor who is responsible

for bringing a hisba case to court. He must therefore conduct an investiga-

tion in order to decide whether or not a potential case merits a hearing in

the courts. That means that he might have to look into the motives behind

statements of religious belief. If, however, such an investigation seems like

too much of an intrusion into a person's private domain or interior forum,

the general prosecutor has another option at his discretion: to take these

statements at face value, as saying what they mean, just like the court did

with A b u Zayd. To focus on literal statements, however, is to risk failing

to capture the complexity of people's individual religious lives. A s in the

cases of the United States and France described above, it is not clear which

is preferable: to actually investigate how genuine one's religious motives

are, or to simply make a presumption as to how genuine they really are.

This dilemma between intruding into a private, ostensibly protected

domain or taking statements too literally is reminiscent of another di-

lemma highlighted earlier in this chapter: between the enactment and the

appearance of justice. The more zealously the judge or prosecutor investi-

gates, the more abusive of justice he might seem to be. Yet if he falls back

L A W ' S SUSPICION 153

on strict procedure, this might allow too many injustices to go by. Hisba,

through and under the law, now partakes of this dilemma too.

I have cited the passage above from the A b u Zayd judgments to show

how hisba has come to embody a distinctive structure of suspicion. A s a

result of the judgments, hisba became a power potentially threatening an

entire domain of private rights. In restricting its use and absorbing the in-

determinacy of hisba into itself, the state transformed it into a modality of

suspicion that only it could exercise. This modality of suspicion, enabled in

the interest of defending religious freedoms, nevertheless undermined the

very distinctions on which they crucially relied. More, it became ensconced

within another dynamic of suspicion: the tension between the enactment

and the appearance of justice. This not only confirms Winnifred Sullivan's

point that religious freedom as a legally enforceable right is impossible.32

It also shows how such religious freedom will never appear to be fully

achieved, being entangled in its entirety within the dynamics of law's sus-

picion. This is especially the case with hisba because, as I showed in chap-

ter 2, it remains indeterminate as to whether it is an Islamic and thus

primarily religious concept, or, as an expression of public order and its de-

fense, it has become an essentially secular principle. A s a result, the ques-

tion of religious freedom remains a poignantly live one, both a source and

object of continual questioning and critique. Or to put it more precisely,

the stake of religious freedom, and all the questions to which it has come

to be attached, remain poignantly alive. That is to say, the modalities and

dynamics of suspicion I have outlined here sustain the problem-space of

secularism, the questions and stakes that constitute it. We remain bound

to this problem-space through the suspicion it incessantly provokes.

I have presented this extended example of hisba because it tells us

about what happens to the authority of the Shari'a under the rule of law.

It shows how the Shari'a partakes of the spaces of exception—indetermi-

nacies and exceptional situations—that are created by the proliferation

of law into aspects of everyday life. The state absorbed hisba in order to

prevent its abuse; this could be seen as consistent with liberalism's char-

acteristic vigilance against the abuse of power. But in absorbing hisba,

the state acquired something akin to an exceptional power, one that it

could use anytime. Stripped of its classical disciplinary gradations and

safeguards against suspicion by the law, hisba had become a principle

of indeterminate range, rooted unequivocally in the state but standing

ambiguously between judiciary and executive power, between religious

and secular principle, and between the enactment and the appearance of

1 5 4 C H A P T E R THREE

justice. A s a result of all these ambiguities, hisba became both an object

and a source of suspicion. What this example of hisba shows us is not only

how the authority of the Shari'a can become ambiguous, indeterminate,

and entangled in suspicion under the rule of law. It also demonstrates how

the rule of law structures the Shari'a's authority in a way that both sustains

the problem-space of secularism and enables the assertion of sovereign

power into broader and more intimate domains of everyday life.

A Paradox of Gender between the Court and the Council

I would like to present another example of what happens to the Shari'a

and its authority when it is exercised as part of the liberal rule of law. It

concerns yet another paradoxical difference between the personal status

law and the Fatwa Council.

The space of personal status law is gendered. Several occasions made

this obvious. When lawyers and court officials spoke to me and to one an-

other about personal status law, they often referred, jokingly, to women.

Thus one lawyer jokingly admonished a fellow lawyer who specialized in

personal status law for not keeping in touch with him, inferring that he

was too busy with his "office full of women (harlm)" to phone. A s I was

wandering the courts during my initial days of fieldwork I met a court

official who told me which room to go to if I was interested in personal

status cases. "There," he said, "you'll find all sorts of women (harlm) with

all sorts of problems." A n y reform of personal status law is almost always

justified by reference to the status and problems that women face during

litigation, and always sparks controversy over women's status. Also, femi-

nist lawyers in Egypt are always most concerned with the state of personal

status law. O n e lawyer who had much expertise in personal status issues

declared to me that the entire apparatus of personal status law is set up for

women. The personal status courts, he said, are seen to be primarily places

where women exercise their rights over men. A s an example, he told me

of a recent case in which a man tried to initiate divorce in the courts. The

case was dismissed, and the court reasoned that divorce is the prerogative

of the man, and that he does not need recourse to the courts for it. Recent

personal status legislation calling for the establishment of family courts has

brought on a large wave of women applicants for the positions of judges in

these courts. This represents the first time that women have been allowed

to occupy the profession of judge in the personal status courts. Thus when

I say that the domain of the personal status law is gendered, I do not mean

L A W ' S SUSPICION 155

that it is a space that women own, or in which they have a v o i c e — o n the

contrary, the judges are almost all men, the lawyers are mostly men, and

most of the court staff are men. Nevertheless, it is explicitly associated, on

every level, with women, their issues, their rights, and their overall status

in society. A s a result, the Shari'a is also associated with the question of

women's rights and status.

The Fatwa Council also represents a male space, as all the muftis are

men, and all the other council officials are men. And, as noted before,

the council addresses many of the same issues as the personal status law.

Despite this evident inequality and its effects on women's social status, the

council and its fatwas are not explicitly associated with the issue of women

on any level. The question of women's rights and their status arises neither

socially nor politically with respect to the Fatwa Council in any sustained

way. The question thus presents itself: why is it that only the personal sta-

tus courts are associated with women's issues, when both the courts and

the council are equally male spaces, dealing with similar sets of issues, and

both claiming to derive their decisions from the Shari'al

One might cite a straightforward reason for this: laws can be changed

while fatwas and their content, because of their multiplicity within quo-

tidian life, are not so easily subjected to legislative reform. The plebian

character of the fatwa is certainly an important fact, and I will refer to it

in the next chapter. But this fact, important as it is, tells us little. It does

not by itself answer the question: what are the conditions that made it

possible for the woman question to arise as a live question in the domain

of personal status law?33 This can only be answered by first looking at the

form in which the question of women arises, that is, the presuppositions

that structure it.

To do that, we can look briefly at the debates that erupted over the

personal status reform of the year 2000. A set of concepts and images

stays constant within these debates, throughout all the positions taken in

them. O n e such concept is that of Egyptian society (al-mujtam'a al-masri)

as something in need of protection, and whose integral unit is the family

(al-usra). Another idea is that society is to be protected through law, and

that law must ensure the harmony of family relations. A n y consideration

of women's legally prescribed rights and status must therefore include how

such rights and status affect the harmony of family relations, and conse-

quently, the integrity of society as a whole.

Two contrasting images remained dominant throughout the debates.

Their constancy indicates that they were equally compelling. The first

image, consonant with the notion of the courts as a site of delay, was of

1 5 6 C H A P T E R THREE

long lines of women suffering through drawn-out divorce proceedings that

lasted years, made possible by cumbersome personal status regulations

that were easily exploited through the loopholes that plagued them. The

second was one of women exploiting the new personal status provisions

to coerce their husbands into making otherwise unacceptable concessions

or to irresponsibly abandon their wifely and motherly duties. Both images

project a threat to the harmony of family relations and, by extension, so-

ciety as a whole.34 Moreover, though they are opposed, these two images

share an important feature: the notion that the law is always open to ma-

nipulation and exploitation. Law's potential manipulability is invoked by

both sides in these debates.

Let me here reiterate the presuppositions that underlay the woman

question as it arises in these debates, so as to clarify how they structure it:

( i ) society must be protected; (2) the harmony of the family, as the inte-

gral unit of society, must be protected; (3) this protection must be ensured

by law; and (4) law is always open to manipulation and exploitation. The

inevitable conclusion of these presuppositions is that the family, and hence

society, is always under potential threat. Indeed, if we follow the two im-

ages presented above, harmonious family relations would be under threat

one way or another due to legal manipulations, whether the controversial

reform was passed or not.

That law is suspected of being open to manipulation means that when

the Shari'a is exercised within this legal framework, then it too becomes

suspect of being open to such manipulation. During the debate over the

new personal status law, differences in the interpretation of the Shari'a

were suspected of concealing differences in personal and political agen-

das, which thus had to be exposed. Even Islamist lawyers with whom I

spoke saw the new law as a manipulation of Islam. I asked them how they

could say this when the changes it enacted were so clearly rooted in the

Shari'a, even if it promoted an interpretation of Islam with which they

happened to disagree. To this they responded by talking about the motives

of those who advocated for the new reform, saying that they were using

select aspects of Islam to push an underlying liberalizing agenda. What is

interesting about this claim is not so much the truth of it.35 Rather, it is that

the disagreement arose less from the validity of the interpretation of Islam

in question than the perceived motives of those who advocated for it. In

other words, revealing underlying motives was seen as a way of impugning

the authority of a particular claim to Islam. This was a common technique

of criticism. For example, a group of Azhari scholars published a critical

LAW S SUSPICION 1 5 7

statement on the reform that, among other criticisms, linked it to earlier

Western colonial-style manipulations.36

Indeed, people on different sides of these debates accused their op-

ponents of manipulating the Shari'a for advancing their own purposes.

The Shari'a thus becomes a site of suspicion and subsequent unmasking

in order to reveal the underlying motives of power it conceals. The Shari'a

remains central to the debate, even as its invocation is increasingly dis-

trusted. We thus find ourselves brought back to the structures of suspicion

and authority discussed in the previous section. These are the structures

in which the woman question in Egypt is embedded. I submit that the

question of women's rights and the Shari'a is a manifestation of liberal

law's suspicion. A s such, it is but one manifestation of liberal traditions'

featured vigilance against power and its abuse. It is a product of the liberal

legalization of what have come to be understood as family relations in

Egypt.

The legalization of what came to be called family started well over a

century ago in Egypt, and the idea that the family's harmony must be en-

sured through law is just as old. The conditions that made the question of

women's rights, as it is recognized today, possible were in place by 1897,

with the wide-ranging Shari'a court reforms of that year. While the term

society (mujtam'a) as it is used in the above-referenced personal status de-

bates was available only in the 1930s, the 1897 reforms instituted, for the

first time, a legal analogue to it that remains in force today: the notion of

"the public order" that must be respected in and protected by the courts.

The 1897 reforms were also the ones that specified the Shari'a courts' ju-

risdiction solely to those issues now defined as family matters. A t the same

time, a liberal notion of family as a space of intimacy and secrecy was

rising to prominence among Egyptian reformers. The conceptual and af-

fective affinities forged by these transformations were discussed at length

in chapter 2.

However, the 1897 reforms also introduced something of crucial im-

portance for our purposes here: a provision allowing that Shari'a court

judgments be carried out by force if necessary, even if this required forced

entry into people's homes. This provision paved the way for subsequent

legislation that made it possible, for the first time, for husbands to demand

that judgments ordering the obedience of their wives be carried out by

force. This was used to retrieve them when they had quit their husbands'

homes, a practice of retrieval that was legislated in 1920 and called bayt

al-ta'a (house of obedience). Henceforth, until the abolishment of bayt

1 5 8 C H A P T E R THREE

al-ta'a, husbands could subject their wives to the violence of the law. A t

issue here, however, is not just the singular fact that they could do this. It

is that this subjection could now be framed within the specific understand-

ings and interweaving of liberal concepts of family, of the Shari'a, and

notions of the public order.37

A s I noted in chapter 2, these interwoven concepts and sensibilities put

in place a particular contradiction: on the one hand, religion is placed in

a private domain, ostensibly to be protected from state intervention, but

on the other, family is placed in this same domain, but to be protected

by state intervention as part of its sovereign responsibility to sustain and

defend the public order. We can see this contradiction at work in the fact

that bayt al-ta'a was not restricted to the jurisdiction of the Shari'a courts,

but was applied by other denominational courts (majälis milliyya) as well.

Legal historian A m i r a E l - A z h a r y Sonbol notes that the Coptic courts also

practiced bayt al-ta'a. She quotes one of their judgments from the early

1950s that poignantly illustrates the link between state power and the de-

fense of family:

The obedience of a wife to her husband is a duty according to Church law and

according to the traditions of the Majlis al-Milli. [This is because obedience] is

the corner-stone of the family no matter the severity involved in the interfer-

ence of the executive authorities to assure execution by forcible compulsion

(al-quwa al-jibriya). Without this the family would at the mercy of tremendous

dangers (akhtar jasima).m

I also noted in chapter 2 that this link between family and state power

is not just one whereby the state intervenes into religious affairs to defend

the family, but also where religious p r a c t i c e s — l i k e hisba—that would

normally be confined to a private domain can emerge as forms of public

and state power.

A decree of the ministry of justice abolished bayt al-ta'a in 1967, but

the forced interventions that it enabled subsided only slowly, with cases

being reported as late as the early 1980s.39 A different court procedure has

since replaced it: if the wife leaves her husband's home he has the right

to have the courts issue an order for her to return (indhär ta'a). She then

has thirty days to respond; the response can be of three types. Either she

can return home; she can submit a complaint about the home i t s e l f — t h a t

it is unfit to live in for reasons of status or morality (e.g., the wall has a

huge hole allowing neighbors to see inside private areas, or illicit sales of

L A W S SUSPICION 1 5 9

drugs are being made next door, or the house is unsuitable for a person of

her class background); or she can initiate divorce proceedings through the

court. If she does none of these, it is within the rights of the husband to

stop paying her any financial support. Although the forced interventions

are gone, this court procedure, as all others, is still attached to concerns

over the protection of the family, society, and the public order, as I have

demonstrated in the second chapter. We can therefore ask: do women now

have the protection of the law? O r on the contrary, do women and their

rights continue to be abandoned to the law, its endless proliferation, its

incessant suspicion, the uncertainties of its ever-present exceptions, and

its continual entanglement in the question of religion and politics? We can

ask this question not just of women's rights but also of the broader issues

of gender and sexuality that those rights index.

Conclusion

In this chapter I have tried not to delineate a theory of suspicion in the

rule of law, but rather to explore some of its ways and means within vari-

ous registers of modern legal practice. I wanted to explore some of the

consequences of the law's modes of suspicion, upon the law itself, but also

upon the authority of those concepts and practices designated as religious

and subsumed under the rule of law. I have tried to do this because mod-

ern legal conditions are indispensible to secularism as a problem-space,

and thus as a power that works through the activity of critical questioning

that it facilitates. This exploration has alerted us to two things that I would

like to underline here. First, that this activity of critical questioning goes

hand in hand with the assertion of sovereign capacity into broader and

more intimate domains of everyday life, and second, it becomes impos-

sible to determine whether that sovereign power is secular or religious in

character. The consequences of these two facts remain to be considered.

The structures of legal authority I have described in this chapter differ

starkly from those we will see in the Fatwa Council, rooted as it is in dif-

ferent principles and goals. A consideration of those differences will allow

us to make some broader observations on the workings of secular power.

It is to the Fatwa Council that we now turn.

CHAPTER FIVE

What Is a Fatwa?: Authority, Tradition, and the Care of the Self

In the previous chapter I detailed aspects of the style and manner of the

judges in the courts in order to better understand the forms of suspi-

cion that permeate the courts and the legal system and the nature of their

binding power. In this chapter I describe in detail the style and manner of

the muftis in dispensing their fatwas, in connection with the concepts and

understood goals of the Fatwa Council. This is in order to better under-

stand the nature of the Fatwa Council's authority, and the general lack of

suspicion within it. I would like to begin with the very first time I witnessed

the fatwa, as it provides a useful contrast with the discussion of the khul'

divorce at the end of the last chapter.

A Shotgun Divorce

It was the summer of 1994, long before the khul' law. I was in Egypt for

preliminary fieldwork, trying to formulate my research project. Thinking

that my research might focus on practices of Qur'anic recitation, I had

joined a small group of students at A l - A z h a r Mosque, who were all study-

ing how to properly recite the Qur'an under one sheikh whose specialty

was the teaching of its recitation. It was late in the afternoon, long after the

Fatwa Council had closed for the day. We were in the main sheikhs' room,

sitting in a circle, all reciting in turn under the guidance of the sheikh.

A large, portly man entered the room and stepped unsteadily over into

the middle of the circle, nearly toppling over as he sat down to directly

face the sheikh. The sheikh seemed somewhat annoyed at this interrup-

W H A T IS A F A T W A ? 161

tion and asked the man bluntly what he wanted. Upon which the man

replied that his wife had forced him to divorce her.

"Forced you?" the sheikh asked, almost as a retort.

He then explained that his wife's family had come to the house, put a

gun to his head, and forced him to pronounce her divorced.

The sheikh was stunned: "and your wife, she wanted this?"

The man replied that yes, she did, and that she had left with her family.

"She left, and she didn't take anything with her?" asked the sheikh.

Yes, the man replied.

"Well, that's it," said the sheikh, shaking his head. But the man was

clearly perplexed. "She hates you (heya tikrahak)," explained the sheikh,

"and so that's it, it's finished."

The man, however, objected that such a forced pronouncement of di-

vorce was not legally valid. The sheikh replied that this didn't matter, and

that his wife simply hated him. Why, the sheikh asked him, would he want

to be with someone who hates him?

The sheikh then chuckled and turned to call at another, much older

sheikh who was also in the room: "come listen to this!" Upon hearing the

man's story, the older sheikh also shook his head, and said, "that's hate

(karh)\" He explained to the man that marriage was based on acceptance

between the couple, and that if one of them no longer accepts it, then the

marriage is finished. A n d anyway, the older sheikh asked, why would you

want to be with someone who hates you? The man had no answer for this.

A f t e r a moment of silence, he demanded a written fatwa, to which the

sheikhs replied that he could go ahead and try to get one. But everyone,

they said, would tell him the same thing. The older sheikh left the man and

went back to his work; the other sheikh went and sat down next to another

student in the circle, instructing him to recite.

The man sat in the middle of the circle a while longer, as it slowly

dawned upon him that there was nothing more the sheikhs in the room

would do for him. He had received his fatwa. N o one noticed when he got

up and left.

I first became aware of the importance of the fatwa through this inci-

dent. But it was only later, after the khul' debate and the form it took, that

I came to register the importance of this incident. It showed that sheikhs

sanctioned practices similar to khul' long before it was ever codified in

the personal status law. More important, however, was the discussion

that took place with the sheikhs. They were not concerned, as they typi-

cally were, with the exact words the husband uttered to ascertain if they

C H A P T E R FIVE

conformed to the specified formula for divorce. Neither was there any

discussion of family harmony, the dangers to society, or any of the kinds of

issues that explicitly arose with the khul' debates discussed in the previous

chapter. Rather, the discussion was about hate, how it nullifies the bonds

of marriage, and why anyone would want to be with someone who hates

them. In the khul' law, the wife is required to state, as a formula, that she

so detests her life with her husband that she fears going beyond God's

restrictions. T h e emphasis is upon transgressing the law and the potential

disharmony such transgression might create. This was completely unlike

with the fatwa. In other words, the fatwa did not partake of the same set of

concerns that animated the debate on khul', and which finds expression in

the required formula of that law. In many ways, the fatwas of the council

did not partake of the same concepts and sensibilities that were crucial to

the personal status courts and the rule of law more generally in Egypt. We

saw some of this in the comparisons made in chapter 2.

It is not enough, however, to define the fatwa negatively, that is, as lack-

ing what law requires. We must also investigate its practice if we are to

understand its authority, the work that its bonds do, and how this differs

from the bonds of suspicion we have seen of the law.

Authority, Time, and Creativity in Islamic Tradition

A s little as there has been written on the suspicion that pervades the mod-

ern rule of law, there has been even less on the authority of the fatwa.

Although it is well known that the fatwa is a central means of exercising

Islamic authority, the bulk of the broader scholarly literature tends instead

to be preoccupied with its role as an instrument and expression of doctri-

nal creativity and change.1 The emphasis is on how the fatwa adapts other-

wise unchanging doctrines to constantly novel circumstances rather than

on its capacity to secure authority in light of its circumstances—whether

or not they happen to be novel.

This emphasis emerged as a critical response to an earlier, prevailing

set of understandings about the nature of Islamic traditions. These under-

standings, represented in the foundational works of Islamic law scholar

Joseph Schacht,2 held that Islamic tradition began to exhibit a growing gap

between doctrine and practice very early on in its development. This gap is

said to have begun with the tenth-century Islamic doctrine of "the closing

of the gates" of ijtihäd—ijtihäd being a form of doctrinal interpretation

W H A T IS A FATWA? 1 6 3

that was relatively unconstrained by previous doctrinal rulings. A l l that

was left to muftis after this was taqlld (imitation), that is, the reproducing

of previous rulings. Without the creativity intrinsic to ijtihäd, the gap be-

tween doctrine and practice became an irremediable problem in Islamic

tradition, one that has grown particularly acute with the rise of the mod-

ern state and the rapid change it precipitates.

The literature on the fatwa, as I have said, is a critique of these older

views. It was inspired by Islamic studies scholar Wael Hallaq who, in a

seminal article argued that the doctrine of the closing of ijtihäd was not

as widely held among Muslims as Schacht had presumed.3 Since Hallaq's

article, scholars have sought to show how ijtihäd continued on, especially

in and through the work of muftis and their fatwas.4 They have also ar-

gued that even without ijtihäd, muftis have always been quietly, creatively

adapting ostensibly rigid doctrine to everyday needs under the guise of

taqlld, of simply reproducing previous rulings.5 It is through fatwas, then,

that the gap between the fixed past and a constantly changing present and

future is bridged. O n e outcome of this response is that the fatwa came to

be seen as essentially, and necessarily, an instrument and expression of

doctrinal change and adaptation. Fatwas were cast as mainly doctrinal

pronouncements, formal expressions of judicial opinion. Out of this came

an emphasis on the styles of reasoning and modes of justification involved

in fatwas and a consequent concern to study those that deal with contro-

versial, modern change.6

This literature has taught us much, especially about the variety and

sophistication of the forms of reasoning muftis use to justify their fatwas.

It also evokes the important idea of Islamic tradition as an ongoing space

of argument and interpretation grounded in the authoritative texts of the

past. A t the same time, however, I worry that the particular emphases of

this literature have diverted attention away from other crucial dimensions

of the fatwa. For example, the image that it conveys of fatwas as general

doctrinal answers to equally general questions contrasts sharply with the

personal and situation-specific ways I saw them practiced. In casting fat-

was as doctrinal pronouncements, as formal judicial opinions and thus a

species of law conventionally understood, this view of the fatwa also un-

dercuts an integral ethical dimension of its practice, as will become clear

in my discussion of the Fatwa Council. Moreover, the focus on doctrinal

reasoning and modes of justification, which emphasizes how the fatwa per-

suades its recipients of its doctrinal conclusions, ignores the fact that most

fatwas do not include their specific reasoning and so are not involved in

164 CHAPTER THREE

persuading people about correct points of doctrine. A n d thus the empha-

sis on doctrinal reasoning and persuasion, though important, goes little in

the way of explaining the authority of the fatwa, which is not reducible to

persuasion or coercion.

But more than that, the approach of this more recent literature unnec-

essarily complicates the question of the authority of the fatwa, creating a

puzzle of its own that it rarely ever addresses, or ever really recognizes.

T h e puzzle can be put like this: how does the fatwa retain its authority

based on the claim that it only, or mainly, applies t ime-honored doctrinal

rulings (i.e., taqlld) when it in fact continually changes them (i.e., through

ijtihäd)? T h e few attempts to explain this apparent puzzle commonly re-

sort to the idea that there is some sort of manipulation or d e c e p t i o n —

including possibly even se l f -decept ion—on the part of the mufti, often for

the purpose of securing a set of predefined interests. Such explanations,

however, only m a k e explicit an image that lies just below the surface of

much of this literature, one that depicts a mufti with preconceived views

and preconstituted interests w h o cleverly shapes doctrinal material to

craft a fatwa that accords with them. A s an essentially false representation

of the past, the fatwa thus becomes a means to securing ends that bear no

intrinsic relation to it. Such an instrumentalist view of the practice of the

fatwa also lends itself to the idea that the relation between the mufti and

the fatwa-seeker is essentially one of deception. This notion is found in

even some of the most insightful discussions of the fatwa.

We can consider briefly here a learned and erudite discussion by Sher-

man Jackson7 on a fatwa given by sixteenth-century Cairo mufti and judge

B a d r al-Din al Qarafi . Jackson writes, with respect to taqlld,

Rather than a return to scripture directly in an effort to effect new interpreta-

tions of the sources . . . jurists respond to change and unforeseen exigencies by

invoking new divisions, exceptions, definitions and precedents within the body

of school doctrine, on which they are able to construct—as opposed to invent-

ing—new conclusions whose conspicuous link with the views of established

authorities from the past earn them acceptability within the school at large.8

Jackson chooses his words carefully. H e posits construction within al-

ready existing material as against invention that may or may not be based

in that material. Yet the metaphor of construction implies that the mufti

already has a blueprint in mind, toward which he constructs. Might it not

have b e e n equally possible to assert that the muft i discerns in the doc-

trine already existing distinctions, exceptions, definitions, and such that

W H A T IS A F A T W A ? 1 6 5

are relevant to unforeseen situations?9 This difference might seem trivial.

But the implications of his metaphor of construction show up later in the

article and cause some confusion. O n the one hand he says that jurists had

to reconcile their own views to the existing authoritative opinion of the

school:

Unlike modern legislative bodies that have the authority to abolish existing

law, the Muslim jurist, particularly under the regime of taqlid, had to con-

tend with the putative fiction that existing law represented the eternal will of

God . . . Al-Qarafi's task is not as simple as re-interpreting the Qur'an and ha-

dith.... His task, rather, is to reconcile his position in the present dispute with

the standing rules of the Maliki madhhab [school], i.e., to cast his position in

terms that highlight its genetic links to the Maliki legal tradition.10

Yet on the other hand he talks about circumventing the established views

of the school:

when it came to professing his views on a particular legal issue, [the jurist under

taqlid] had now to recognize the mashhur [the going or established opinion]

of the school at large. And where he found his view to be at variance with the

going opinion, he had to find a way to circumvent the incumbent view or to

dislodge it, i.e., by arguing that some other view was more deserving of mash-

hur status, or that more jurists had actually endorsed a competing view, or that

there was in fact no "going opinion" on this particular issue and that some other

source . . . was dispositive of the matter.11

B u t which one is it? D o e s the muft i reconcile his view to the estab-

lished doctrine or does he reconcile doctrine to his already established

view through construction and circumvention? Jackson, it seems, finally

goes with the latter, as he writes toward the end,

The ultimate aim behind the crafting of a fatwa was not just to introduce new

and innovative ideas but to gain the backing of the school at large . . . when

faced with new circumstances or rules that no longer serve their originally con-

templated function, Muslim jurists were powerless to abolish existing law. In-

stead they had to look for ways to circumvent it or mitigate its more stultifying

effects.12

In other words, the authority of an innovative fatwa is ultimately got-

ten through some kind of manipulation or deception. Thus at one point,

1 6 6 CHAPTER THREE

Jackson notes that "Al-Qaraf i shows himself to be a clever and hard-nosed

advocate who understands not only the legal but also the psychological

dimensions of his craft. . . . Indeed, one gets the sense that [the] appeal

to emotion and personal interest was integral to al-Qarafi's strategy over-

all" (45)-

To depict the authority of fatwas as essentially manipulative or decep-

tive is to offer an impoverished explanation of it. Neither can it speak to

the differences in authority I observed between the law courts and the

Fatwa Council. Moreover, such a picture effects a sharp separation be-

tween the mufti and his doctrine and renders his relationship to it primar-

ily in terms of instrumentalism. In treating interests as essentially given,

this view of the fatwa precludes an exploration of how interests (and de-

sires and passions) might be constituted and shaped through the doctrines,

the practices, and the broader tradition to which the mufti and the fatwa-

seeker adhere.

Fatwas, however, need not be construed as primarily expressions of

traditional creativity in the face of constant change. The critical response

that led to this framing shares deeper, questionable assumptions with the

understandings it critiques. These assumptions, moreover, are widely

familiar beyond the specific literature on the fatwa. A b o u t temporality,

imitation, creativity, and tradition they facilitate particular confusions

about the concept of authority, and hence, the authority of the fatwa more

specifically. I would like to briefly address these assumptions, to show how

they narrow and confuse our understandings of authority, and to open up

different questions about the fatwa untethered from concerns over doc-

trinal creativity.

The first assumption is that tradition, rooted in imitation and emula-

tion, is necessarily antithetical to creativity. But is it right to suppose that

creativity and imitation are necessarily opposed? Might it not take great

creativity just to do a good imitation, as in the case of a comedian who

mimics a president or famous political figure, or an actor for whom it may

take creative skill just to follow a script well, to surrender himself to it?

Here the line between creativity and imitation blurs into more complex

criteria for the assessment of apt performance. Such blurring, however,

is not restricted to the stage: it is also endemic to our more general cri-

teria for deciding what is essentially creative and what is imitative, as the

continual debates in copyright and patent law show.13 If the line between

creativity and imitation can blur so easily, if the criteria for them can be so

thoroughly contested, can it be so easy to suppose that they are necessarily

W H A T IS A F A T W A ? 167

opposed? And, by extension, to suppose that the fatwa creatively (or even

strategically) changes old doctrine under the guise of maintaining it?

Let me push this point further, to question a second, more deeply held

assumption: that creativity is necessary for a tradition to adapt through

time. Is this so obviously true? The issue is not whether or not creativity

might be needed in particular cases or situations. Rather, my question is

about the idea that creativity is a general requirement for traditions to

survive and remain relevant over time. I submit that this idea arises out

of crucial assumptions about time itself, that is, about the nature of the

past, the future, how they are connected, and how they orient the present

and its senses of stability and flux. Thus there is the assumption of a fun-

damental rift between the past and the future, in that the future generally

brings on fundamentally new situations and circumstances, not just dif-

ferent from past ones, but always potentially containing elements that are

irreducibly different. A n d thus in order to fully comprehend and properly

adapt to such situations, one cannot rely fully on the settled past. To rely

only on past ways of thinking, to use only analogies or exemplars from the

past, is to risk missing what is irreducibly different in the present and the

future. A n d that, in turn, is to risk becoming increasingly irrelevant as ir-

reducible differences accumulate over time. We are all familiar with these

assumptions, associated as they are with a modern historicity.14 They have

shaped our dominant conception of tradition's central dilemma: that its

piety to the past has stifled its creativity, which thus renders it increasingly

irrelevant in the face of the future's incessant novelty. But for our analyses,

we should be wary of replacing a piety to the past with a piety to the new

and instead look more carefully at the temporal assumptions expressed

in different traditions and the temporal experiences of those who adhere

to them.

To take just one example: Islamic scholars debated for several centuries

(up until the eighteenth) the question of how, and whether, acts enacted

before the arrival of Qur'anic revelation could be categorized under the

rubrics it provided. Questions about retroactive application would cer-

tainly make sense after the initial founding and early expansion of Islam.

Under the temporal assumptions commonly associated with a modern his-

toricity, however, it is hard to see why such a debate would continue on for

so many centuries afterward. It seems quite the reverse of today's Islamic

debates, which arose only after the eighteenth century, about how and

whether the revelation and its categories apply to acts, especially modern

ones, enacted after it. Kevin Reinhart,15 who discusses the ancient debate

C H A P T E R FIVE

extensively, argues that it was a means for taking positions on controver-

sial issues within Islamic tradition that could not be approached directly.

But that this was done with reference to acts enacted before revelation

and not after it shows that different temporal assumptions were at work.

One well-established position in this long-standing debate was that past

acts could not be categorized under any of the revelation's categories and

so had a fundamentally indeterminate status. This reverses the temporal

assumptions of modern historicity, for here it is the past that is potentially

indeterminate, while the present and the future are essentially settled. Un-

der such assumptions, other skills and capacities might be prized over and

above creativity.

Notably, among the muftis I talked with, creativity was never a qualifi-

cation for the Fatwa Council. Rather, advanced age and experience was.

Might the reason for this be that age and experience give one an ability to

discern, through obfuscating details, the fundamental similarity of present

situations to past ones? Indeed, I frequently encountered the argument

that human beings, in their relationships—as friends, lovers, as enemies,

as kin, and merchants—have never really changed, and so the Shari'a con-

tains all that is needed to properly guide these relationships. Different

temporal assumptions might therefore lead one to highlight and value the

skill of discernment, and the capacity for memory, over and above creativ-

ity.16 A t issue here is not their truth, but how they constitute and relate

the past to the future, the skills and capacities of the self they elicit, and

the ways they orient people's temporal experiences and interpretations of

events.

It may surprise readers to learn that the word creativity was coined

only in the nineteenth century, first in English, from which it passed on

to French and German. While certainly many of the conceptual associa-

tions referenced by the newly coined term existed beforehand, its coinage

marks its rise as an independent, general value, abstracted from the specific

practices that previously shaped its particular uses and values. A s John

Hope Mason shows in his genealogy of its emergence,17 it was connected

to modernist conceptions of time and was identified with a particular no-

tion of f r e e d o m — o f a primarily aesthetic k i n d — n o w widely considered

integral to the self and its true expression.18

In other words, the idea that creativity is requisite to a tradition's suc-

cess is a product of specifically modern assumptions about time as well

as the self and its essential freedoms. They are, however, neither as self-

evident as is often surmised nor the only ones to which people adhere.

W H A T IS A F A T W A ? 169

A s noted above, contemporary Islamic debates that presuppose a future

of continual novelty coexist with understandings of the present and fu-

ture as essentially settled.19 We should therefore be alert to the different

temporalities expressed within a tradition, the ways they coexist and are

mediated, the range of skills and kinds of selves they valorize, how they

orient people's temporal experience of events and criteria for change, and

be careful not to analyze other traditions from the grounds of so narrow

a set of assumptions about time and self, as this emphasis on traditional

creativity seems to express.

These assumptions, moreover, tend to obscure our understandings of

authority, lending themselves to a ready conflation between authority

which is rooted in the past and the repression associated with authoritari-

anism. For time's incessant novelty ensures that any authority rooted in

the past will eventually become out of joint with the circumstances that

gave rise to it, and to which it may have been at first appropriate. To keep

authority appropriate to its circumstances requires that it always be subject

to the questioning and creative freedom needed to adjust it. A n y author-

ity that remains rooted to the past in the face of changing circumstances

is therefore one that inappropriately represses the creativity and freedom

needed to adjust or entirely change it. In this line of thinking, modernist

assumptions about time and creativity combine to collapse past authority,

with its emphasis on emulation and repetition, into repression of the self's

essential creative freedom.20

Letting go of these assumptions will help us ask very different ques-

tions, both of the fatwa and its authority. If it is not that the future neces-

sarily brings on radical novelty; if creativity is not necessary to supplement

the accumulated wisdom of a tradition, then the fatwa cannot be so self-

evidently cast as the crucial creative agent of Islamic tradition's survival

and success. Especially if the very criteria for what counts as an innovation

and what counts as an imitation are not fully clear and can be thoroughly

contested. But what, then, are the criteria for apt performance in the prac-

tice of the fatwa, and how are they variably related to the aims and goals

constituted through and within Islamic tradition? Also, if we no longer see

the fatwa as essentially an instrument of doctrinal change, then in what

ways is doctrine involved in the practice of the fatwa? A n d how might this

practice help constitute and shape the interests, desires, and fears of the

mufti, as well as of the fatwa-seeker? If not the temporalities assumed of

a modern historicity, then what are the temporalities involved in the prac-

tice of the fatwa, and how do they relate the mufti to the fatwa-seeker, and

1 7 0 C H A P T E R THREE

both to the broader tradition they inhabit? In other words, what are the

modes and structures of the fatwa's authority?

These are some of the questions that I would now like to address, in

an admittedly tentative and cursory way, by turning to the Fatwa Council

of Al-Azhar. The Fatwa Council gives us the opportunity to observe the

construction of authoritative relations. I think the ethnography here will

show that the vitality and authority of the fatwa lies not in its reforming

of doctrine to fit novel circumstances but in the ways it connects and ad-

vances the self to and within the practices and goals that constitute Islamic

tradition more broadly. So let me now turn to some of my observations on

the Fatwa Council.

Dimensions of the Everyday Practice of the Fatwa in the Azhari Council

One thing that became immediately apparent during my fieldwork in the

Fatwa Council was that different answers were often given to people with

seemingly similar questions and problems; more interestingly, the same

mufti often reacted differently to people with the same question even if in

the end he gave the same answers. Sometimes he would scold, sometimes

he would joke, sometimes he would counsel, and sometimes he would act

hesitant. This perplexed me. I asked muftis how they came up with their

answers. They said that a thorough knowledge of the Shari'a was neces-

sary; that even those concepts within the Islamic Shari'a that were con-

sidered marginal and generally not recommended had to be known. The

reason for this, I was often told, was that the Fatwa Council, and the giving

of fatwas in general, existed in order to facilitate people's affairs (t'mashi

umürohom). Sometimes, they said, it was necessary to use a marginal con-

cept or ruling from the Shari'a in order to do just that. Different muftis re-

iterated to me several times that the purpose of the fatwa and the council

was to facilitate people's affairs, or to help them get on with their affairs.

Sometimes this was cast in terms of finding a solution.

When a person came with a question, the mufti would very often ask

more general questions about the person's situation before he formulated

an answer. Many times I would see the mufti listening carefully, and allow-

ing the questioner to talk at length. There was a sense that he was fashion-

ing his answer to the specific situation of the questioner. This may have

partly explained why sometimes different answers were given to similar

questions.

W H A T IS A FATWA? 171

Questioners well understood the sense that the purpose of the fatwa

is to facilitate people's affairs. Often, when couples were trying to recon-

cile themselves after a divorce, they would bring their children with them

to the council and use them to make an appeal to the mufti. Consider

the following case: a couple came in with their little daughter and the

wife's brother. They had been waiting for some time for their turn with

the mufti, talking and joking among themselves in an easy, lighthearted

manner. When it came their turn, they told the mufti that the husband

had pronounced divorce upon the wife five times, well beyond the three-

time limit. The mufti was surprised, and in a tone as lighthearted as theirs,

asked them how they were living. They laughed; the husband said that he

had pronounced the first one and then reconciled her to him; but that after

the second he had not done this. Without having so reconciled, he later

pronounced the third, fourth, and fifth, and that she was now living with

her brother. The mufti responded that they could indeed reconcile, since

she wasn't really his wife upon the third and subsequent pronouncements.

H e took out a Qur'an, and had the husband put his hand on it and repeat

after him the customary formula for reconciliation. However, the mufti

also interjected an oath that the man had not gotten together with his wife

since the second pronouncement. The man hesitated, stuttered, and then

sat quiet. "What's wrong," asked the mufti, "why did you suddenly get so

quiet?"

" E h — I m e a n — w h a t do you mean 'get together'?"

Another mufti nearby who had heard his question called out, "what

do you think it means? Yes, it means sex (al-nikäh). That's considered

reconciliation too." The man's face had turned serious; I noticed sweat on

his forehead. The mufti sighed, "It's too bad, at first I was happy for you,

but now there is nothing I can do for you." The mufti stood up to meet a

colleague who had just entered the council, during which the husband and

the wife eyed each other nervously. Both were at a loss. She turned to her

brother, who tapped the mufti on his shoulder and said, "Please, find them

a solution." The mufti responded that he could not sanction their living to-

gether wrongly, for then he would bear the responsibility for their wrong.

Her brother implored him, "Please, if only for the little girl," pointing to

the daughter, who was playing about, too young to understand what was

happening. The mufti thought a while. "Were you on your period when he

pronounced any of the divorces?" "Yes," she nodded vigorously.

" W h e n ? "

She replied that this was during the third and the fourth pronounce-

ments. He slid the Qur'an from the husband to her, told her to swear with

1 7 2 C H A P T E R THREE

her hand upon it that she was on her period during these pronouncements.

She hesitated.

"What n o w ? — y o u must be lying," exclaimed the mufti.

"No, no just unsure," she laughed, and explained, "he pronounced di-

vorce and then a few drops appeared in the afternoon."

"Look," said the mufti, "I 've opened the door for you, it's up to you

now."

Her brother suggested that she swear, if only for the child's sake. She

swore. Afterward, the mufti had the husband swear never to pronounce

divorce again and reconciled them. In this case, as in many others, a child

was a pretext for motivating the mufti to find a solution.

During my fieldwork in the council, I met an Azhari graduate and

scholar of the Shari'a who had spent some time in the United States. I told

him about my fieldwork. He noted to me that the way that the muftis inter-

acted with the questioners was an important dimension of the fatwa, and

he began to talk about how differences in such interaction involved what

he called a pedagogic element. Tarbawayya is the word he used, and it

usually means education, cultivation, upbringing, and refinement. He said

that the shifting use of fear, laughter, and rebuke was part of a pedagogic

process to make them better Muslims.

That seemed consistent with much of what I saw in council. Once, a

couple entered the council and sat before the mufti. The husband had

pronounced divorce upon his wife several times; they had talked to a mufti

about it before, but he had sent them here to ask. The mufti began to ask

the details of each pronouncement: when, where, the state of the woman

and the man at these times, and other details. During the discussion of

one of the past pronouncements, the wife noted that the mufti who rec-

onciled them at the time stated that this was the last reconciliation that

could be done, and that any subsequent pronouncement would mean an

irreconcilable divorce. The mufti did not answer her at first, asking more

about the details. A few minutes later, she repeated this statement. Then

he responded: "understand that what the mufti said may have just been

threats so that your husband won't do it again." A f t e r discussing more of

the particulars, the mufti came to the conclusion that none of the pro-

nouncements were valid. "She is your wife," he concluded.

I discussed the question of divorce with the muftis, since it came up so

often in the council. One told me the story of how some of the practices of

reconciliation came about. He told me that during the time of the Prophet,

a man had sworn divorce upon his wife. Thus divorced, the woman went

W H A T IS A FATWA? 1 7 3

to the Prophet to know if there was anything that could be done to rec-

oncile them. He said no, that there was nothing that could be done. But

the next day she came back, asking him to find a solution for their situ-

ation. He replied that he had none. She returned yet again on the third

day, but again, nothing. O n that day, however, after she left, a verse of the

Qur'an referring to the incident was revealed, saying that G o d had heard

the complaints of the woman to the Prophet, and had provided the follow-

ing solution: that for the husband to reconcile her to himself he must free

a number of slaves, and if that is not possible, then to fast for a period of

sixty days, and if that is not possible, then to feed sixty poor people. That

was the least one could do.

This was revealed, said the mufti, in order to "discipline their tongues

(1addib lisänahom), and this was among the hudüd Al lah (limits of God) . "

Hudüd is usually referred to in terms of punishments—but here the mufti

associated it not with punishment but with disciplining. That hudüd was

not here associated with punishment is indicated by the rest of the story:

the man in question had no slaves, was not in a position to fast for such

a long time, and had no money to feed anyone. So the Prophet gave him

a bag of dates and told him to spread them among the poorest. The man

replied that there was no one poorer than himself and his children. So the

Prophet told him to spread the dates among his children. That was consid-

ered sufficient to reconcile his wife to him.

It is noteworthy that divorce, though it is permitted in Islam, is consid-

ered among the most reprehensible of permitted acts (makrüh). A s such,

muftis were interested in preventing people from pronouncing it again.

But more, they were always finding ways to encourage people to perform

the better of actions. Thus, in another case, again a matter of divorce, a

mufti counseled the couple for a long time, discussing the virtues of pa-

tience and forbearance, even and especially in the difficult times they had

claimed were an excuse for their marital conflicts. The husband was finally

made to utter the words of reconciliation, repeating the words told him by

the mufti. In this case the mufti had him put his hand on the Qur'an and

told him to swear that he would not pronounce divorce again. A s the man

began to swear, the mufti suddenly withdrew the Qur'an: "now don't swear

if you can't be sure that you won't do this again." The man became anxious,

and insisted on swearing; the mufti relented, and they continued, but he

added words to the effect the man would perform all five daily prayers.

The husband, after repeating these w o r d s — a promise to pray, began to

cry silently; his voice shook as he finished, lips trembling, repeating the

1 7 4 CHAPTER THREE

mufti's words. The mufti in this instance was using the event of reconcilia-

tion to extract a promise from the husband to perform his prayers.

Questioners themselves are concerned with the performance of better

actions over worse ones. Once, a young woman came and sat before the

mufti. She told him that she was twenty-five years old, but that her hus-

band was much older than she. She was unhappy with him and more and

more she was starting to see him like a father or older uncle. But more

than this, he wanted to do something that was forbidden, and that would

make their marriage forbidden.

"What," asked the mufti.

"He wants to marry my aunt." She used the term 'ammity, which sig-

nifies that it was her aunt on her father's side. Such dual marriages are

indeed forbidden in the Shari'a.

She continued, "I don't know if this is something that has come from

God, but I got to know my cousin (this was the said aunt's son) and he has

made me feel my youth (khalläni ahis bi shabäbi)." She didn't know what

to do and wanted to do things right by God. Thus she wanted to know

whether she should divorce her husband and marry her cousin, or whether

it was better for her to persevere with her current husband.

The mufti replied that she should divorce her husband and marry her

cousin.

"But shouldn't I persevere," she asked again with emphasis.

No, he replied, it was better for her to go and marry the cousin. With

this she thanked the mufti and left the council.

Interestingly, there were cases where muftis counseled people to do rep-

rehensible (makrüh) acts to prevent them from doing forbidden (haräm)

acts. There was the instance of a young man—apparent ly an orphan, a

third year student at A l - A z h a r University, who had committed adultery

with the same woman for the second time. He had come in before, after

the first time, to learn how he could be forgiven for his act. Now he said he

wanted to be whipped, which is in accordance with the Shari'a. He sat face

down, looking dejected as the mufti rebuked him. " W h y do you go and see

her? Why do you even go to the area where she lives? You should never

go there." He replied that she lives near the university. The mufti shook

his head, thought a while, then said, "then you have to marry her. There's

no other solution." H e replied that she was already married. " H o ! " the

mufti exclaimed, "you've put yourself in a mess!" The mufti sighed loudly,

covered his head with his hands, and sat silently thinking. The student

repeated that he wanted to be whipped. The mufti then told him that he

W H A T IS A FATWA? 1 7 5

could do one of two things: first, he could send him to the local police

where they would rough him up. The student looked up; his eyes widened.

Or, he could have him sign a statement promising not to commit this again,

and that if he did he would submit himself to the local police. The student

seemed to like this second option. The mufti told him to perform ablu-

tions, and they prayed the noon prayer together. Afterward, the student

signed the statement and got up to leave. A s he reached the entrance, he

turned around. "The thing is," he said, "I don't have wet dreams."

The mufti replied: " look, if you see that woman again, or any other

woman that excites you, go home to the bathroom and do the secret thing

(al-'amaläya-l-sirrayya). The young man was surprised, "I thought that put

you in hellfire!"

"It's not good, but it's not as bad as committing adultery."

A n official of the council who had been listening to their conversation

interjected: "Yes, of course! These desires are natural to the human being.

G o d created the human being in this way, and they strongly influence him

(tatahakkim fihi)." He continued, looking at the mufti and me, "Praise

God, I was married early; and when I see a woman that excites me I go to

my wife immediately—I run to her!"

The mufti concurred; "so when you see a woman that excites you, go

and masturbate, that's better for you."

"But only if you can't hold it!" shouted the official as the student turned

around to leave. In this case, the mufti didn't counsel a person do the right

thing, but to do a bad thing to prevent a worse one.

This takes on particular significance in light of the fact that a mufti

is understood to share a measure of responsibility for the fatwas he dis-

penses with the questioners who then enact his decisions. If a mufti issues

an incorrect fatwa then he will bear the responsibility for the enactments

of the people to whom he issues it; a responsibility he will face not in this

life, but in the hereafter. Such responsibility is considered so great that

some sheikhs I spoke to preferred not to work in the Fatwa Council or

provide fatwas generally, even though the latter was considered a general

requirement of their profession.

The issue of responsibility and its allocation arises often in the Fatwa

Council. I saw the case of a couple who had been married for four years

and had children, when they discovered that they had been breast fed by

the same woman. Children breast fed by the same woman are considered

like siblings and cannot marry each other. They wanted to know if their

marriage was legitimate, and what would happen to their children if it

1 7 6 CHAPTER THREE

wasn't. The wet nurse, who was with them in the council, was very old and

claimed to have a failing memory, so she could not remember how many

times she had done so. The mufti said that she had to go back and try to

remember if it was more than five times, and that the responsibility was

upon her. The couple was anxious about how they should conduct their

lives until she remembered for sure; he told them to live as they had been,

since they still didn't know. He also assured them that there would be no

shame ('ayb) on their children, no matter what happened. The sister of

the wet nurse was also with the couple; a minute after they left she came

running back in. She told the mufti that she wanted to make sure there was

no responsibility upon her. She said that she remembered that her sister

breast fed them a lot, but still wasn't sure how many times. The mufti then

told her that there indeed was responsibility upon her, and that she and

her sister had to sit down and decide the issue among themselves.

It is worth noting here that the couple was counseled not to change their

married conduct until it was ascertained whether or not the wet nurse had

fed them both. Neither they nor their marriage were put under suspicion,

with all the attendant behavioral changes that typically pertain to suspects.

This was one example of how suspicion was lacking in the council, as op-

posed to the law courts. Furthermore, there seemed be to no urgency on

the part of the mufti to find out the truth of what had happened, even

though he later expressed frustration at what he saw as the ignorance and

forgetfulness that might bring down this couple's marriage. Although he

was certainly concerned that the truth be eventually ascertained, he was

equally concerned to allay the couple's anxieties about how to act during

the interim period of doubt, as well as the status of their children.

In some of the incidents described above, more than one mufti or

council official got involved in a particular fatwa, and more general dis-

cussions of how to properly act ensued. This might explain something I

have wondered about, and which I noted in chapter 3: the question of why

such intimate matters—matters that are widely regarded as such by Egyp-

t ians—are spoken about so openly in the council. Talal Asad, in response

to my observations about this openness, suggests in one essay that this

is because the discussions are about general standards of conduct.21 His

suggestion might be borne out by a common refrain I heard in the council

during those rare instances when shyness to speak out did arise: "there is

no shame in religion (la hay a fi-l-din)." In many instances the mufti would

counsel the questioners about virtues like patience, forbearance, recon-

ciliation, and then turn to me and ask, "isn't this so?" In other instances,

W H A T IS A FATWA? 1 7 7

I would see what I thought were two or three muftis and council officials

conferring with a questioner about a matter, only to find out that there was

only one mufti, while the rest were just people waiting to ask a question.

This sometimes made the Fatwa Council a place of broad discussion on

proper conduct.

The incidents I have recounted so far make clear that the fatwa, as

practiced in the Fatwa Council, is not mainly about dispensing points of

correct doctrine. Rather, it is more about what the mufti is able to say to

the questioners based on the information they have given him, and within

the range and limits of doctrine as well as overall conceptions of an ideal

Muslim self, so that they can go on with their everyday lives. In a sense,

just as the questioner doesn't initially know what to do, which is why he

goes to the mufti in the first place, the mufti also, initially, doesn't know

what to say, which is why he typically inquires into the facts of the situa-

tion. One could say that what reigns in the Fatwa Council is a condition of

perplexity and uncertainty; perplexity of the questioner about what to do,

and the uncertainty of the mufti about what to say about what to do. A n d

yet this uncertainty is not the same as the suspicion found in the courts.

The mufti conducts his inquiry in order to find the facts of the situation,

but not mainly to ascertain their truth. Responsibility for their truth is

typically borne by the questioners. The mufti takes the information his

questioners supply on good faith, knowing that they bear final responsibil-

ity for it.

This raises another important point. It matters how the mufti conducts

his inquiries. The inquiries themselves are not, for the most part, routin-

ized, and their direction often depends on the information supplied by

the questioners. Nevertheless, there are certain qualities or virtues he is

expected to display in the process, consonant with his position as a mufti.

His manner must reflect his experience with the affairs of life, his virtues,

and his knowledge. He is supposed to be patient, humble, and to display

compassion or a merciful attitude. He is not to be rude, loud, or insulting

even if he scolds someone for certain actions (although righteous anger

seems to be acceptable).

Let me illustrate this important point with one more example: two men

sat in front of a mufti. O n e had pronounced divorce upon his wife during a

quarrel and wanted to reconcile her to himself. The mufti learned that the

man had pronounced divorce upon his wife nearly ten times in the course

of their fight. A t this the mufti became hesitant, unsure of whether it was

possible for the two to be reconciled. The other man, who turned out to

I 7 8 C H A P T E R FIVE

be the questioner's brother, spoke up. This had happened to him before,

he said, and he knew that multiple divorces pronounced during a single

sitting only counted as a single divorce. The mufti remained unsure. He

said that ten times was too many, and that reconciliation may be impos-

sible. The brother, however, continued to insist that this counted as only a

single divorce. A t this the mufti stood up, told them to wait a moment, and

left to confer with two other muftis in the council. When he came back he

declared that indeed the man could be reconciled with his wife. A f t e r they

left, the mufti turned to me and articulated his disagreement: repeating a

divorce in a single sitting indeed counts as a single divorce, but from his

perspective this rule was only about repeating divorce up to three times

in a single sitting. Yet the questioner had repeated it ten times, which was

more than three times the three-time limit for a single sitting. That, he

said, should count as three divorces, making it impossible for the couple

to reconcile. "But," he shrugged, "differences in the umma (Muslim com-

munity) are a mercy [from God]," quoting the well known hadith of the

Prophet to me as he turned to the next questioner.

This example highlights a number of qualities that muftis ought to dis-

play in their interactions. First, the mufti demonstrated a level of humility

in the face of the confident assertions of the questioner's brother. Instead

of imposing his view upon them as the more knowledgeable one, the mufti

conferred with others to make sure. Second, it could be said that he dis-

played a compassionate or merciful attitude by going with the other muftis'

views even though they contradicted his own. In this case, the mufti could

have asserted that reconciliation was impossible. But it is fair to say that he

could not have made that assertion in good faith given his own doubts at

the brother's insistence on the possibility of reconciliation. That good faith

was demonstrated by the mufti's conferring with other muftis about the

matter, which changed what could be asserted by him in this case, about

whether or not reconciliation was possible. I suggest that this condition of

good faith is an important dimension of the authority of a fatwa. When a

mufti did not display the expected decorum, the questioners, other muftis,

or people around him could rebuke him. I saw this happen in a couple

of instances, when muftis exploded in frustration at the frequency of the

questions and the kinds of problems they had to address.

We could therefore say that one important condition affecting what the

mufti can assert to the questioner is a condition of good faith. The mufti

takes the information the questioners supply on good faith; that he takes

it in good faith is demonstrated in the expected virtues he displays in the

W H A T IS A F A T W A ? 179

process of conducting his inquiries and finally dispensing his fatwa. What

the mufti can say and how he gets to saying it cannot be considered apart,

particularly from the standpoint of the fatwa's authority.

Thus, rather than saying that the fatwa is mainly about finding points

of correct doctrine, it is more appropriate to say that the fatwa is about

what the mufti is able to say, in good faith, to questioners about what they

should do, within the range and limits of doctrine as well as overall con-

ceptions of an ideal Muslim self, so that they can go forward with their

everyday lives.

The Care of the Self

I have described the incidents above in order to highlight several aspects

or dimensions of the practice of the fatwa: its pedagogical dimension; its

broad-ranging discussions of proper conduct; its understood point as the

facilitation of people's affairs; its conditions of good faith; and its sense

of shared responsibility between muftis and questioners, that is, the fact

that the former bear a level of responsibility for the fatwas they dispense.

These elements, taken together, suggest an approach to understanding

the fatwa's authority. Surely, fatwas are heterogeneous things; given their

highly plebian character, it would certainly be a mistake to reduce them to

a single thing, whether this be a form of ijtihad or a form of pedagogy. But

I would like to suggest that it would be useful to think about what goes on

in the Fatwa Council of A l -Azhar by adapting the notion of "the care of

the self."

A s we know, Foucault has elaborated the notion of "care of the self"

by describing a variety of ancient practices in great historical detail. His

concern over such practices arose out of a set of problems within liberal

thought and practice that he identified and tried to find a way out of.

While liberals pride themselves on their incessant vigilance against power

and its abuse, what Foucault showed—in one of those remarkable ideo-

logical inversions that characterize his w o r k — i s how that vigilance against

power has itself become a mode of power, one that is far more efficacious,

subtle, and wide ranging than any before it, one that entrenches itself pre-

cisely through its form of individuation. Consequently, Foucault tries to

find different forms of individuation—through alternative practices of the

s e l f — i n an attempt to refuse the kind that is brought on by, and is a ve-

hicle for, the historical mode of power he analyzed so acutely. Since power,

i 8 o C H A P T E R FIVE

as Foucault saw it, is intrinsic to the plurality of our relations—with each

other and our own selves—it is also inseparable from our ethical relations.

To practice alternative forms of the care of the self is both a way of refus-

ing particular modes of power and acting ethically in the face of them. For

Foucault, then, ethics is necessarily bound up with the problem of finding

freedom.

I propose to recruit this ethical notion of the care of the self to another

problem, which, though not necessarily incompatible with Foucault's, nev-

ertheless remains unspoken within it. It is the problem not of freedom, but

authority, of how selves are maintained and advanced within the traditions

to which they bear a sense of obligation, or put alternately, how a tradition

is inherited by its adherents.22 This is a question, I think, that has rarely

been explicitly asked or explored in the literature on the fatwa, or as a

general question for the anthropological exploration of Islamic authority.

I suggest that the practice of the fatwa be understood as a mode of the care

of the self, as a practice by which selves, in the multiplicity of their affairs,

are maintained and advanced as part of Islamic tradition. In this, the au-

thority of the mufti is that of a guide. We can put it this way: a typical ques-

tion in the fatwa has the form: "I don't know my way about." Muftis are

ones who have the skills to find their way about. Although the relationship

between mufti and questioner is an asymmetrical one, muftis, as guides,

share responsibility with the questioners they guide. It is a shared respon-

sibility rooted in reciprocal conditions of perplexity and uncertainty—the

fatwa-seeker's perplexity about what to do, and the mufti's uncertainty

about what to say. In navigating these perplexities and uncertainties, it

could be said that mufti and questioner find their way together.

A s the ethnography here shows, the fatwa is involved in a practice of

tarbawayya—ethical cultivation, that is highly attentive not just to ques-

tioners' particular situations but also their weaknesses, drives, desires,

hopes, fears, and suffer ings—as in the young woman who desired her

equally young cousin over her aged husband, the student who couldn't

have wet dreams, the married couple who now faced the prospect that

they were effectively siblings, and (to recall an incident from chapter 2)

the man who felt betrayed by the knowledge of sexual violence that his

family had withheld from him. A well-known story has it that a mufti was

once asked if a killer might repent and receive forgiveness. He replied

that it was not possible. Asked the same question by another man, he re-

plied in the affirmative. When confronted by the contradiction, the mufti

said, " A s for the first—I saw in his eyes a desire to kill [someone] and I

W H A T IS A F A T W A ? 1 8 1

prevented him from it; as for the s e c o n d — h e came in surrender, having

already killed [someone] and I did not cause him to despair."23 T h e story

shows how attentiveness to the range of emotion and desire is necessary to

the correct practice of the fatwa. Moreover, the idea of the fatwa as a form

of the care of the self emerges clearly from it.

The notion of the fatwa as a form of the care of the self falls in line

with much emerging ethnography of contemporary Islam in Egypt and

elsewhere. Inaugurated by the work of Talal Asad and developed further

in the ethnographies of Saba Mahmood and Charles Hirschkind,24 the em-

phasis has been to explore and detail the diverse practices of ethical cul-

tivation that undergird what has often been called "the Islamic Revival"

(Al-Sahwa Al-Islamiyya). This emphasis also falls in line with my earlier

discussions of how hisba, in its classical Shari'a elaborations, was part of a

set of what I called "techniques of moral inquiry," involved in practices of

personal and collective critical moral engagement (and safeguards) aimed

at cultivating those virtues deemed central to Islam. However, the practice

of the fatwa in the council, though similar, nevertheless differs from the

ethical practices Hirschkind and Mahmood describe and the techniques

of moral inquiry I discussed earlier in at least one significant way. These

practices and techniques all imply a constant vigilance over the s e l f — b y

the self and by o t h e r s — i n order to cultivate and sustain the requisite vir-

tues. (That is one reason why they came with careful safeguards against

the undue suspicion that would undo the very virtues they aimed to cul-

tivate.) The fatwa of the council, however, implies no such constant vigi-

lance or surveillance of any sort. There is no concern for follow-up, even

though the council is a state institution. That is to say, though the fatwa

has a crucial pedagogic dimension, aimed at promoting better conduct

and cultivating Muslim selves, it is not conceived as a form of sustained

disciplinary exercise. Rather, it aims to achieve its goals by "facilitating

people's affairs" on those occasions when they become blocked, easing

the way for them to move forward. This is central to the apt performance

of the fatwa.

Aptly performed, the fatwa is not just scrupulous to past doctrinal texts

but is also attentive to one's place in the life cycle, attuned to the imme-

diacy of one's present circumstances, and oriented by a future defined by

the exemplary character and life of the Prophet of Islam. The mediation

of these temporalities is crucial to the promise of guidance intrinsic to

the fatwa, and thus, part of the structure of its authority. They tend to be

obscured, however, by modernist temporal assumptions.

1 8 2 C H A P T E R THREE

Concerned with the issue of tarbawayya, involved in "facilitating peo-

ple's affairs" with the mufti as guide, the fatwa is a practice that puts the

questioner on a journey of ethical cultivation. Speaking on issues of tar-

bawayya, one sheikh related to me a famous hadith about a man, who,

having killed ninety-nine men, asked a sheikh if there was any forgiveness

possible for him. When the sheikh replied that there was not, the man

killed him too, making him the hundredth. Later, he asked another sheikh

the same question, whereupon the sheikh responded that it was possible

only if he left his community and went to live in a particular town of rightly

guided people (salihin). Following the sheikh's words, he set out toward

the town, but died along the way. A t his death, both the angel of mercy and

the angel of punishment tried to claim him. To resolve their dispute, they

agreed to measure the distance he had traveled. If he was closer to the

town, the angel of mercy would claim him; if closer to the community he

left, the angel of punishment would take him. A s they measured, however,

G o d stretched the earth so that he would end up just closer to the town, to

benefit the angel of mercy.

This image of the fatwa as facilitating a journey takes us far from the

conventional view of it as primarily a doctrinal pronouncement and an

instrument of doctrinal reform. It also helps us see beyond the idea of

Islamic tradition (and its authority) as stuck between its past and a future

of incessant novelty. This is because it shows us how the tradition moves

toward a future, in the way that it puts a self on a path toward a final des-

tination. One's place on that path, however, is always rendered uncertain,

but this is not because endlessly, irreducibly " n e w " circumstances bring

on unforeseeable change. Rather, it is because the familiar friction that

arises from the heterogeneity of life's affairs, of being young and growing

old and sick, of dying along the way, nevertheless renders obscure whether

one has ever fully arrived at a given place on the path, or whether one is

even still on it. Here it is not the creativity of the fatwa that matters, but

rather its capacity to enable a self to stay and advance upon an already

defined path toward an ideal Muslim self. A n d that capacity is found not in

the pronouncement of doctrinal principles and rules for how to act, not in

reforming them to fit modern times, but in the skill of using them discern-

ingly to "say the right words at the right time"25 for the person who seeks

guidance. It is the promise intrinsic to this capacity to guide, the mutual

uncertainties and responsibilities involved in it, the range of emotion and

the temporalities it mediates, and the future(s) that it aims to facilitate and

secure that structures the fatwa's authority.

W H A T IS A F A T W A ? 1 8 3

Conclusion

I started this comparative inquiry into the personal status courts and the

Fatwa Council by asking how secularism, as a questioning power, works

through the modern legal conditions upon which it depends. This led me

to ask two questions about the rule of law and the Shari'a. The first was:

what is the peculiar form of entrenchment that allows one to say in the

same breath that the law as a rule does not bring justice and that justice

is generally inconceivable without law? A n d the second was: how has this

entrenchment configured the authority of Shari'a practices under the rule

of law? I hoped to answer these questions by looking at two, more spe-

cific, yet related ones concerning the personal status courts and the Fatwa

Council: the question of why the courts exhibit so much suspicion and

distrust, while the council exhibits so little, and the question of why the

courts have so little apparent authority while the council seems to have so

much. These were the questions that guided the explorations throughout

these last three chapters.

In response to them, I argued that the courts and the law are subject to

a kind of looping effect of suspicion and authority. The suspicion that ac-

companies the law and permeates the courts spurs on legislative reforms to

remove the exceptions that allow for legal abuses. But such reforms only

bring on new opportunities for manipulation, ongoing suspicion, which in

turn spurs on more legislation. A s law becomes more widely entrenched,

it becomes more widely distrusted. A n d as more social relations become

more intimately legislated, they too become subject to the suspicion, dis-

trust, and delay exhibited by the law, and in the courts. I argued that this

was just a feature of liberal traditions' generalized vigilance against power,

an integral element of the process and practice of governmentality.

The spread of law into more and more domains of life constantly cre-

ates situations of indeterminacy where it becomes difficult to distinguish

legal actions from ones that are not legal. These indeterminacies, in turn,

enable various forms of state intervention. Such intervention, however,

does not reduce these indeterminacies; it either keeps them in place, or in-

troduces new ones that then invite even more intervention. A s a result, the

state's discretionary agency is maintained and becomes more pronounced.

Thus the rule of law, as part of the liberal regulatory state, constantly pro-

duces spaces of exception wherein it constantly expands its range, and

through which sovereign power asserts itself with ever greater force and

1 8 4 C H A P T E R THREE

capacity. Distrust, suspicion, exceptions, and expansion are endemic to

this distinctively modern process.

I also argued that when the Shari'a is exercised within a liberal legal

framework, it too becomes open to this generalized suspicion and these

forms of indeterminacy and ambiguity. I demonstrated this through a dis-

cussion of hisba, and how it became a state power of unspecified range,

an ambiguous expression of both judicial and sovereign capacity, indeter-

minate between religious precept and secular principle, both an object of

distrust and a modality of penetrating suspicion. I also showed how the

Shari'a becomes embroiled in the question of gender in the courts in a

way that the Fatwa Council does not. The debates over gender and the

Shari'a, however, only served to maintain the centrality of the Shari'a to

the personal status law even as invocations of it were treated with great

distrust. This showed how the Shari'a began to express the law's paradoxi-

cal authority, and how it thereby became entangled in ambiguity, suspi-

cion, politics, incessant legislation, and continual intervention.

In contrast, the practice of the fatwa ought to be seen as a form of the

care of the self, a practice by which a self, in the multiplicity of its affairs,

is connected to and advanced as part of Islamic tradition. Rooted in an

asymmetrical but reciprocal relationship of guidance between mufti and

questioner, the fatwa, as a practice of discerning and of saying the right

words at the right time, mediates multiple temporalities in which a self is

embedded in order to keep and advance it upon an ethical path that has

become obscured from it. The attention the muftis pay to people's particu-

lar situations, and the careful allocation of responsibility in the council,

serves to create strong bonds between the muftis and the questioners they

guide, creating a measure of trust that secures the fatwa's authority.

Although the personal status courts and the Fatwa Council are both

outcomes of modern reform, and thus represent entirely modern possibili-

ties, their structures of authority could not be more different. A n d while

the suspicion evoked by the Shari'a (and religion more generally) and

the frameworks of its politicization—marriage, family, and g e n d e r — a r e

broadly familiar to many, the forms of authority shown by the fatwa are

far less so. These differences of familiarity allow us to make some broader

observations about secular power with which I would like to conclude this

chapter. What the preceding chapters indicate is that secular power not

only blurs the line between religion and politics, and thereby politicizes

religion, but that it does so in characteristic and broadly similar ways. It

is exercised through a family of concepts and sensibilities that are found

to be widely similar across a variety of states. Thus the sorts of issues that

W H A T IS A F A T W A ? 1 8 5

arose during the debates on personal status reform in Egypt are not un-

familiar, as they also resonate with current debates on, and the connec-

tions made between, sexuality, marriage, family, and religion found in

Western secular states. But as religious traditions become politicized in

broadly similar ways and become attached to a similar set of connected

concepts and sensibilities, the specificities of their traditional conceptual

and practical associations become effaced, irrelevant to their subsequent

practice. We saw this most poignantly in the concept and practice of hisba,

where its disciplinary gradations and safeguards against suspicion were

dropped, as it became attached to public interest, public order, family, civil

procedure, and the modes of organized judicial suspicion represented by

the general prosecutor. The possibilities of its previous associations were

thereby emptied out.

This points to something about secular power that may not have yet

been considered. Usually it is thought that secular power renders religious

traditions irrelevant by relegating them outside the domain of politics.

Where religion remains or becomes political, then this is where secular

power is seen to have failed, remains incomplete, where its normative im-

petus has broken down, or where its impossibility stands revealed. But the

discussion here points to another possible way that secular power renders

religion irrelevant, not by rendering it outside of politics, but precisely by

politicizing it. In politicizing religion in broadly similar ways across various

polities, by attaching it to broadly similar sets of conceptual and affective

associations, secular power renders the specificities of religious traditions

irrelevant. This, I submit, is a more profound form of irrelevance than

depoliticization.

This, however, is not to say that religion becomes homogenized. It is

rather to say that its politicization partakes in "shared modalities of legal-

moral behavior, forms of national-political structuration, and rhythms

of progressive historicity," to quote the words of Talal Asad once again.

But it is also to say that the role and place of religion in contemporary

social life cannot be fully understood by assessing how much it is politi-

cal or personal, or the extent to which belief is optional or not.26 These

terms cannot capture the complicated conceptual, practical, affective, and

institutional connections and conditions through which secular power is

exercised, and neither can they capture the consequences of that exercise

in social life. In the preceding chapters I have tried to detail, and outline

the historical emergence of, some of these connections and conditions. I

have done so with the aim of understanding how they render precarious

and even undermine the categories that secularism depends on and aims

186 c h a p t e r thrEe

to establish, how this creates constant gaps between the aspirations of its

political concepts and the attitudes and dispositions normally thought to

come with them, and how these felt gaps, in turn, animate an activity of

continual normative questioning and contestation.

In casting secularism as a problem-space, as a questioning power, I

have notably avoided the critical claims of political theology—which I

find unpersuasive because it returns us to the categories of political or

personal whose inadequacy I have argued for here. What I have tried to do

instead is highlight the some of the conditions under which critical politi-

cal theological claims acquire the force and efficacy they have (a subject to

which I will return in the next chapter and the epilogue). A s we have seen,

the sovereignty that decides the distinction between religion and politics

stands prior to both these categories, and in its indeterminacy cannot be

chalked down to either one of them.

What we see with the Shari'a under law contrasts starkly with prac-

tice of the fatwa in the Fatwa Council. Even though it is the outcome of

modernizing reforms that separated the fatwa from the courts, the Fatwa

Council does not partake of the same conceptual and affective associations

through which secular power is exercised. A s I have shown throughout the

previous chapters, the practice of the fatwa within the council does not

partake of the same distinctions between public and private and between

intimacy and secrecy; it does not display the same attachments to and be-

tween public order and family; it does not express the same forms of sus-

picion, surveillance, or attitudes of vigilance against power; and it is not

involved in the same temporalities and temporal disjunctions that were

found of the Shari'a under the rule of law. A n d although the fatwa and the

Fatwa Council can be and have been involved in political questions and

controversies, the question of religion and politics does not arise as a live

question with respect to them, as it does with the question of gender and

the Shari'a with respect to the personal status courts. In other words, the

practice of the fatwa, as we saw in the Fatwa Council, does not partake of

the problem-space of secularism, that ensemble of questions and stakes

anchored by the question of where to draw the line between religion and

politics, and where the limits of religion should be. The Fatwa Council

does not share the conceptual and affective structures that sustain and

entrench this ensemble of questions and stakes.

Again, this is not to say that the council, ensconced within and a part

of the Egyptian state, is not a product of modern reform, and particularly

those reforms through which the problem-space of secularism and its in-

w h a t i s a f a t w a ? 187

dispensable legal conditions were established. But like a bubble within

a bubble, produced by it but no longer of it, bouncing around within its

confines yet otherwise largely indifferent to it, the Fatwa Council is a space

produced by secular power but one that nevertheless remains largely dis-

engaged from it. A n d though disengaged, the council is not, however, ex-

plicitly opposed in any particular way to the secular power that produced

it. It is neither secular nor opposed to secularity; rather, the concerns of

secularity are not its own. The council, it could be said, neither collapses

religion and politics, nor separates them—rather, it is indifferent to the dis-

tinction between them and the stakes to which that distinction has become

historically attached. Unlike with the Shari'a under the law, the Shari'a in

the Fatwa Council and through the practice of the fatwa is not entangled

in the question of religion and politics. In its indifference to the question

of where to draw that line, to the continual definition and redefinition of

religion and its limits, and to the stakes attached to this process, we could

therefore say that the fatwa, as we saw it in the council, is an asecular

practice. That is, it is uninvolved in the distinctively modern game by which

secularity and religiosity is defined and redefined in relation to identifying

and securing fundamental rights and liberties. The Fatwa Council, in turn,

can be seen as a space of asecularity.

Why do I use the term asecular, and not a term like nonsecular or post-

secular to describe the practice of the fatwa and the space of the council?

The term nonsecular is too easily confused with the notion of the religious.

A n d unlike postsecularity, asecularity is not a temporal marker. It allows

for the possibility that asecularity has, in different forms, always been with

us, even from within the traditions on which state secularity is based. Ex-

plorations of postsecularity typically try to identify the emergence of new

norms. Such attempts fail to recognize that the process of identifying and

distinguishing secular from nonsecular norms is part of what secularism is,

and integral to its power. In contrast, the term asecularity specifies a situ-

ation not where norms are no longer secular or religious, but where the

questions against which such norms are adduced and contested as answers

are not seen as necessary. Such a condition of asecularity, that is, indiffer-

ence to the questions and stakes that constitute secularism as a problem-

space, and which seem so indispensable to the practical intelligibility of

our ways of life, is one that has not been fully considered in the literature

concerned with questions of religion and secularity.

c h a p t e r s i x

Islamist Lawyers in the Egyptian Emergency State: A Different Language of Justice?

And persist in patience, until God pronounces judgment; and He is the best of judges.—Surat-Yunus, verse 109 Al-Qur'an Al-Karim

Cairo, Egypt

I arrived at a well-known cafe next to the Court of Cassation, right across

from the Gamal ' A b d al-Nasser metro stop.1 Since I was a regular at this

cafe, often spending long periods of time writing up my field notes, the

cafe's employees knew me well. But they seemed not to like me much

and had begun to complain to me that I never ordered enough for the

extended periods of time I spent there. Usually, they told me, people must

order along with their coffee (actually, Nescafe) some kind of cake (all

they had was cake and ice cream). A t first I refused, indignant, but to

prevent further trouble and the stigma of getting kicked out of the cafe, I

eventually started to order ice cream along with my Nescafe.

The waiter came out and greeted me, whereupon I told him to get me

a Nescafe right away and that I had a friend coming very soon and so to

prepare two grand dishes of ice cream, to be brought out the moment he

arrives. I was waiting for ' A b d el-Mäged, a politically active lawyer who

works on behalf of Islamist detainees. Charismatic, popular, and highly

politically committed, he had become a friend and an informant and had

given me lots of information about the important work around detainees

in Egypt. Since 1992 the Egyptian government had used its long-standing

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 198

emergency powers to detain indefinitely thousands of people suspected of

being involved in Islamic groups allegedly committed to the violent over-

throw of the government. Islamist lawyers have committed tremendous

time and effort to free these people or ease their various sufferings under

detention.

Their work brought into bold relief a set of intimate connections be-

tween the liberal rule of law and the emergency state in Egypt. It showed

how the ongoing state of emergency in Egypt opened up a space for a

different language of justice, one that drew upon and resonated with Is-

lamic traditions for its critical thrust and effectiveness. Yet while that lan-

guage was critical of the notion of the human subject as essentially a sub-

ject of legal rights, it nevertheless promoted the ideals of a liberal rule of

law.

One of the reasons why I discuss these Islamist lawyers' language of

justice is because of how it contrasts with the practices of the fatwa in

the Fatwa Council that I described in the previous chapter. Although it is

deeply configured through modern liberal reform, is by and large apoliti-

cal, and does not in any particular way oppose liberal secular tenets, the

council and its practice nevertheless evades secular power in significant

ways and exhibits a space of asecularity indifferent to the problem-space of

secularism. The practices of the Islamist lawyers I discuss here, by contrast,

are an example of politicized religion, explicitly pitched against the state.

Although these politicized religious practices subsisted within the ambigu-

ous space opened up by Egypt's normalized state of emergency and were

critical of it, they nevertheless aimed to establish the liberal structures of

law and ambiguity that enabled this state of emergency in the first place.

These are the same structures of law and ambiguity through which the

problem-space of secularism is sustained. This shows that politicized reli-

gion, rather than aberration from secular power can be an expression of

it. The liberal rule of law, the state of emergency, and politicized religion

might be seen as but three facets of secular power.

This chapter is devoted to expanding upon and clarifying these points.

To do so will require more than just a description of these Islamist law-

yers' language of justice. It will also require that I place it in the context of

Islamist lawyers' work concerning detainees, and how it was enabled and

constrained by the conceptual, affective, and institutional structures of the

Egyptian emergency state. Let me start at the beginning, the first time I

met with A b d el-Mäged and the discussion I had with him, the ways that

I had misunderstood that discussion and was initially confused by it, and

how I subsequently came to understand it.

1 9 0 c h a p t e r s i x

The Discourse of Human Rights

Although A b d el-Mäged identified himself as an Islamist, the one who

put me in contact with him was a leftist lawyer with well-known activist

credentials. T h e two greatly respected each other despite their very dif-

ferent political affiliations and regarded each other as friends. More than

this, events in the Lawyers' Syndicate over the past decade had brought

leftist and Islamist lawyers closer together, often in bitter opposition to

those of the Muslim Brotherhood, which, despite its greater popularity

among lawyers generally, h a d — s o it was claimed—compromised with the

government to maintain its influence and was thus effectively incapable of

confronting the state on any matter of injustice. Despite even these differ-

ences, however, lawyers of all factions had worked together, in some cases

representing each other in litigation, and all retained a strong commit-

ment to the legal profession and the ideals of the rule of law.

For all the strong friendships, growing cooperation on syndicate mat-

ters, and general commitments to the legal profession, A b d el-Mäged was

nevertheless fiercely critical of the leftist lawyers and their organizations.

They had inaugurated a number of campaigns, he told me, based on the

idea of human rights, in order to free detainees (prisoners of conscience

[suganaa' al-ra'i], as they referred to them). These lawyers devoted their

resources and legal work toward that end during the 1980s, when there

were still a large number of political prisoners who were leftists.

However, as the number of Islamist detainees began to grow and vastly

outnumber those from the left, that work began to lose its high profile and

yield ever-decreasing political and financial returns for these campaigns.

Furthermore, as these campaigns became transformed into full-fledged

human rights organizations—sometimes through outside funding—the

mostly leftist lawyers who ran them dropped this work almost entirely in

favor of other human rights concerns. More, as human rights organiza-

tions began to proliferate in Egypt (also probably due to the vast growth

of outside funding for N G O s ) during the 1990s, Islamists found themselves

increasingly pushed out of them. Islamist lawyers were left to themselves

to organize separately in order to continue this important work on de-

tainees. More than this, he said, such groups spend their time highlighting

rights that are least relevant with respect to the major ongoing violations

in Egypt, including advocating for rights that the members of these groups

would never permit for their own children, such as various kinds of sexual

freedoms.

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 200

Thus ' A b d e l -Mäged saw these leftist lawyers and their organiza-

tions, with their claims about the pursuit and protection of human rights,

as hypocritical. A t best they were just out for their own, at worst for

themselves.

' A b d el-Mäged's accusations reflected the detailed criticisms of another

wel l-known Islamist lawyer: Montasar A l - Z a y ä t . A l - Z a y ä t was widely

known as a lawyer w h o specialized in the legal defense of Islamists against

the government. A l t h o u g h not formally a m e m b e r of any Islamist organi-

zation (all of these organizations are legally banned as independent politi-

cal parties), A I - A l - Z a y ä t is known to have access to Islamist leaders at the

highest levels and thus serves as an unofficial spokesperson for them. In

one of his books he unleashes sharp criticisms against human rights orga-

nizations for their biases, exclusions, warped sense of priorities, and lack

of proportion in addressing violations. I quote one passage at length:

The increase in human rights organizations and centers has brought about a

wide-ranging debate in Egypt, with the first major point of concern being that

they are primarily controlled by those of the very same Egyptian left to whom

were attributed the worst violations of human rights when they held power dur-

ing the reign of 'Abd el-Nasser

When we called to question the utter silence maintained by the Arab and

the Egyptian Organization of Human Rights about the sharp violations that

Islamists suffered, such as torture and other inhuman practices, we received

no definitive or satisfactory response from its representatives. So we told them,

"Your leftist orientation—dear sirs—that is what comes between you and a

proper and honest defense of an oppressed Islamist; you do not but defend

the rights of the leftist and the Marxist to freedom of thought and expression.

And if you find some specific or personal problem with one of these oppressed

Islamists, this becomes a deceptive excuse for you to spend your time (in-

stead) searching for an end to men's rights over women, and equality in men's

rights over women in inheritance, and perhaps even in rights to marry four

spouses!". . .

In truth and fairness, the burgeoning of centers calling for the respect of hu-

man rights might be a positive phenomenon, having an impact upon those who

have been repressed due to their opinions, beliefs, acquaintances or families.

This is on the condition that every such organization or center aims to fairness

and works toward the respect and protection of rights without preference for

one political orientation or group. For if the work of such a center moves away

from such a general goal towards the service of the one political orientation

or the exclusion of another, leaving a person to be a victim of the state, then

1 9 2 c h a p t e r s i x

the situation has become perverted into a trade for enrichment, into profiting

from human rights. The increase (in centers) thus becomes an indication of the

plurality of shops and boutiques that trade in the moans of the weak and the

screams of the tortured.2

Al-Zayät 's last point goes beyond a criticism of local Egyptian human

rights groups; it refers to and is directed at an international dimension that

these groups, in his mind, have come to acquire through funding and other

kinds of relationship. This dimension, constituted by international human

rights organizations and official bodies, formed a matrix of concerns and

emphases within which the local groups would work; this led them to high-

light those issues that were consonant with international rather than local

concerns in order to get more attention and possibilities for continued

support and funding. His critique, then, was of international human rights

discourse and its universalist pretensions, of which the local human rights

groups had increasingly become a reflection.

There was no doubt that some of the various human rights centers and

N G O s in Egypt , such as the Egyptian Organizat ion of Human Rights, the

Legal Resource and Research Center, the Hisham Mubarak Center, the

now defunct Cairo H u m a n Rights Legal A i d , and other such organiza-

tions had done (and continue to do) commendable work. But the claims of

A b d el-Mäged (and A l - Z a y ä t ) did parallel critiques that have since been

increasingly made of N G O s , the ways their agendas come to be shaped,

their growing power combined with their continuing unaccountabil ity

within the often fragile states where they work, and the ways they channel

the concerns of stronger states (that typically compose "the international

community") to shape the local discourses of weaker ones, thereby leav-

ing long-standing problems to languish unattended, or sometimes even

making them worse.3 With these critiques, A b d el-Mäged's and Al-Zayät 's

claims acquire a ring of plausibility.

Over time, however, it seemed more and more to me that A b d el-Mäged

was just as hypocritical as the leftist groups he criticized, if not the more

so for having criticized them. H e and his association, the Association of

Islamist Lawyers, focused almost entirely upon Islamist political prisoners,

and more than that, only those prisoners w h o were of their particular politi-

cal orientation. Thus, for example, they did almost nothing to help the many

political prisoners w h o happened to be from the Muslim Brotherhood.

A l t h o u g h this fact became clear to me early on, I hesitated to bring it

up forthrightly, in the face of our growing association and friendship. I did

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 1 9 3

mention it in passing, though, during one of our conversations. He, how-

ever, mentioned equally in passing that he saw no contradiction between

his own conduct and the conduct of the leftist lawyers he had accused of

being hypocritical.

A n d that left me even more confused.

A s our friendship eventually solidified, I finally brought the issue up. I

asked him how he could have criticized the conduct of the leftist lawyers

when his and his fellows' conduct was just the same. He sighed and an-

swered the same way he did the first time I mentioned the issue: that we

were all human (ahna kullina bashar) and that he didn't see a contradic-

tion. So I pushed it further: but if we were all human, why accuse the other

people of hypocrisy? Aren't they human too? W h y exempt yourself but

not them? Isn't that even more hypocritical?

A t this he responded that I had misunderstood what he said. What the

leftist lawyers claimed was that their work was motivated by human rights,

a human rights that all people possessed and that was their responsibility

to uphold. But this, he said, was not only hypocrisy, it was also impos-

sible. For anyone to be so motivated, he said, one would have to be a saint

(,muqaddas) or purely a lawyer, without any biases or attachments to any-

one. This is because, he told me, the difficulties and obstacles thrown up

by these tasks were formidable enough to defeat even the most tenacious

and energetic of individuals. I later came to understand what he meant as

I accompanied him during his work with political prisoners.

The Egyptian Emergency State

A s is well known, Egypt has been under some form of emergency rule

almost continually since 1967, with a brief respite during the year 1980-81.

In order to understand the work of A b d el-Mäged and other Islamist law-

yers, one must place it in the context of the strange structure the emer-

gency state has acquired since its declaration. The emergency powers of

the state are clearly expressed through a set of laws and an exceptional

court system that exists alongside the regular courts. Yet the exceptional

powers of that court system are crosscut and thus somewhat mitigated by

elements from the normal judiciary, which defines itself by narratives of

struggle for judicial independence from the executive branch. The assur-

ances of a relatively independent judiciary, however, are less than they

seem. Their commitment to strictly applying the text of the law and to

1 9 4 c h a p t e r s i x

correct legal procedure also includes following the emergency law to the

letter. Moreover, any sense of normality that the judiciary might provide is

rendered precarious by elements embedded within the Egyptian constitu-

tion. The normal situation is also rendered ambiguous by the state's increas-

ingly deft use of ostensibly regular laws in ways that simulate exceptional

powers.

In what follows I detail aspects of the Egyptian emergency state's com-

plex architecture, with particular attention to its powers of administrative

detention, the structure of its exceptional courts, and its simulation of ex-

ceptional powers through ostensibly normal means. I do this in order to

highlight the set of overlapping options and limits put in place by the law

and the state that shapes the parameters and forms the volatile affective

space within which Islamist lawyers must work and fashion their senses of

s e l f — a s legal practitioners, political advocates, and committed Muslims.

It is from within that space that they also fashion, through their discourses

and practices, the critiques of the legal languages that they must engage

and rely upon. Ironically, many of my sources for this information will

come from some of the very same human rights groups ' A b d el-Mäged

criticized for having largely abandoned Islamist lawyers in the practical

work of obtaining relief for detainees.4

Administrative Detention

The emergency powers of the state executive are encapsulated first and

foremost in article 3 of Emergency Law 162 of 1958. It allows the presi-

dent of the republic, upon a declaration of a state of emergency, to restrict

freedom of assembly, movement, and the right to reside or pass through

specified regions at specified times; to censor the press; and to arrest,

search, detain, and interrogate those deemed suspicious or a danger to

"security and public order." The state has used this last provision exten-

sively to detain thousands of people, most of them Islamists, for indefinite

periods of time. Several massive structures have been built simply to house

detainees, because—according to the lawyers with whom I w o r k e d — t h e

laws for the proper treatment of prisoners require that detainees and con-

victed criminals be held in separate spaces.

Administrative detention is governed by a set of procedures under

the emergency law. Although the law allows indefinite detention without

charge or trial, a detainee is permitted to petition for a release thirty days

after the day the detention order was issued. These petitions for release

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 1 9 5

(al-tazallum fi qirär al-'itiqäl) are referred to the Supreme State Security

courts (whose structure will be described below), which must then issue a

decision within fifteen days of the referral and after hearing the detainees'

testimony. If the court decides to release the detainee, then the minister

of the interior can appeal this decision within fifteen days of its issuance.

The appeal must then be referred to an equivalent court within fifteen

days, which then has fifteen days to issue its decision. A release ordered

by this second court must be put into effect. A n y decision for continued

detention is open to a new petition for release thirty days after the deci-

sion was made.

Under these regulations, it is easy for the government authorities to

hold a detainee for at least ninety days. In practice, however, things are

different: even when detainees are released they are often transported and

held secretly in local police stations or transferred to branches of the State

Security Investigations Department for a number of days until new deten-

tion orders are issued. This happens even with detainees who have been

tried and acquitted by the State Security courts or the military courts.

Several of the terms set forth in the emergency law are vague and

have therefore been both a source of controversy and judicial attempts

at greater specification. One of these is the term suspicious, and thus the

question of just when and why one can be considered a suspect under

the emergency law. Attempts to better specify the notion of suspect by

the courts have been based on an old l a w — L a w 98 of 1945 on "Vagrants

and Suspects" (al-mutasharridln wa-l-mushtabah fihum). Article 5 of that

law identifies a suspect as one who has been subject to an irrevocable con-

viction for one or more of a number of crimes set forth by that law, or who

has a reputation for habitually committing such crimes even if he or she

has not been so convicted. That law also allows for the imposition of pen-

alties and placement under surveillance of a suspect so deemed.

During the 1970s, the administrative courts judged that this definition

of a suspect was the one to be generally applied, and this was typically

seen as a way to place some restrictions upon the emergency law. But

this has not quite been the case; for example, President Al-Sadat pro-

mulgated law n o of 1980, which raised the number of crimes that could

be punished under the initial law on vagrants and suspects and set forth

extremely harsh penalties for them. This, it was said, was due to the fact

that he had lifted the state of emergency and needed an alternative to it

to maintain exceptional powers. The number of crimes was reduced in

1983 after heavy criticisms of the 1980 law. Later, however, in 1993, the

196 c h a p t e r s i x

Supreme Constitutional Court declared article 5 of the Law of Vagrants

and Suspects unconstitutional, thereby removing the legal basis for re-

stricting the definition of a suspect. The question, however, remains un-

answered as to how and whether this declaration of unconstitutionality

affects the terms of the emergency law.5

Other important terms that remain vague in the text of the emergency

law are danger and security and public order. Administrative courts have

thus specified a set of conditions under which a person can be considered

a danger. Those conditions state, for example, that the danger must refer

to specific and demonstrable acts committed by the person in question

and not by his or her associates or relatives. Furthermore, simply being

a member, or the associate or relative of a member, of a group deemed

"fundamentalist" is not necessarily enough to be considered a danger to

security or the public order. The courts have also stated that the acts de-

fined as dangerous under the emergency law must be different from acts

specified and regulated under ordinary criminal law. A difficulty arises

here, however, as the two can clearly overlap—thus the use and sale of

drugs can be deemed criminal acts as well as acts dangerous to the public

order. A s noted in previous chapters, the term public order remains largely

undefined in the law or the courts and has been extended in various ways

to include notions of public morals and public interest as well. Notions of

(national) security, public order, public morals, and public interest have

thus become part of a single field of shifting associations.

Exceptional Courts

This extension of the notion of security and the public order has some

relevance for the expansive jurisdiction of some of the exceptional courts

of Egypt, of which there are several. For our purposes here, however, I will

briefly discuss just two: the State Security courts (mahäkim amn al-dawla)

and the military courts (al-mahäkim al-askariyya).

Political scientist Nathan Brown, in his detailed study of Egyptian

court structures,6 notes that the State Security courts were created out

of the 1958 emergency law in order to establish a long-term structure for

emergency rule. Further entrenched into the judicial system by articles of

the Egyptian constitution authorizing them, the State Security courts had

by the early 1970s effectively split into two different structures, each defin-

ing a different jurisdiction: the first is often referred to as the "regular"

State Security court, and the second is known as the "emergency" State

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 197

Security court. Law 105 of 1980 is understood to have defined the jurisdic-

tion and structure of the regular State Security courts. According to the

International Commission of Jurists, Law 105

confers State Security jurisdiction over cases involving crimes which constitute

a threat to the internal or external security of the state, the crime of possessing

and using arms and explosives, bribery and the embezzlement of public funds.

Law #105 provides for Magistrate State Security courts, which are composed

of a single judge and the Supreme State Security courts, which are normally

composed of three judges . . . article 8 of Law No. 105 provides that verdicts is-

sued by the Supreme Security courts are final and may not be appealed except

through Cassation or re-consideration, which are decided upon by the Court

of Cassation.7

T h a t Supreme State Security court verdicts can only be appealed to the

C o u r t of Cassation is a highly relevant fact. This is because the Court of

Cassation does not review the facts of a particular case; it rules solely on

whether the law has been correctly applied in a case.8 Given the broad

interpretive leeway provided to the terms "national security and public

order" and their shifting field of associations under the law, however, it

is hard for lawyers to contest Supreme State Security court decisions on

the level of law; they must instead appeal the facts of the case. But this

they cannot do, since L a w 105 states that appeals can only be made to the

Court of Cassation. This severely limits the number of State Security court

decisions that can be effectively appealed. In other words, Law 105 effec-

tively creates an entirely new court structure whose jurisdiction overlaps

with that of the regular court system.

This overlap continues to grow, as the jurisdiction of the regular State

Security courts has expanded to cover even economic issues like commod-

ity price controls based on the idea that these issues affect national secu-

rity. T h e existence of constitutional provisions authorizing these courts

and of laws defining their structure, as well as their seemingly growing

jurisdiction over regular affairs, have led some to argue that they are not

really exceptional courts. Thus, Brown writes,

[The regular State Security court] forms a part of the regular judicial struc-

ture . . . it is formed by members of the regular judiciary and largely follows

its procedure and structure. Its jurisdiction reflects the idiosyncrasies of past

definitions of national security more than current political realities. The legal

1 9 8 c h a p t e r s i x

basis o f . . . the "regular" State Security courts rests on a 1980 law that contains

vestigial elements of the origins of the system (for example, the rights of appeal

are slightly limited, and the president of the republic does have the option, not

currently exercised, of appointing military officers to judicial panels). In many

ways the regular State Security courts are better seen as special sections of the

regular judiciary with jurisdiction over special cases than as an exceptional

court system.9

T h e emergency State Security courts display a different structure.

Their verdicts cannot be appealed in any other court and are subject to

the president for a p p r o v a l — t h u s he can annul any of their verdicts. T h e

emergency State Security court has dealt almost solely in cases of what are

seen to be organized political violence; its jurisdiction includes emergency

law cases as well as those cases under normal criminal law that the presi-

dent wishes to transfer to it.

T h e exceptional powers of State Security courts, however, have been

somewhat mitigated by the struggles for and narratives of independence

by the judiciary, leading the state to increasingly resort to another set of

exceptional courts: the military courts. B e f o r e I discuss the military courts,

however, it is worth saying a word or two about these judicial narratives

and struggles.

Judges, like lawyers, have long displayed a strong sense of corporate

identity and an ideology of judicial independence in Egypt . T o quote

Brown again,

Egyptian judges are educated in a small number of law schools; it is not uncom-

mon for judges to have several relatives who preceded them in the judiciary.

Largely self-governing in matters of appointment and promotion, proud of an

institutional history going back to the late nineteenth century, and very con-

scious of their prestigious position, Egyptian judges form a community (at times

it seems almost a caste) possessing a strong identity and sense of mission.10

Judges' corporate identity and sense of independence is most strongly

manifested in the Judges' C lub (nadl-l-qudaa '), which was established in

1939 with the initiation of the national courts, out of the callings and con-

cerns of foreign judges in Egypt that an independent judiciary be main-

tained after the abolishment of the M i x e d Courts. 1 1 T h e Judges' C l u b

habitually held public conferences and published a monthly journal (Al-

Qudah) in order to create forums in which judicial matters could be dis-

cussed and debated. T h e board of the Judges' C lub was an elected one; the

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 1 9 9

members of the club also staffed and thus controlled the Supreme Judicial

Council, a government body that was officially responsible for administra-

tive matters within the judiciary, including judicial appointments.

A s a result of the history of struggles for judicial independence and the

narratives of them, judges not only staff the normal and the exceptional

courts, but they also strongly express a legal ideology that places great

emphasis upon strictly applying the text of the law and correct legal pro-

cedure. This has led the emergency State Security courts to issue acquit-

tals in a number of high-profile cases, thereby embarrassing government

authorities. One example of this was their 1984 acquittal of alleged mem-

bers of the Islamist group Al-Jihad, who were accused of assassinating

President Al-Sadat, on the basis that their confessions had been extracted

through torture.12

The control of the State Security courts by the regular judiciary, its

high level of independence, and its adherence to the principle of correct

legal procedure has led the government to resort increasingly to the mili-

tary courts, especially after 1992, with the resurgence of violent clashes

between the government and Islamist groups. Article 6 of the 1966 Law 25

on the military judiciary allows the president of the republic, during a state

of emergency, to transfer any cases normally tried under the penal code

in the normal courts to the jurisdiction of the military courts. The law also

regulates the structure and the procedure of these courts: they are staffed

by judges appointed from within the military hierarchy; they serve only for

two-year renewable terms and do not necessarily have to have a law de-

gree. Rulings of the military courts cannot be appealed before any other

judicial body, and their verdicts are subject to the president's approval.

Moreover, military trials can be held in secret at the request of the prose-

cution.13 President Mubarak in the 1990s had transferred hundreds of

cases to the military courts, and in many of them severe punishments had

been handed down, including the death penalty. Challenges to article 6 of

the law on the military courts have largely failed, as the Supreme Consti-

tutional Court has supported the widest interpretation of the president's

authorized power to transfer cases under it. This last point is just one in-

stance of how judicial commitments to the letter of the law can keep vast

emergency powers in place.

The Simulation of Emergency Powers

The assurances provided by a relatively independent judiciary are ren-

dered even more precarious, however, due to the potentially wide scope

200 c h a p t e r s i x

given to executive powers through a combination of provisions embed-

ded in the Egyptian constitution, specifically its articles 74, 108, 147, and

136. Art ic le 74 authorizes the president to take immediate action in case

of danger to national unity or security; he must publish a statement ex-

plaining these actions and hold a referendum on them within sixty days

of their enactment. Art ic le 108 authorizes the president in exceptional

situations to issue decrees that have the force of law for a limited period,

upon parliamentary authorization by a two-thirds majority. These decrees

must be submitted to the first parliamentary session after the expiration

of their specified time periods in order to be agreed upon, otherwise their

legal force becomes rescinded. In situations in which the People's Assem-

bly is in recess or suspended, article 147 authorizes the president to issue

decrees with the force of law in cases requiring immediate action. H o w -

ever, the decrees must be presented before the People's A s s e m b l y within

fifteen days if it is still active, or during its first legal convening in cases of

its suspension. Otherwise the decrees lose their legal force as well as any

retroactive effect.

While each of these stipulations may not in themselves seem out of the

ordinary or excessive, Cairo H u m a n Rights Legal A i d notes that

when read in conjunction with Article 136 of the Constitution, which allows the

president to dissolve the People's Assembly whenever necessary, following a

referendum, the full scope of presidential power is revealed. During Al-Sadat's

presidency, referenda were indeed used to assert the legitimacy of legislative

procedures or to push unconstitutional laws through the People's Assembly . . .

as the articles above demonstrate, in effect, the executive authorities (as repre-

sented by the president) were empowered to overrule the legislative authorities

any time.14

Al-Sadat used these extensive powers to push through a number of de-

crees through the People's Assembly. O n e striking example of this, men-

tioned in the previous chapter, was the 1979 decree amending the law of

personal status in order to establish greater gender equality on the argu-

ment that it was a matter requiring urgent action beyond the legislature's

ability to deal with at the time.

President Mubarak had not enacted as many decrees as Al-Sadat; how-

ever, his government had become quite deft at pushing through and using

ostensibly normal laws in ways that simulate exceptional powers. A good

example of this is the Press Law of 1995 (Law No. 93), which allows the

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 2 0 1

government to detain and press charges against journalists whose publica-

tions are deemed a threat to the state. The law was introduced somewhat

suddenly and without the expected protocols into the People's Assembly

and pushed through using a majority of those loyal to the National Demo-

cratic Party. When the law was published it roused a huge uproar among

the press, which claimed it was utterly unconstitutional.

Yet the government employed the law in such a way so as to ensure

that the question of its constitutionality could never be decided. That is

because the government would detain journalists for a few days and then

release them without pressing any charges or imposing any fines. That way

the government ensured that there would be no court case wherein the

process of constitutional review could begin. Even when, due to the inten-

sity of the uproar, the government referred the law to the Supreme Con-

stitutional Court for review, the court responded after a long delay that it

could not, as a matter of procedure, review the constitutionality of the law

except within the context of a concrete court case. Meanwhile, journalists

remained under the threat of sudden detention and thus proceeded more

cautiously in writing articles critical of the government.15 The government

here has acquired something like exceptional powers simply by holding

the full force of this law in abeyance.

Nevertheless, the government does not hesitate to use its tremendous

violence when it sees fit, and to this lawyers are not immune. In 1994, one

such lawyer, ' A b d al-Härith al-Madani, was detained by the State Secu-

rity Services on suspicion of being a member of an Islamist group and

tortured to death. These events precipitated a strike and massive protests

led by the Lawyers' Syndicate against the government, but this led the

government to move directly against them, arresting and detaining several

more lawyers. More, the government used lawyers loyal to it to initiate a

lawsuit against the Muslim Brotherhood-dominated syndicate board for

corruption and embezzlement of funds. This placed all of the syndicate's

financial, and eventually, administrative, matters into the hands of an ap-

pointed judicial body. Thus not only were there dozens of lawyers—most

of them Islamists—under detention, but also the syndicate as a corporate

body was substantially weakened and placed in potential opposition to

their historical political all ies—judges, who were now charged with over-

looking their affairs.

Within the structure I have just outlined, where the normal and emer-

gency aspects of the law crosscut and at points fuse into each other, law-

yers like A b d el-Mäged are the first and last line of defense against the

202 c h a p t e r s i x

state's ongoing detention and torture of detainees. Largely abandoned by

the human rights organizations, and members of a weakened syndicate

that had not the power to defend them, if these lawyers themselves be-

come targets of the state, then there is little that can be done.

Within their work, hope, despair, and anxiety are intimately woven to-

gether. The hope arises from the possibilities offered by the law, as shown

up by the high degree of independence and control over the courts by the

regular judiciary. Despair and anxiety arise from the severe limits that

inhere within the law itself, limits that also include the ambiguities of the

state's power, which maintains the legality and ever-present possibility of

its devastating violence by strategically holding it in abeyance. This inter-

weaving of hope, anxiety, and despair within the state's normalized emer-

gency structure is well illustrated in the story of 'Abbäs and the Lawyer's

Syndicate sit-in.

The Story of'Abbäs and the Lawyers' Syndicate Sit-In

One of the members of the Islamist Lawyers' Association was named

A b b ä s , who seemed to me to be one of its directors. A tall, thickly

bearded, heavily eye-browed man with his shiny black hair cut s h o r t — h e

always wore dark sunglasses and, as he was constantly talking on his cell

phone, seemed to exude a cool, distant authority.

'Abbäs evoked in me a quiet terror. When talking on his cell phone, he

would frequently look in my direction, although I could never tell through

his sunglasses whether he was looking at me or elsewhere. Sometimes,

however, he would just silently stare at me. It seemed he wanted to talk

with me. ' A b d el-Mäged, however, advised me not to pay attention to him

and rarely spoke about him in general. That only increased my anxiety. I

thought 'Abbäs might at some point accuse me of something due to my

American background, interrogate my religiosity, expose me as a hypo-

crite or something worse, and prevent me access to the lawyers whose

advice and whose work was so central to my fieldwork.

This situation went on for months, with him constantly staring at me,

and me trying to avoid him and his pensive surveillance as much as pos-

sible. But the inevitable encounter came. A f t e r staring at me pensively

from afar for a long time, 'Abbäs stood from his seat and approached me.

I looked up at him, trying to keep my composure.

"You're from America?"

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 203

" U h . . . yes . . . ? "

He stared at me pensively again. Then he pulled out his cell phone.

"See this phone?"

" E h . . . yes . . . ? "

" D o they have models like it in America?"

I didn't know what to say. Neither did I know anything about cell

phones, never having had one at that time.

" W e l l — I don't know, I am not sure."

"Then what kinds of models do they have in the U S ? And would they

work here? D o you think you might be able to get me one? . . . "

'Abbäs, it turned out, was quite a silly man, more concerned with his

fashionable appearance and his cell phones than anything else, and he

was a constant irritant to ' A b d el-Mäged and the rest of the lawyers in

the Islamist Lawyers' Association, who often wondered despairingly why

they had ever accepted him into their ranks in the first place. It was for this

reason that ' A b d el-Mäged had advised me to avoid him.

'Abbäs figures centrally in an event I witnessed during my fieldwork,

when the Lawyers' Syndicate decided to enact a sit-in for several days in

protest of continued judicial control over its a f fa irs—a judicial control, as

I mentioned earlier, that had been sponsored and maintained by the gov-

ernment in order to stifle the syndicate's demonstrated political influence.

Some members of the Islamist Lawyers' Association were, among others,

involved in organizing the event. On the first day of the sit-in, Egyptian

security forces stationed large vans in front of and all around the syndi-

cate building. But the vans, and the security forces in them, did not do

anything. They just sat there. That, however, only increased the tension

within the syndicate, as various members contemplated the possibility that

the security forces might storm the premises.

The first day passed without incident, as did the second. But the gov-

ernment's stationing of security vans, though blatant, turned out to be a

highly effective strategy of intimidation. A s each day of the sit-in wore on,

the anxiety of a raid only increased. A n d this had an impact on the sit-in

itself, making people reluctant to stay on the syndicate's premises. It was

important to make sure that there were always some lawyers present in

the syndicate so as to ensure the sit-in continued. A t times, however, par-

ticularly the late afternoons, the numbers dwindled dangerously low.

O n the third day, late afternoon, there were only a few lawyers, most

of them from the Islamist Lawyers' Association. The security forces' vans

were still out front. The lawyers would smoke, make small talk, stare out

204 c h a p t e r s i x

the window, smoke some more. Although it was still only the month of

March, and not yet warm, an odor of sweat mixed thickly with the smoke

in the air. Everyone seemed to be just a bit on edge.

One of the lawyers came up with an i d e a — a practical joke, some-

thing to pass the time. They picked up the phone and called A b b ä s — o n ,

of course, his cell phone. Speaking in muffled, authoritative voices and

smirking among themselves, they declared that they are the investigative

security forces (mabhä ith amn al-dawla) and demanded that he give them

all the names of those involved in the sit-in.

Their smiles froze on their faces.

They hung the phone up slowly, in silence. Speechless for a moment,

they suddenly broke into a simultaneous, animated, chatter that, over

time, diminished into a silent brewing. When ' A b d el-Mäged arrived, they

recounted to him, in whispered tones, the story of 'Abbäs's betrayal.

' A b d el-Mäged shook his head, let out a sigh. "Why did you do such a

stupid thing?"

The lawyers, confused, looked at one another—and began to criticize

'Abbäs, his betrayal, and his character. A t that moment, 'Abbäs walked

into the syndicate, provoking a ferocious explosion of shouting and an

argument whose vehemence sent him lumbering out the door.

' A b d el-Mäged could not defend 'Abbäs's actions. Neither could he

defend 'Abbäs's character against his fellow members' critiques, which

ranged from how 'Abbäs shamelessly steals other lawyers' clients to how

he lustfully stares at passing women even as he recites the Qur'an. ' A b d el-

Mäged agreed that 'Abbäs was a deeply flawed person but insisted that to

play such a practical joke was a mistake and that it opened the doors to the

very betrayal with which they now accused 'Abbäs. The lawyers continued

to criticize, but ' A b d el-Mäged held his ground. They abruptly broke off

their critique and walked away not only from ' A b d el-Mäged but also from

one another. That was the end of any collective discussion that night.

The syndicate sit-in was eventually successful, being one factor that

helped set in motion the legal and administrative procedures needed to se-

cure its independence from judicial oversight. But the trust between law-

yers in the Islamist Lawyers' Association had been deeply eroded. 'Abbäs,

though he was disliked for his demonstrated selfishness and distrusted for

his apparent stupidity, was nevertheless, due to ' A b d el-Mäged's insistence,

retained and not abandoned by the group.

This story helps illustrate how a state's emergency structure constitutes

a space, fraught with hope, uncertainty, despair, and anxiety, within which

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 205

these Islamist lawyers must work, where a simple joke can so easily bring

about part of the terrifying reality that it was only meant to parody. It is

this space within which these lawyers, alone and faced squarely with the

possibility of the state's violence, must define their motivations and devise

their tactics against law's limits and a state that throws up obstacles for

them at every turn. It is to their work, their motivations, and their tactics

that I now turn, in a story about my trip with ' A b d el-Mäged.

Waiting with 'Abd el-Mäged

I met A b d el-Mäged at the Ramses Square metro stop16 at 7:00 a.m. sharp,

our agreed-upon time. But already he was in a rush. We stopped at a small

kiosk to quickly buy some breakfast snacks, but A b d el-Mäged proceeded

to buy several extra snacks and cookies, saying that we would need them

for later. By 7:30 we were on a bus and soon on the way to Al-Sadat city,

about ninety-three kilometers north of Cairo toward Alexandria, and

where A b d el-Mäged would work to get power of attorney (tawktt) for

several detainees. Such power of attorney is usually the first step toward

filing petitions for release in the state security courts, appeals against de-

tention orders in the administrative courts, and civil suits for compensa-

tion for torture. Power of attorney was also needed to manage the myriad

affairs put on hold due to the indefinite manner of their detention—such

as ensuring that they would not get fired from their jobs or to obtain waiv-

ers for university exams, as many of the detainees were students, or to en-

sure that the regular payments guaranteed by the doctors' and engineers'

syndicates for detainees come through, and other administrative proce-

dures from visitation to applying to university. Important as it is, power of

attorney is not so easy to get for these detainees. A b d el-Mäged told me

not to expect to get home until after sunset.

A s we started on our way in the crowded bus, its several T V screens

flickered on and began to play a bad Egyptian comedy. Bored of the com-

edy, and still a bit sleepy, I stared out the window for most of the way,

dozing in and out, until we seemingly suddenly arrived upon a massive

structure—a prison. I saw crowds of people with bags and boxes sitting on

the ground next to the prison gates. Several passengers got off at the stop.

But this wasn't the only stop. It turned out that Al-Sadat City, besides be-

ing a major industrial center, also housed four major facilities: Prison 430,

Prison 440, Lldän One, and Lidän Two, also known as Wadi Natrün. The

206 c h a p t e r s i x

first two were prisons, while the second two were mostly for detainees.

' A b d el-Mäged today would be trying to get power of attorney for several

detainees in Wadi Natrün.

We did not, however, get off the bus at Wadi Natrün; rather, we got

off at the local Office of the Registry (.Al-Shahr al-'Aqäri). In front of the

building we met another lawyer from C a i r o — M u s t a f a — w h o was a friend

of ' A b d el-Mäged and was also working to get power of attorney for de-

tainees in Wadi Natrün. We entered the small building, walked up to the

second floor, and there met Zaynab, an employee of the registry who also

knew both ' A b d el-Mäged and Mustafa.

A f t e r exchanging formal greetings the two lawyers immediately began

to fill out a set of papers Zaynab had given them, with as much speed as

possible. There were only one or two other employees in the otherwise

nearly empty room; moreover, very few people came during the entire

time we were there, which was very nearly three hours. The large room

was engulfed by a strange silence that, while punctuated only by the faint

rushed rattling of papers, conveyed less a sense of calm than a mix of in-

tense concentration and subtle anxiety—much like what is felt in a class-

room during the final exam. A t one point that anxiety became explicit

as Mustafa burst out in a loud argument with Zaynab, who claimed that

he had filled out several of the papers incorrectly and would have to do

them all over again. ' A b d el-Mäged immediately intervened, apologized to

Zaynab, pulled Mustafa aside and whispered to him to calm down and just

do as she says or else risk alienating Zaynab and her invaluable help.

Zaynab, I found out, was a public notary (muwathaqa) of the Office of

the Registry, and among her duties was to travel wherever necessary in

order to perform the proper registrations required, such as the detention

centers to register the power of attorney agreements for detainees. The

papers ' A b d el-Mäged and Mustafa were filling out were forms document-

ing and authorizing power of attorney. Each form was composed of three

copies, one for the lawyer, one for the Office of the Registry, and one for

the Office of Records (Dar al-Mahfuzät)\ more, the details of the signed

power of attorney form must be written into the permanent file book of

the Office of the Registry by a public notary. Thus to get power of attor-

ney for twenty or thirty detainees one would first have to fill out sixty to

ninety forms. This is one reason why they took so much time in filling out

the paperwork, but they were rushed because, as I found out, they actually

had so little time.

They finished the paperwork and Zaynab briefly looked them over; we

ISLAMIST LAWYERS IN THE EGYPTIAN EMERGENCY STATE 207

all then set out in a car, with a driver, down to Wadi Natrün. We stopped

some distance away from the gates. Zaynab, holding a massive book in her

arms, walked out of the car and up to the prison gates; the prison guard

greeted her, opened the gates, and she disappeared into the vast prison.

A n d there we waited . . . and waited . . . and waited . . . and waited.

A b o u t three hours later, A b d el-Mäged brought out the snacks and

cookies that he had bought in the morning. We munched for a while, then

sat silent. Growing increasingly restless, Mustafa stepped out of the car

to stretch. I asked ' A b d el-Mäged what was taking Zaynab so long. There

were a large number of detainees, he responded, and it takes time to get

the papers to them and to get them signed. Zaynab also had to record all

of the signatures in the Registry Office's file book, and this meant that she

had to handwrite all of the information included in the power of attorney

forms into the file book. A n d all this takes a lot of time.

The important thing about Zaynab, he told me, was that "her work was

clean" (shughlaha nadlf), that is, she did her job correctly and as best she

could, unlike other notaries, who never seemed to be able to get the sig-

natures of most of the detainees, claiming that for some reason or another

they weren't available.

A lazy or careless notary meant a wasted trip; Zaynab was different.

' A b d el-Mäged briefly complained about Mustafa: he was always stubborn

and argumentative, and almost ruined the good working relationship they

had established with Zaynab.

This wasn't the first stage in the process of getting power of attorney

for detainees; there is a previous stage that requires the lawyer to submit

a petition to the Office of the General Attorney for Detainee Matters

(Maktab al-Na'ib al-'Aam l-Shu'ün al-M'otaqalin) to get permission to ob-

tain power of attorney for the named detainees and to give permission to

the prison warden to let the notary into the prison to perform this work.

Thus the process of obtaining power of attorney for detainees is placed

under state scrutiny.

A s we sat in the car we saw a bus approach; a woman and a younger

m a n — h e r son, it seemed—stepped out of it. They were carrying two boxes

of clothes and other items. ' A b d el-Mäged tried to figure out whether they

had come to visit a detainee or one of the few regular prisoners who were

confined within Wadi Natrün. A f t e r some observation he decided that it

was a regular prisoner. This was because they had brought boxes, when

it was required for all laundry to be brought in white bags; also, they had

brought tissues when such items were, along with writing utensils, explicitly

2 0 8 c h a p t e r s i x

prohibited for detainees in order to prevent any unmonitored commu-

nications with the outside world. Lastly, ' A b d el-Mäged noted that the

woman's clothing was colorful, in contrast with those of the Muslim Broth-

erhood or the Islamist groups. A b d el-Mäged was surprised that these two

had arrived at this time, as visitation hours had ended long ago. Indeed,

besides us, they were the only ones outside the prison gates.

Visitation was often a third, ongoing, stage in the process of obtaining

and exercising power of attorney. B u t most lawyers tried to avoid that as

much as possible, often asking the families of the detainees to get or de-

liver information concerning them. Whether for families or lawyers, visita-

tion was a most frustrating and exacerbating experience. Here are some

descriptions of visitation experiences, by the lawyer Monta§ar A l - Z a y ä t ,

whose human rights criticisms were quoted earlier:

We stood in front of its gate at eight in the morning and saw a massive, wide

structure surrounded by towers and high fences all around; this was certainly

an expensive prison on which was spent millions of [Egyptian] pounds. Despite

this, however, we found the families of the prisoners sitting on the ground in the

middle of the path in front of the prison gate; it is surprising that the planners of

such a new, modern prison would not be concerned with building a specific rest-

ing or waiting area for visitors despite the vast, empty expanse that surrounds

the prison from every side.

And by the time we were permitted to enter the prison, the afternoon was

half-over. More than five hours had passed before the first group of visitors was

allowed to enter . . . when we reached the visiting area we found it to resemble

the Giza Zoo, surrounded by cages; and the prisoners were within them. Their

features were obscured by the steel mesh; in the clamor of raised voices we

could not distinguish anything; we saw our friends through the cages but we

could not hear them, neither could they hear us.17

In another prison, where he notes that people had been waiting f rom

5 a.m. in the summer heat until at least 3 p.m., when the first batch of visi-

tors were allowed to enter, he writes,

I was even more surprised to learn that there was a resting area next to the

prison for the visitors—families and friends—of the detainees, fully equipped

with bathrooms and a cafeteria and chairs. But it was closed for visitors—so the

intent is not [just] to torture detainees but also to torture their relatives. I was

told by the relatives of the detainees that that rest area has never opened except

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 209

once, and that was upon a visit from a lawyer from the Egyptian Organization

of Human Rights!!18

Indeed, the nightmare of visitation was as much a defining feature of

the experience of detention as was the detention itself, and this made it

part of a collective experience for the detainee and those close to him.

We saw a massive truck, loaded with detainees, leaving from the prison

gates. ' A b d el-Mäged told m e that these were detainees who had either

been released or transferred to another detention center. H e explained

that these detainees are typically taken and held in police centers until

new detention orders are issued, whereupon they are returned right back

to the detention center. A while later, we saw another large, overcrowded

truck approach the prison gates: new (or recycled) detainees.

I asked A b d el-Mäged what the point was of trying to free detainees

when they just got sent back? H e responded that sometimes the lawyers

were able to get detainees transferred from one center to another, and this

sometimes helps as detainees often suffer depression from being in one

center for so long, or happen to become the object of attention by particu-

larly abusive guards; a change of place helps lift their spirits a bit.

A t this I thought: we are out here, stuck waiting in this car outside the

prison gates for hours, and we are still only at the beginning stages of a

process that in the end offered only the slightest of hopes. A n d so began

the first glimmers of understanding that eventually led to the chapter that

you are now reading . . .

Z a y n a b emerged out of the prison. In the car, she handed A b d el-

Mäged a thick file of forms: authorized power of attorney documents. She

had been able to register nearly all of their detainees. They thanked her

profusely as we drove back to the Off ice of the Registry. Bidding farewell

to Zaynab, we quickly made our way on foot to a small restaurant to have

our first real meal of the day and then ran to catch the bus. We sat in silence

throughout the hour and a half trip back to Cairo. We bade farewell to Mus-

tafa and walked together toward the metro stop. A b d el-Mäged turned to

me: see how difficult this work is, the way we suffer when we do this work?

H e wanted me to write about this, so that people would know. I promised.

Indeed, I realized as I approached the metro stop that I was deeply

e x h a u s t e d — m y body felt slow and heavy as if I were suffering f rom jet

lag. A b d el-Mäged mentioned that he was going the next day to do similar

work in another city and detention facility, and that I could accompany

him if I wanted. N o thanks.

210 c h a p t e r s i x

It dawned on me that ' A b d el-Mäged did this work alongside his routine

litigation, which involved running up and down the stairs of the various,

often overcrowded, sweaty courts in order to get cases scheduled for hear-

ings, to have them recorded, stamped for implementation, and other such

procedures. Not to mention the time spent writing up case arguments,

collecting necessary documents and evidence to complete case files, and

finally actually litigating cases during court hearings. This was physically

and mentally demanding work on its own, and I would become depleted

simply accompanying these lawyers during their regular routines. A b d el-

Mäged's work with detainees brought him little income, and that is why he

had to work routine cases as well. Hence, I began to get a sense of the dif-

ficulty of the work that A b d el-Mäged and other Islamist lawyers did, its

wrenching temporalities of rushing and uncertain waiting, and the volatile

affective space of hope, anxiety, violence, and despair within which it had

to be done. N o wonder that A b d el-Mäged would express such shifting

moods in describing this work to me, from seriousness and enthusiasm to

an uncaring and distant attitude, and then a sudden critical cynicism that

would finally slide into a period of dejected silence that indicated his utter

frustration with it all.

To return, then, to his criticisms concerning human rights: the abstract

motivation of human rights could never impel a person to continue this

work, with all of its difficulties, dangers, obstacles, and negligible awards.

A s he said, one would have to be a saint, or purely a lawyer—that is, more

than human or less than o n e — t o be so motivated. The hypocrisy of the

leftist-dominated human rights organizations was precisely in their claim

to be motivated by such an abstract and overarching commitment.

A s opposed to this, he acknowledged that as a human being he was

essentially situated, within the relations of family, friends, and associates,

and that these relations would orient his feelings and biases. This would,

of course, lead him to work harder to help those who were from among his

friends, family, and those of his political or religious orientation. It could

not be any other way. But this also meant that one had to acknowledge

and patiently work with the flaws and weaknesses of others one is associ-

ated with. That is one of the reasons why A b d el-Mäged refused to allow

A b b ä s to be expelled from the Islamist Lawyers' Association. He saw this

patience as part of his comportment as a committed Muslim, and which

infused all of his legal work.

My experiences with A b d el-Mäged also helped me make better sense

of some of the writings of Islamist lawyer Montasar Al-Zayät in relation

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 2 1 1

to his sharp criticisms of human rights groups, which I had quoted earlier.

In the same b o o k where he criticizes the biases of these groups he also

explains why he provides legal defense of Islamists:

I defend them because I am of them I defend them because I am from them

and they are from me, so I am able to sympathize and understand (atafahum)

the motives by which some of these men from the Islamist groups explain their

involvement in those operations described as violent. I am able to sympathize

and understand how [these operations] are a response to an original violence

('onfasli) that has fallen upon them from the government and the security appa-

ratuses Specialization goes along with the legal profession; thus, it is known

that certain lawyers work in the defense of those accused in drug crime cases,

and they are not blamed for that; others are specialists in juvenile cases, or in

(cases) in front of the military courts and so forth, so why all this uproar against

us only? There is naturally a space for empathy with the accused since, as I said

before, I defend them because I am of t h e m . . . . I am one of those who defend

the Islamist idea and who are from the sons of the Islamist movement.19

M y trip with ' A b d el-Mäged, along with his explanations, helped me un-

derstand how A l - Z a y ä t could in the same breath criticize the biases of

human rights groups and yet openly acknowledge his own.

It was not that ' A b d el-Mäged and other Islamist lawyers disagreed

with the rights espoused in international human rights discourse; on the

contrary, they endorsed nearly all of them. Moreover , they professed a

strong commitment to the principles of the rule of law; ' A b d e l-Mäged,

for example, envied the respect he thought lawyers were given by the U S

judiciary. But he saw himself as both a lawyer and a Muslim, and while

this presented n o contradiction, he saw his identity as a Muslim as one

that constrained his actions as a lawyer in certain ways. Thus, for example,

he would avoid certain c a s e s — s u c h as cases involving drug u s e — b e c a u s e

they tended to put one in contact with people and situations that could

potentially corrupt a person. H e also understood his actions as providing a

model in the Lawyers ' Syndicate for how a lawyer should act.

Zulm ' A b d el-Mäged acknowledged that for all the effort he put into this work,

it brought little financial return or political success. Why, then, continue

2 1 2 c h a p t e r s i x

it? Besides being a way of offering a small hope for the detainees and their

families, ' A b d el-Mäged told me that he was motivated by a sense of the

zulm (a term that combines the meanings of injustice and oppression) that

is being done to his fel low Muslims. This notion of zulm deserves some

further discussion because it seems to be used in specific ways that also

connect importantly to some of the tactics Islamist lawyers employ.

T h e notion of zulm is not an explicitly Islamic concept, and neither did

A b d el-Mäged self-consciously evoke the term as an explicitly Islamic

one. Nevertheless, it can be and of ten has been made to resonate power-

fully with explicitly Islamic narratives. Consider the words of one Islamist

lawyer in his introduction to a practical lawyer's manual on the issue of

detention:

More than any other group, Islamists today are facing—due to their political

and public work—indefinite detention at the hands of the ruling powers that

dominate our Muslim land. These organizations shroud themselves within a

legal order to impart legitimacy to these oppressive measures, and this is what

is typically called the customary order or emergency law.

The doctrine of the Muslim—who works with the aim to make the word of

God supreme, and so that the order of the Qur'an is dominant, and the Shari'a

of God rules—this doctrine leads the one who adheres to it to look upon deten-

tion as one of the forms of trial and tribulation that distinguish the way of the

Call (tarlq al-d'awa) in this stage of Islamist work.

During the Meccan period of the Islamic Call, the first Muslims faced many

forms of pain, suffering and trial, amongst them the confinement to their homes

(and this bears some similarity to detention)... .

Their firmness in the way of the call and in facing all the forms of trial and

pain, was the decisive factor in their victory, the elevation of their system, and

their establishment upon the earth.

The method has not changed. The method of the people of falsehood in op-

posing the Call is just the same even if the fences and the styles differ. And the

method of God, and the way of God—that also does not change, neither can it

be exchanged.. . .

Despite the fact that the state of emergency is an oppressive, unjust order

(nizäm zälim) and despite that detention constitutes an oppressive, unjust or-

der, it is nevertheless a legal order, overseen by the judiciary....

Knowing the [procedural requirements for detention] and resorting

to the judges is an attempt to defend against the zulm that has befallen the

detainee.20

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 213

That the concept of zulm ' A b d el-Mäged invoked has a powerful Is-

lamic resonance is also evidenced by one of the tactics that he and other

Islamist lawyers used to overcome the limits of the law. This was the tactic

of quoting verses of the Qur'an as part of their legal briefs. But what was

interesting was how and why they said they used such verses. The verses

were almost never used within the actual argumentation of the legal brief;

rather, they were used only to preface that argumentation. Islamist law-

yers seemed to do this for two reasons. The first was that judges strictly

adhered to the principle of argumentation solely from the legal texts, and

the use of Qur'anic verses within the legal argumentation would violate

that principle.21 Apposite to this, however, was that these verses were seen

to stand above the law, and as such could be used to appeal directly to the

judge and his sensibilities as a Muslim. Hence, their use as a preface.

People made such an appeal, I was told, to evoke in the judge a sense of

the enormity of the zulm involved in a particular case, zulm that had to do

with a perversion of the law. In other words, the concept of zulm seemed

to be less connected with regular violations of the law than with a more

fundamental abuse of legal procedure and flouting of the very ends of the

law. This is also apparent in the narrative I just quoted, in which the state

of emergency, though acknowledged to be legal, was nevertheless associ-

ated with zulm. The point of using Qur'anic verses to preface legal briefs

was to sensitize the judge to such perversion, allow him to see through

it, and thus judge justly. Zulm, perversion of the law, the invocation of

Islamic narratives, and strategic use of Qur'anic verses thus seemed to be

connected.

I found these connections even among lawyers who did not identify as

Islamists, but who saw themselves as only moderately religious. Thus when

I first set out during my fieldwork asking lawyers how they used the Islamic

Shari'a as part of their case arguments, one lawyer, Hamid, gave me a small

book he said would answer all my questions. The book, written by a practic-

ing lawyer, supplied lists of Qur'anic verses that could be used for different

types of cases.22 There were verses for theft, homicide, assault, contracts,

fraud, inheritance, criminal and civil procedure, appeals, and so on. I asked

Hamid how often he used this book. His reply was: "not much."

He told me that when he felt strongly about a case, about an injustice

(here he also used the word zulm) that had been done, he would preface

his legal briefs with a Qur'anic verse to indicate to the judge the impor-

tance of that case. Otherwise, he said, he simply used the relevant legal

statutes when he made his case arguments. In fact, I did see him use a

214 c h a p t e r s i x

Qur'anic verse in a case for some defendants, one in which he felt that the

plaintiffs had blatantly abused the formal legal procedures. Many lawyers

expressed the same thoughts as Hamid.

What is interesting about this is that an appeal is made to the judge as

a Muslim in an effort to get him to correctly apply principles of the law

that ideally exist apart from and are indifferent to whether he is a Muslim

or not. In other words, the appeal is to his biases in order for him to be

objective.

Nevertheless, Hamid expressed a general reluctance or discomfort

about using verses in this way, even though he saw himself as a religious

person. He explained that any verse he used in his case could be equally

used by his opponent in making the opposite case. This, he felt, was inap-

propriate to the use of these verses. He, like the Islamist lawyers who

did this, saw the verses of the Qur'an as sanctified above the processes of

routine legal argumentation and manipulation and therefore to be used

with a measure of care.

This attitude was markedly different from the one I found concerning

the use of international human rights discourse and documents as part of

case argumentation. Indeed, lawyers like A b d el-Mäged employed such

discourse often, even if somewhat cynically as part of a legal repertoire. In

one civil compensations suit before the court, A b d el-Mäged packed his

case file so full of international human rights documents and reports that

the head judge complained loudly that the file was too big. International

human rights discourse, for all of its shortcomings as highlighted by A b d

el-Mäged and other Islamist lawyers, was nevertheless a legal discourse,

and as such had some influence on the judge. In this case, A b d el-Mäged

employed this discourse in an effort to have the judge agree to the otherwise

exorbitant amount of monetary compensation he was asking for his client.

Here an interesting contrast emerges: Qur'anic verses, sanctified above

the law, were used to appeal to a judge's biases as a Muslim in order to

make him see though perversions of the law and thus act objectively. Hu-

man rights, by contrast, though essentially a legal discourse, was u s e d — a s

in the case of A b d el-Mäged a b o v e — t o bias the judge, in this case toward

giving greater compensation.

A Different Language of Justice

I have so far highlighted four dimensions of my fieldwork with Islamist

lawyers: their notion of the human as essentially situated (less a subject of

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 215 abstract rights and obligations than one of specific associations, commit-

ments, and emotional investments); their concept of zulm as a motivation

and as associated with perversions of the law; their invocations of Islamic

narratives to frame their work and the experiences of detainees; and the

tactical but reverent uses of Qur'anic verses in their legal briefs in order to

highlight and challenge zulm. I would submit that these, taken together,

intimate a language of justice, rooted in and resonant with Islamic tradi-

tions, that offers a rare critique of international human rights discourse

and brings out a set of fundamental relationships between the liberal rule

of law and the modern state.

I take the notion of a language of justice from Talal Asad,23 where he

contrasts two different ways of talking about racial justice in the United

States during the civil rights movement, one represented by Martin Luther

King Jr., the other by Malcolm X. A s I employ the notion here, it means

more than the terms of discourse these Islamist lawyers used, but also the

practices they were a part of and how they articulated with the ways these

lawyers lived. Everything I have described ethnographically, from A b d

el-Mäged's comportment, the lawyers he worked with, their views, and

their ways of arguing and litigating, articulates the language of justice I

am trying to describe.

The critique of human rights articulated by this language of justice

does not easily fit into the typical frameworks of debate about the subject.

It does not fit, for example, into the universalism versus relativism debate.

That is, it is neither about whether or when exceptions should be made

to otherwise universal rules in the name of cultural difference, nor about

whether the rules themselves are except ions—not universal but really the

products of a culturally specific history. Rather, the critique concerns the

notion of "the human" in human rights discourse. However, although it

posits "the human" as essentially situated, it is not the same as the com-

munitarian critique, even though it bears some resemblances. It does not

posit that the notion of "human" in human rights discourse is too thin,

but rather, that it is too wide. That is, the criticism posits that the notion

of "the human" will always necessarily express a hierarchy of sensibilities

and values within the set of rights international human rights discourse

espouses as universal. A n d that consequently there will be greater emo-

tional investments attached to the violations of some of these universal

rights than to others. There will also be greater emotional investments

attached to the violations of the human rights of some people than to

the violations of other people. The idea of human rights as universal and

without discrimination can therefore easily serve as a cover of indifference

216 c h a p t e r s i x

that permits the perpetuation of various inequalities, indignations, and

cruelties. Yet the argument is not that the range of rights set forth by in-

ternational human rights discourse should therefore be narrowed. O n the

contrary, as mentioned earlier, Islamist lawyers support nearly all of the

rights set forth in the U N declaration and other international instruments,

and wish that the Egyptian state would more truly honor them. Neither

is their argument that equal value ought to be given to each and all of

the rights espoused by international human rights discourse. Rather, their

argument is that it is impossible to do so. The problem with the "human"

in human rights discourse is that it has nothing to do with the way that hu-

man beings actually are. The problem is that the "human" in human rights

discourse can correspond to no possible human being, and thus cannot,

by itself, provide sufficient motivation for any human being. Thus their

argument is not about whether or not human rights are justified; rather, it

is that human rights, by themselves, cannot justify anything. For they will

always be preceded by the rooted, hierarchically differentiated sensibili-

ties and values that give them any of their apparent force.

I do not say that others have never made such criticisms of international

human rights discourse. But while some of them have been articulated

by some theorists long ago, they nevertheless remain uncommon today.

Thus at least one scholar long ago pointed out the difficulties inherent in

the phrase "without discrimination" in the U N charter's requirement to

promote human rights.24 For example, racially segregated bathrooms are

clearly a question of discrimination, but (in the United States, at least)

gender-segregated bathrooms do not even arise as a question of discrimi-

nation. Gender segregation within a bus, or within the seating arrange-

ments of a classroom, however, would definitely raise the question of

discrimination. In another vein, a case of attempted or successful censor-

ship typically generates a high level of indignation among people; people

evicted from their homes and rendered homeless due to their inability

to pay rent (a situation that is becoming increasingly common) does not

raise the same of levels of indignation, even though the rights to housing

and some form of social and economic security are equally espoused by

the U N declaration. Involved in these differences are variable and deep-

rooted sensibilities that infuse and orient human rights.

Another theorist, Hannah Arendt, also long ago pointed out how the

notion of the "human" provided insufficient motivation for the protec-

tion of the rights of those who had become bereft of any situated identity

and had only their status as "humans."25 Arendt and other scholars have

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 2 1 7

also pointed out the contradiction involved in the fact that human rights,

though an international discourse, must necessarily be guaranteed by and

implemented within nation-states and will thus always be secondary to

matters of public policy and public order whose primacy is crucial to the

definition of state sovereignty. Others have highlighted a complementary

fact: that classifying people as citizens or residents of particular states

renders them subject to forms of violence and discrimination that can-

not be deemed violations of universal human rights—such as collateral

damage.26

The criticisms of Islamist lawyers outlined above combine elements of

these latter critiques and also argue that human rights will always be se-

lectively applied. Indeed, according to them, it couldn't be any other way,

and it is hypocrisy to pretend that it could. For them, a discourse of human

rights is a good idea, yet it cannot be anything more than an instrument of

legal manipulation to which they can therefore only remain ambivalent.

O n the other hand, Islamist lawyers are not at all ambivalent about

those principles espoused in the liberal rule of law that are central to hu-

man rights—such as the independence of the judiciary, the necessity of

public trials, the notion that the ruler and the ruled should be equally

subject to the law and even the principles of formal legal equality. Indeed,

they are strongly committed to these principles and to the legal profession

as a whole. Their use of Qur'anic verses to preface their legal briefs was

one expression of that commitment.

This confronts us with a question. How could these lawyers be commit-

ted to liberal legal principles that, ideally, are not particular to any identity

or religion, and yet use narratives rooted in a particular religious tradition

in an attempt to activate those very principles? That is, what makes it pos-

sible for them to appeal to judges' Muslim biases to precipitate their legal

objectivity?27 Isn't this contradiction?

I would argue that this is less a contradiction than an expression of a

fundamental relationship between the modern state and the liberal rule

of law. This is because the rule of law, despite the ideals of independence

and formal equality it expresses, is still dependent upon the founding nar-

ratives that constitute both its legitimacy and the cohesiveness of the state,

and which are reflected in notions of "the public order." The public or-

der and the foundational narratives of the state do not entirely coincide.

They do, however, acquire an integral relation through the rule of law.

On the one hand, the foundational narratives of the state endow the law

with its legitimacy. On the other hand, a central task of the rule of law is

227 c h a p t e r s i x

to maintain the public order. The primacy of the public order, in turn, is a

fundamental principle of state sovereignty. A threat to the foundational

narratives of the state is thus inevitably construed as a threat to the public

order, even if there is no violence or mayhem involved, and the perceived

threat is mostly symbolic. A threat to the public order, in turn, can be seen

as a threat to the foundational narratives of the state, depending on who is

seen to pose that threat. In both cases, such threats can be used to justify

the temporary suspension of the rule of law through the declaration of a

state of emergency, and this shows up the intimate relations between the

foundational narratives of the state, the rule of law, and the public order.

The idea here is that the liberal rule of law, despite the presumptions

to universality embodied in its notions of independence and legal equal-

ity, is nevertheless rooted within a state that must both define itself and

promote a level of cohesiveness through particularist narratives. The sensi-

bilities these narratives are understood to express stand prior to and serve

to legitimize the rule of law, and thus the public order that it upholds. In

chapter 2 I highlighted one of the fundamental tensions that structured

public order interpretations of liberal f r e e d o m s — t h e tensions between

legal equality and majority sensibility. Within legal doctrine, the public

order is seen to be a fundamentally flexible concept because it is acknowl-

edged that the majority sensibilities considered central to its cohesion

necessarily change over time. For this reason the contents of public order

are always up for judicial deliberation and reinterpretation. The sensi-

bilities of the majority, however, are not necessarily the same as those

ostensibly promoted by the foundational narratives of the state. Although

they are always seen as intertwined, and would ideally coincide, within

legal practice it is recognized that they quite often diverge. When cases of

strong conflict are seen to arise between majority sensibilities and those

of the state's foundational narratives, they are typically resolved in favor

of the latter.28 This demonstrates the fact that the sovereignty of the state,

as a condition of possibility for liberal thought and practice, is also its

conditional limit. It reminds us of the fact that liberal notions of toler-

ance, harm, and equality are first and foremost principles of governance

within the framework of the modern state. It also helps to explain why the

public order remains so notoriously vague, shifting between legal equality

and majority sensibility, between majority sensibilities and those of the

state's foundational narratives, and between public morals and national

security—shifts that blur the distinctions between norms and exceptions,

and thus between the protection and the restriction of rights. To invert the

words of one political theorist, the universal principles of the rule of law

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 219

constitute an independent discourse, but one that is dominated (and en-

abled) by another: the necessarily particularist narratives that constitute

the personality of the state.29

These considerations bring to light the fact that what makes possible the

suspension of the rule of law is the very same thing that can set it back into

motion: the foundational narratives of the state and the rooted sensibilities

that are seen to hold the public order together. A n d this, in turn, explains

why Islamist lawyers were able to use Qur'anic verses to facilitate the lib-

eral principles of law that had been suspended. The Egyptian state draws

upon Islam as one of its foundational narratives, and so Islam is among the

narratives that authorizes the state's rule of law.30 The sensibilities of the

majority are also seen to be rooted in Islam, so it is considered central to

public order. By naming Islamists a threat to the public order, the state has

justified an ongoing state of emergency and a suspension of the rule of law.

Yet these Islamists identify with and draw upon the very same foundational

narratives that infuse the public order and the perceptions of its cohesive-

ness. By rendering the normal situation both precarious and ambiguous,

the long duration of the state of emergency in Egypt had forcefully shown

up the limits inhering within the rule of law. Those limits impelled Islamist

lawyers to resort to and draw upon the foundational narratives in an effort

to reactivate the law, even if only for the short duration of a court case.

To summarize: every state has foundational narratives, and they endow

the state's law with its legitimacy. Yet as they are outside the law and they

authorize law, they also constitute law's limit. However, these narratives

can always be used to refound, or reactivate, the law when it has been

suspended, just as much as their preservation can be the justification for

its suspension. The space of exception created by the ongoing state of

emergency in Egypt had enabled Islamist lawyers to express and employ

a language of justice, rooted in Islamic traditions and resonant with the

foundational narratives of the state, in order to set the law back in mo-

tion. That language, while it exhibits a critical dimension concerning "the

human" as essentially a subject of rights, nevertheless works to animate a

discourse—"the rule of law"—that reduces "the human" to essentially a

subject of rights.

Back at the C a f e . . .

' A b d el-Mäged never arrived. A s our friendship had grown, he had be-

come more and more lax with our meeting times, but this was the first

220 c h a p t e r s i x

time he just didn't show. It had been over an hour and a half already; the

ice cream had since melted, and the cafe workers were again annoyed.

Stood-up, embarrassed, and genuinely angry, I downed the rest of my

Nescafe, apologized profusely to the workers, slapped a fat tip on the table

and slipped out of the cafe. I decided not to even call him. T w o days later

I got a call from ' A b d el-Mäged. I was surprised and indignant when he

expressed anger at me for not having called to check up on him. What

I didn't know was that because of the precarious situation of politically

active lawyers, it had become customary for each and every one of them

to keep tabs on one another and to inquire if one had not been seen for

some time. Despite their differing and opposed ideological orientations,

an ethos of political friendship had developed between them, and their

checking up on one another was one expression of this ethos. He thought

I would have understood this by now. My indignation melted away when

he explained that he had been in prison for the last two days.

We met a couple of hours later. It turned out that A b d el-Mäged had

long been under surveillance due to his political activities. This required

him to report weekly to his local police station and answer questions about

his activities during the week. A couple of days ago the police took him

in and threw him into the local jail. H e was released without any charges

having been stated or pressed against him. While he didn't know why he

was thrown in jail, he surmised that the local police officer to whom he

regularly reported had been unhappy with his increasing work with de-

tainees. But again, he wasn't sure, and he figured that anyhow, the police

officer wouldn't do much more to him than had already been done. The

work would continue.

A f t e r telling me this, A b d el-Mäged sighed and said that as he was sit-

ting in the jail, he kept on thinking that nothing could be as bad as Egyp-

tian jails, and that if only the jails were more like they were in the United

States. I was surprised at his words. During this time I happened to have a

film, written for the screen by a now famous poet named Jimmy Santiago

Baca, who had spent a long period of time in a maximum security prison

in the United States. Based on his autobiography, the film, titled Blood

In Blood Out (Bound by Honor), describes what U S prison life is like

with a rare depth of knowledge and an intensity characteristic of Baca's

poetry. I suggested to ' A b d el-Mäged that we watch the film together, and

that I would translate for him. That way, he could better compare U S and

Egyptian prison life.

Watching with growing astonishment the prison scenes unfold, he kept

on asking me: this happens in the prisons there? D o they let this happen

Egypt: An Exceptional State or a Secular Future?

Indeed, one wonders whether in fact the situation in Egypt is at all excep-

tional. Egypt is of ten described as a repressive, authoritarian state, and

many studies of it proceed upon that premise. Its extended state of emer-

gency, numerous presidential decrees, apparent abuses of constitutional

powers, use of torture, and flouting of international conventions are all

seen to provide ample evidence for this. A r g u m e n t s made about Egypt

are typically considered to be specific to it, or to a modernizing and not

yet fully modern state, because of its presumed exceptional status.32 They

do not have any wider ramifications and of fer no understanding for the

nature of modern power more generally.

A n d yet there is now a large body of literature, some of it decades old,

that documents how Western democratic states have increasingly relied

on emergency powers to conduct their domestic affairs even since before

World War II. Western E u r o p e a n states used emergency powers for state

reconstruction and the maintenance of colonial control. In the United

States emergency powers began to be increasingly invoked since Roos-

evelt's attempts to counter the Great Depression of the 1930s. Since a long

time, according to this literature, the exception has become the norm.3 3

Exceptional measures have become so profoundly a part of U S gover-

nance, notes legal and political philosopher Will iam Scheuerman, that

one only needs to turn to a revealing 1974 report by the United States Sen-

ate—hardly a bastion of radical critics of contemporary liberal democracy—-to

gain a sense of the depth of the problem. As two American senators soberly

noted in their introductory comments, the United States as of 1974 had

"on the books at least 470 significant emergency powers statutes without time

limitations delegating to the Executive extensive discretionary powers, ordi-

narily exercised by the Legislature, which affect the lives of American citizens

in the prisons there? A f t e r a while, he told me to shut the video off, that

he had seen enough. A b d el-Mäged hadn't known that the United States

had the largest incarcerated population (and rates) in the world, in prisons

some of whose conditions rivaled the worst, and that some U S minorities

lived under expansive police surveillance and almost unbridled prosecuto-

rial power.31 H e sat in a dejected, sunken silence for a long time. For A b d

el-Mäged, neither E g y p t nor the United States was now any good.

ISLAMIST LAWYERS IN THE EGYPTIAN EMERGENCY STATE

222 c h a p t e r s i x

in a host of all encompassing ways. This vast range of powers, taken together,

confer enough authority to rule this country without reference to normal con-

stitutional processes."

Even during peacetime, the American president since 1945 has exercised sub-

stantial discretion to settle strikes, initiate price controls, limit exports, deal

with the exigencies of the so-called drugs war, and counteract unwanted im-

migration. Nor have recent years witnessed a reversal of those trends that en-

couraged Senators Church and Mathias to conclude their 1974 report with the

observation that "[ejmergency government has become the norm within the

United States."34

Scheuerman further notes that

what makes the trend toward "rule by exceptional power" all the more dis-

turbing is how ubiquitous it has become within liberal democracy. Substantial

comparative evidence describes similar trends at work in many other lib-

eral democracies this century, despite major differences in legal culture and

institutions.35

Other recent literature has pushed the argument that exceptional power

is in fact a constitutive and structuring principle of the modern regulatory

state, and that the criteria for distinguishing the normal from the excep-

tional have always been indeterminate.3 6 W h e t h e r or not the increasing

use of emergency powers is a historical matter or a constitutive feature,

the situation in Egypt can no longer be described as an exceptional one.

Rather, that situation is the best indication of Egypt's full modernity. A n d

the possibility that it offers lessons for a broader understanding of our

contemporary condition.

In this regard the relationships between the ostensibly secular and re-

ligious languages of justice that we see in Egypt might clarify something

about the critical claims of political theology, which are often seen as a

form of critique of secularism, its power and its promises. It is worth not-

ing that political theological claims arise most explicitly and poignantly

during states of emergency, whether this be the Weimar G e r m a n y of Carl

Schmitt's time or the current "War on Terror" that has encompassed much

of the globe today. Is this because the genuinely "rel igious" core of the

state and its significant political concepts reveals itself in full clarity once

the veneer of the rule of law is removed?

i s l a m i s t l a w y e r s i n t h e e g y p t i a n e m e r g e n c y s t a t e 2 2 3

The Egyptian case would indicate that this is not so. Rather, it shows

that the conditions by which political theological claims acquire their force

and efficacy have to do with the relationships between the foundational

narratives of the state, the rule of law, and the public order that I have

discussed above. It was that set of relationships that enabled the rise of

religiously rooted and resonant languages of justice, which, though critical

of the ostensibly secular legal languages that had been suspended, never-

theless aimed to bring them back into motion.

I noted that the concept of public order, its internal tensions and ambi-

guities, its broader associations, and its particular place within a historical

conceptual-affective structure of power, was central to these possibilities.

But this is not because the public order was originally an Islamic, or even a

Christian, concept.37 It is rather because the protection of the public order

is the basis for the active principle of secularism, because the public order

exhibits an irresolvable tension between formal legal equality and major-

ity sensibility, and because, as an expression of state sovereign power, it

has become connected to the concept and practice of national security,

through which exceptions to the law are increasingly enacted.

In Western democratic states, the relationship between the active prin-

ciple of secularism and national security is becoming increasingly pro-

nounced. This is due to the fact that the national security paradigm has

attained a nearly global dominance today, and that it is taking the form of

an unending "war on terror"—by which is meant specifically "religious"

terror. A s states of emergency become increasingly normalized, the limits

of the rule of law will become more starkly evident. But Egypt has de-

ployed the concepts and practices of national security for decades now,

and explicitly under the pretext of defending against religious violence.

We should consider the possibility, then, that Egypt shows us one possible

secular future, one toward which Western democratic states are increas-

ingly moving under the national security paradigm and the pretext of the

war on terror. It is a future that portends the growth of religiously rooted

and resonant languages of justice, enabled by and ever more deeply inter-

woven with the ostensibly secular legal languages that they critique but

nevertheless try to facilitate. A future where the claims of political theol-

ogy become ever more explicit and poignant, even as the principles of

state sovereignty and national security become ever more entrenched in

social life. This may not be the only secular future, but it is one to which

secular power is well disposed.

Epilogue

No book about secularity and religion in Egypt can do without a dis-

cussion of the unprecedented events that began on January 25,2011.

The protests that began on that afternoon became a massive wave that

overtook the entire country and riveted the world, bringing down Egyp-

tian president Hosni Mubarak's thirty-year rule in just eighteen days.

Since then Egypt has embarked upon a precarious process of removing

and transforming many of the entrenched elements that defined the for-

mer regime.

Is there anything that can be learned from these events that goes be-

yond Egypt? That is, beyond the typically narrow analytical frameworks

(i.e., "Middle Eastern," "Islamic," "authoritarian" states) within which

Egypt is usually framed? Might they tell us something about secularism

as a modern historical phenomenon, about democracy as a modern state

practice and contemporary sensibility? These are some of the questions

I would like to reflect upon here. This will provide me an opportunity to

summarize some of the central arguments of this book and show how they

might usefully apply to current events. It might also help stake out the dif-

ferences of my approach from some of those that dominate current theo-

rizing on secularism—in particular, the approach of political theology.

A t the time of this writing, the situation in Egypt continues to change

rapidly. N o one knows how it will develop or how things will ultimately

end up. Nevertheless, the situation has already been framed within the

very narrative I set out to critique at the beginning of this book; namely,

that Egypt is, and has been, on a long and precarious path toward modern-

ization, democratization, and secularization, always liable to serious set-

backs at anytime. If it doesn't regress, it is still liable to remain stuck in its

attempt to move toward a future already defined by the paradigmatic lib-

e p i l o g u e 225

eral, secular, democratic states of the West. Or at best it will define its own

version of the modern, which might deviate from those Western-inspired

paradigms (i.e., an Islamized liberalism, a different model of secularity, a

customized mode of political representation). Either way, the events in

Egypt remain specific to it, or to the region of which it is a part. Neither

the modern past of Egypt nor its current history are seen as forcing us to

revise our fundamental concepts of democracy and secularity within the

modern state.

Take, for example, the fact that throughout the initial protests, and

especially right after Mubarak's resignation, many Western commentators

expressed concern about stability in the Middle East. In particular they

connected the question of regional stability with the question of whether

or not Egyptians would enjoy democratic freedoms. The idea was that

if Egyptians established a genuinely democratic system in the country,

then they would enjoy democratic freedoms and the region would remain

stable. If, however, Egypt were to become a religious state (i.e., ruled

by the Muslim Brotherhood), then Egyptians would neither have these

freedoms nor would the region remain stable. Other commentators re-

sponded to these concerns with assurances that the Muslim Brotherhood

had only partial support in the population, were ideologically heteroge-

neous, would have to rule in coalition with other secularly oriented par-

ties, and would therefore moderate the political positions they took. Some

further argued that the Muslim Brotherhood's highly pragmatist political

approach would temper some of the more ideologically inclined Islamic

currents that had surfaced after the fall of Mubarak. This way, both demo-

cratic freedoms and regional stability could be preserved. In this narra-

tive, a democratic system was associated with secularity and counterposed

to secular-religious ambiguity. Regional stability was thereby thought to

hang on Egypt's ambiguous future—specifically, whether it was to be a

secular or a religious state.

This, of course, was the very question I set out to question at the outset

of this book. The aim was not to show that it was a false or fictional ques-

tion, but to explore instead the conditions of its inexorably confounding

power. Through this exploration, recounted in the book, I was led to revise

my understanding of secularism and to approach it not in terms of the

norms it imposes but the questions it obliges us to ask and answer. That is,

it was not analytically useful to assess the norms found in Egypt by judging

whether or not they conformed to secular standards, because those stan-

dards are seldom clear, highly contested, and often changing anyway. It

2 2 6 e p i l o g u e

was more useful instead to explore the underlying, long-standing questions

to which those norms are continually adduced, established, contested, and

transformed as answers. That is why I articulated an approach to secular-

ism as a problem-space—a historical ensemble of questions and attached

stakes; the question that anchors this historical ensemble is where to draw

the line between religion and politics and what the limits of religion in

society ought to be; the attached stakes are those rights and liberties typi-

cally identified with l iberalism—such as equality, tolerance, and freedom

of belief. This approach goes beyond the idea of secularism as a political

doctrine. That is because, even construed as a doctrine, secularism de-

pends for its intelligibility on the premise that there is an answer to the

question of where to draw the line between religion and politics and where

the proper place of religion should be. It also presumes for its intelligibil-

ity that the answers to these questions make a fundamental difference to

the kinds of rights and liberties that can be had, and how collective and in-

dividual life can therefore be lived. This space of intelligibility is what I call

the problem-space of secularism. That the questions and stakes that con-

stitute this problem-space are long-standing is evident; that the answers to

them have been changing and contested is equally clear. What is important

to note, however, is that though the problem-space of secularism is rela-

tively recent historically (as I noted in the introduction, during medieval

Christian and Muslim times, a principled distinction between religion and

politics was not typically seen to be connected to a range of fundamental

rights and liberties), it has now become indispensible to the practical intel-

ligibility of our ways of life and many of the ethical positions we take. It is

therefore difficult to remain indifferent to this problem space.

It has been historically, and remains today, the case that the state has

the right to ultimately decide the central questions that constitute the

problem-space of secularism. This right of decision is, and has been, an ex-

pression of the state's sovereign power. This sovereign power of decision,

in turn, is typically vested in state legal authority and the structures of

the rule of law. The fact that it is state sovereignty that ultimately decides

where to draw a line between religion and politics means that it is a power

that stands, importantly, prior to religion and politics. Since it stands prior

to both, it cannot be pinned down to either; as a result, it acquires an

ambiguous, seemingly political-theological character. This is not because

state sovereignty has ostensibly religious origins or an intrinsically religious

nature, but rather because of its particular position within the structure of

secular decision making, where it stands prior to religion and politics but

e p i l o g u e 227

is not indifferent to the question of how to distinguish and separate them.

This position puts it at the source of the irresolvable ambiguities continu-

ally produced by the problem-space of secularism, where the line between

religion and politics comes to be blurred even in the process of its being

drawn. These ambiguities, however, do not undermine secular power; on

the contrary, they work to sustain and even increase it precisely because

they constantly call the line between religion and politics into question.

That is, they create a space of critique internal to secular power, one that

animates, sustains, and even further entrenches the question of religion

and politics and the proper role of religion within social life.

Importantly, the claims of political theology acquire their plausibil-

ity, force, and very point from within this internal space of critique, quite

apart from their status as truth. Nowhere is this more evident than in the

use of political theology as an explanation of secular v io lence—that is,

the idea that the violent, sacrificial, and repressive tendencies of secular-

ism derive from an unacknowledged theological dimension within it, and

which it projects and imposes as neutral and universal.1 Not only does such

a view potentially reaffirm all too conventional ideas about the dangers of

religion and of improperly mixing it up with politics, but it also expresses

an underlying concern about where the line between religion and politics

should be drawn and where the proper place of religion ought to be. That

is to say, it expresses the constitutive questions and stakes of the problem-

space of secularism. But besides confirming conventional notions of reli-

gion, political theology also offers up an attenuated conception of politics,

identifying it too readily with the form and content of state sovereignty—a

point to which I will soon return. In short, political theology cannot give us

perspective on the power of secularism. That is because it subsists within

and is an expression of the very ambiguities by which that power works.

The power of secularism is not the power of the norm, but of the question

and how the ambiguities of state sovereignty and legal authority continue

to animate it.

Like political theology, the question of whether Egypt is a secular or a

religious state is not an aberration from this power, but one manifestation

of it. That this question has been continually asked both in and outside of

Egypt is just one indication that the country is fully subsumed within the

problem-space of secularism, as are the United States, England, Israel,

France, Germany, and many other states that continue to exhibit secular-

religious ambiguities and that stake fundamental freedoms upon their

clarification. A n d this will remain the case until the question of where to

2 2 8 e p i l o g u e

draw a line between religion and politics is no longer deemed necessary

to ask in relation to the range and distribution of fundamental rights and

liberties.

The idea that the power of the problem-space of secularism derives

from the ambiguities of the sovereignty and legal authority on which it

depends is well illustrated by some of the events that occurred after the

initial protests. It might also help frame a suggestive contrast between

these protests and the events in their aftermath. One of the things that

marked this aftermath was the astonishing expansion of the scope of state

law and legal power, from which even Mubarak and his family were not

immune. Most remarkable was the vigorous legislative activity enacted by

what was supposed to be only a provisional government, one whose laws

required approval by Egypt's interim ruling military council (the Supreme

Council of the A r m e d Forces). Nevertheless, such law-making was seen

as necessary to provide a stable foundation for the creation of a genu-

inely representative and democratic polity; it was part of the extension

of democracy. Notably, it was in the context of this legal expansion that

the question of whether Egypt was, and was to be, a secular or a religious

state arose quite continually. The new law for political parties is a case in

point: aimed at facilitating the formation of political parties for upcom-

ing democratic elections, it retained the Mubarak-era ban on explicitly

religious parties but dropped previous language precluding parties based

on a "religious frame of reference." A t the same time, the new law prohib-

ited parties whose tenets and platforms contradicted the basic principles

of the constitution, or the requirements of national security and national

unity. Given, however, that article 2 of the constitution designates Islam as

the religion of the state and the principled basis for law and legislation, it

was unclear what this prohibition might mean. For instance, could a party

whose program called for or implied the elimination of article 2 be prohib-

ited? How and by whom would the requirements of national security and

unity ultimately be decided, especially during this transitional period?

But where the question of Egypt's secularity or religiosity arose most

forcefully was in the debates that unfolded in the run-up to a major refer-

endum over a set of proposed constitutional amendments. Almost imme-

diately after Mubarak's resignation, the interim military council appointed

a committee to draft a set of constitutional amendments to pave the way

for democratic elections that would create a new, genuinely representa-

tive, civilian government. These amendments were to be put to a referen-

dum, and if approved, were to be soon followed by elections. Although

e p i l o g u e 229

it was understood that these reforms were deliberately limited in scope,

undertaken with the view that the entire constitution would soon be sub-

ject to a democratic overhaul, they nevertheless became the focus of a

ferocious debate.

Many who urged voting against the amendments were concerned that

their approval would lead to elections too soon, leaving the diverse forces

involved in the protest movement too little time to organize themselves

into successful political parties. A n d that consequently the winners of the

upcoming elections would be overwhelmingly those whose forces were al-

ready well organized—in particular, former ruling party members and the

Muslim B r o t h e r h o o d — w h o would then appoint an unrepresentative con-

stitutional committee to draft a new constitution. A no vote, by contrast,

would promote the direct election of a constitutional drafting committee

to draft an entirely new constitution, which, if approved by referendum,

would then lead to governmental elections. Not only would this establish

a genuinely democratically forged constitution as a prelude to elections,

it would also provide more time for organizing diverse political p a r t i e s —

even if this left the interim ruling military council in power for a little while

longer. One reason why some of those opposed to the amendments were

willing to accept extended army rule was their fear that article 2 of the

present constitution, which makes Islam the primary source of law, would

be retained or possibly even be expanded within the new constitution.

This was even though the amendments themselves had nothing to do with

article 2 or the question of religion in general. Nevertheless, these fears

seemed to be confirmed by the Muslim Brotherhood's extremely vocal

support for the amendments.2

Some of those who backed the amendments, in turn, framed their sup-

port in terms of "saving" article 2, and thus the explicitly Islamic dimen-

sion of the state.3 They argued that because a no vote would effectively

nullify the existing constitution, article 2 would no longer be in force. A

few of those voices further argued that voting in support of the amend-

ments should therefore be considered a religious d u t y — a n argument

that provoked strong reactions on all sides and that was rejected by many,

even and especially those who considered themselves to be religious.

Some of the Islamist lawyers with whom I had worked—including ' A b d

e l -Mäged—voted against the amendments, because they thought that a

constitutional drafting committee elected directly by the people would

better fit the spirit of the protest movement. When I asked about article 2,

I was told that this was not a worry because it would be difficult to remove

230 e p i l o g u e

either way, and that, in the end, constitutions only encapsulate basic

governing principles that are common among all countries and thus

change very little between them. Even though they voted against the re-

form, these lawyers now support it because, again, this fit the spirit of the

protest movement, focused on the democratic will of the people. Never-

theless, the overwhelming support shown for the amendments during the

referendum left some people wondering how effective the calls for saving

the Islamic character of the state might in fact have been. A number of

activists subsequently tried to push the idea that a set of extraconstitutional

principles ought to be drawn up in order to guide the future constitutional

committee in its drafting process. The interim military council seemed,

for a while, to be listening to these demands. One of the outcomes of this

was a massive protest dominated by ideologically inclined Islamists,4 who

claimed that their democratic voices were being usurped by an unrepre-

sentative minority. Moreover, the activists who pushed for these extracon-

stitutional principles soon came to realize that the military council had a

very different idea of what they entailed. It was less concerned with ensur-

ing democratic ideals than with guaranteeing the indispensable role of the

military in preserving those ideals as part of national security.

What these debates highlight is how the question of Egypt's secularity

or religiosity, of where to draw the line between religious and political

domains arises most forcefully in relation to issues of law and state sov-

ereignty, but without ever being resolved by them.5 The ambiguities they

continue to generate sustain the obliging power of the problem-space of

secularism and demonstrate the difficulty of remaining indifferent to it.

But to the extent that all of this legislative and plebiscitary activity repre-

sents an extension of democracy, it suggests that the relationship between

representative democracy and an intractable secular-religious ambiguity is

not one of simple opposition, as is so often assumed. It shows that secular-

religious ambiguity goes hand in hand with democratic sovereignty even

while seeming to undermine it. It also poignantly illustrates one of the

broader arguments of this book: how secular power brings together two

contradictory tendencies—a growing space of normative critique along

with the increasing assertion of state sovereign capacity within social life.

The form and consequences of the state sovereignty indexed by these

constitutional debates and the referendum contrast sharply with the

manifestation of sovereignty that we saw in the initial protests. From the

vantage point of the tradition of democratic legitimacy, the protests were a

manifestation of pure popular sovereignty. To contrast it with the form of

e p i l o g u e 231

state sovereignty discussed above, I will call it bare sovereignty. Like state

sovereignty, bare sovereignty stands prior to religion and politics. Unlike

state sovereignty, however, this bare sovereignty is utterly indifferent to the

question of where to draw a line between them. It stands apart from the

modern game of defining and distinguishing religion and politics, and does

not partake of it.6 Not surprisingly, the protests expressed every potential

language of justice, secular or religious, but embraced none. In the sense

that it stood prior to religion and politics, and that it was indifferent to

the question of their distinction, the bare sovereignty manifested by the

protest movement stood outside the problem-space of secularism. In that

sense, it represented a genuinely asecular power.

Asecularity is a term I used earlier, in my description of the practice

of the fatwa in the Fatwa Council of Al-Azhar . I proposed that term to

indicate an indifference to the questions and concerns of the problem-

space of secularism, an avoidance of the conceptual-affective structures

through which secular power worked. This was even though the Fatwa

Council and the practice of the fatwa was a product of modern reform

and was not in any particular way opposed to the state. I contrasted this

with an Islamist lawyers' movement, described in the previous chapter,

that, though directed against the state, nevertheless articulated a political-

theological language of justice completely ensconced within the problem-

space of secularism and aimed at establishing the liberal legal structures

through which secular power worked. The recent protest movement dif-

fers from this Islamist lawyers' movement in that it did not articulate a

political theology. This was even though it was directed against the state

and was animated by a set of principles with which these lawyers would

not disagree. This shows that asecularity can be expressed in many dif-

ferent practices, spaces, and movements, some of them readily identified

as rel igious—like the Fatwa Council, others not so easily s o — l i k e the

protest movement. Because what matters is not whether or not norms are

secular or religious, but that the questions to which they are adduced and

contested as answers are not seen as necessary. It represents a situation in

which one can be genuinely indifferent to those questions, the ways that

particular stakes are attached to them, and their seeming indispensability

for our ways of life.

To say, then, that the protests were asecular and indifferent to the ques-

tion of religion and politics is not therefore to say that they were apolitical

or areligious. Neither is it to characterize them solely in negative terms,

that is, as an overlapping consensus enabled by the narrow single goal of

2 3 2 e p i l o g u e

Mubarak's resignation. O n the contrary, they expressed with increasing

clarity a set of animating principles7 over the eighteen-day period in which

they developed. One of those principles was that no o n e — n o one person,

group of people, social or economic class, religious or secular political

orientation—should have a monopoly on power. Related to this was the

idea that no one person or group could embody the aspirations of the

protest movement. It is worth noting that during the protests no particular

person or organization emerged as the leader. Even those who were hailed

for having sparked the protest movement (such as Google executive Wael

Ghonim) rejected any such attribution. Al l efforts were deliberately col-

laborative, an ethos that only grew as the protests did. A second principle

was silmayya, or "peacefulness," which consistently guided the actions of

the protesters. Silmayya cannot be said to simply mean "nonviolence,"

as it included certain forms o f — a l b e i t minor—violence, particularly in

defense against police brutality. Rather, as Samera Esmeir and Saba Mah-

mood have insightfully noted, it seemed to be part of a broader tactic

of strategically exploiting the tensions and contradictions of the state's

mechanism of violence (i.e., tensions within the army, between the army

and the state security forces) so as paralyze it, thereby creating a space

for the protests to assert themselves and grow. Linked to this was yet a

third principle, which was that the national security paradigm, which had

gripped Egypt for so long and become intensified under its "war on ter-

ror," had to be completely dismantled.8 The national security paradigm

should not be conflated with the notion of a state of emergency to which

it is related. Neither is it exclusive to Egypt. Rather, it is a now nearly

global paradigm of which many states, including Egypt, partake, one that

normalizes a condition of constant threat and transforms the emergency

response into a disposition of the state and of everyday life. The protest

movement was directed not just against the state of emergency that long

obtained in Egypt but also against the underlying paradigm that had in-

creasingly normalized it.

A further analysis of these and other important principles articulated

through the protests is beyond the scope of this epilogue. But what is in-

teresting and important here is that they were articulated along with an

indifference to the question of where to draw a line between religion and

politics. A n d that is the peculiar paradox of the protest movement, part of

what made it such an extraordinary moment of asecularity. N o doubt such

moments are extremely fragile in the face of the powerful legal conditions

that set in place and continue to animate the problem-space of secularism,

e p i l o g u e 233

as we saw in the aftermath of the protest movement.9 Nevertheless, they

do open up spaces for us to think beyond our current predicaments. Here

it is worth noting that the condition of asecularity these protests mani-

fested was also associated with a genuine ethos of democratic sensibility.

In this regard Talal A s a d makes some remarks that might illuminate

some connections between religion, politics, and secular power and help

us think through the possibilities that asecularity provides. In an article

titled "Thinking about Religion, Belief , and Politics"10 he distinguishes be-

tween "democratic sensibility as an ethos" and "democracy as the political

system of the state," and goes on to say that

the former . . . involves the desire for mutual care, distress at the infliction of

pain and indignity, concern for the truth more than for immutable subjective

rights, the ability to listen and not merely tell, and the willingness to evaluate

behavior without being judgmental toward others; it tends toward greater in-

clusivity. The latter is jealous of its sovereignty, defines and protects the subjec-

tive rights of its citizens (including their right to "religious freedom"), infuses

them with nationalist fervor, invokes bureaucratic rationality in governing them

justly; it is fundamentally exclusive. My point is not to make an invidious com-

parison between sensibility and politics, not to argue that the two are necessar-

ily incompatible. I simply ask whether the latter undermines the former—and

if it does, to what extent.

Following Asad , we might say that the problem-space of secularism falls

within the purview of the state, its sovereignty, its expanding regulatory

capacities, and its propensity to undermining the dispositions and atti-

tudes he describes of a democratic ethos. This might be one way to con-

strue one of his statements in the essay, where he writes:

One might suggest, finally, that the modern idea of religious belief (protected as

a right in the individual and regulated institutionally) is a critical function of the

liberal democratic nation-state but not of democratic sensibility.

More, one might further suggest that this continual undermining is part of

the way that secular power w o r k s — b y continually effecting a gap between

the aspirations of secularism's political i d e a l s — t o l e r a n c e and religious

f r e e d o m — a n d the attitudes normally thought to come with t h e m — a

generous disposition and a democratic sensibility, as I noted in the intro-

duction to this book. A s I have shown throughout its chapters, one of the

2 3 4 e p i l o g u e

consequences of this constant undermining is the increasing assertion of

state sovereignty into broader and more intimate domains of social life.

To the extent that secular power enables the assertion of state sovereignty

into social life, we should see it as not only as a means to regulate religion,

but also as one modality by which the state maintains a monopoly on poli-

tics. It is a means by which politics becomes aimed at and identified with

the state, and increasingly defined in the terms and forms of state sover-

e ignty—such as the friend/enemy distinction, decisionism, defense, and

security. The idea that secularism is as much about defining and regulating

politics as it is religion should be evident from any perusal of its history.

It is a fact whose importance, however, has been obscured by analytical

frameworks like political theology, which too readily accepts the premises

of secular doctrine, such as some crucial identification of politics with the

state and its sovereignty.

But what this manifestation of asecular, bare sovereignty of the protest

movement shows us is that it may not be necessary to identify politics

with the forms and terms of the sovereign state or to have a principled

distinction between religion and politics in order to express an ethos of

democratic sensibility. Or, to put it more precisely, one may not be obliged

to ask and answer the question of where to draw the line between religion

and politics in order to foster the mutual care, attunement to pain and dis-

tress, concern for truth, nonjudgmental disposition, and tendency toward

inclusion by which Asad characterizes this ethos. Indeed, the only way to

obtain it might be to be indifferent to the question of their distinction and

the set of stakes historically attached to it.

* * *

But what if Islamist-oriented forces win the upcoming elections in a land-

slide? Wouldn't then Egypt's secular-religious ambiguities become re-

placed by c lar i ty—the clarity of a staunchly religious state? Indeed, one

can easily conjure up terrifying images of such an event. Women forced

to veil. Young bearded men roaming the streets, threatening and beating

those seen not to conform to religious edicts: beards not long enough, veils

not strict enough, obligatory prayers not performed often enough. Copts

fleeing in droves, abandoned churches converted to mosques, famous au-

thors banned, or condemned to prison or even worse. Intransigent dog-

matism and unbridled intolerance reigning everywhere, in the midst of

financial ruin and economic poverty. A n d on top all this, strident calls

e p i l o g u e 235

against the West and Israel. It would be an enormous disappointment, a

disappointment that many in the West are bracing for. Terrifying images,

whose common currency and easy circulation in Europe and the United

States suggest that they are secretly seductive too. There may be a kind of

jouissance in seeing one's worst fears of the other confirmed.

O f course, no one can predict the future. But against the power and

secret savor of these images, I suggest that Egypt's secular-religious am-

biguities will stay, if not become even more pronounced. The conceptual-

affective structures, ways of authorizing the public/private distinctions,

modalities of legal suspicion, and dispositions toward national security

that I have described in this book, and by which these ambiguities arise,

are already deeply entrenched within social life are very difficult to dis-

l o d g e — e v e n if Islamists win a large portion of the Egyptian parliament,

which they likely will.

There is one thing, though, that might happen if they win: existing

spaces and practices of asecularity might disappear. Thus, for example,

the fatwa practices of the Fatwa Council of A l - A z h a r might be brought

under greater state scrutiny and control. It could conceivably become sub-

ject to the same sets of concepts—public order, family, and connected

notions of public/private through which secular power is exercised. But

this might just as likely happen if liberal forces were to win the parliament,

who might also place religious institutions under greater scrutiny and con-

trol. What matters, then, is not whether Islamists or liberals succeed in

parliament, but whether state sovereignty succeeds in further asserting

itself into social life, the state retains or increases its monopoly on poli-

tics, and the conceptual-affective structures through which secular power

works will further dispose us to the paradigm of national security, which

has dominated the globe.

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Notes

Introduction

1. Its article 2 states, "Islam is the religion of the State, Arabic is its official lan-guage, and the principles of the Islamic Shari'a are the main source of law."

2. Kilian Bälz, "The Secular Reconstruction of Islamic Law: The Egyptian Su-preme Constitutional Court and the 'Battle over the Veil' in State-Run Schools," in Legal Pluralism in the Arab World, ed. B. Dupret and L. Al-Zwaini (Boston: Kluwer Law International, 1999).

3. This research was started in the summer of 1996 but was done mostly between 1999 and 2001, supplemented by shorter bouts up to 2009. Thanks to the Fulbright, the Wenner-Gren Foundation, and the Carnegie Scholars Program for providing the necessary funding to carry out this research and writing.

4. Timothy Noah, in a recent article titled "The United States of Inequality," cites official sources as saying that US income distribution is now more unequal than many countries in Latin America, including Venezuela, Nicaragua, and Guyana. See http://www.slate.com/id/2266025/entry/2266026, accessed December 14, 2010.

5. Tony Judt cites some of these statistics in the process of comparing Europe with the United States, which he argues are coming to represent two distinct vi-sions and ways of modern life—with the latter irreplicable and probably unsustain-able. See Tony Judt, "Europe vs. America," New York Review of Books 52, no. 2 (2005).

6. See, for example, Uday Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999), and Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton, NJ: Princeton University Press, 2005).

7. Talal Asad, " A Comment on Aijaz Ahmed's In Theory," Public Culture 6, no. 1 (1993): 36.

8. Anthony Giddens and Christopher Pierson, Conversations with Anthony Giddens: Making Sense of Modernity (Cambridge: Polity Press, 1998): 98.

23« n o t e s t o p a g e s 1 0 - 1 8

9. Noah Feldman, The Fall and Rise of the Islamic State (Princeton, NJ: Prince-

ton University Press, 2008). Kindle edition.

10. Dale F. Eickelman and James Piscatori, Muslim Politics (1996; Princeton,

NJ: Princeton University Press, 2004).

11. Ibid., 16-17.

12. Ibid., 44-45.

13. "Domination that rests upon . . . piety for what actually, allegedly, or pre-

sumably has always existed, will be called 'traditionalist authority.'" Max Weber,

From Max Weber: Essays in Sociology, ed. H. H. Gerth and W. C. Mills (New York:

Oxford University Press, 1976), 56. Note that Weber's definition anticipates the

idea of "invented" pasts, and thus, the notion of invented tradition does not consti-

tute a departure from his basic views.

14. See, for example, Ian Hacking, Representing and Intervening: Introductory

Topics in the Philosophy of Natural Science (Cambridge: Cambridge University

Press, 1983); Imre Lakatos, The Methodology of Scientific Research Programmes,

vol. 1, Philosophical Papers (Cambridge: Cambridge University Press, 1980);

Bruno Latour, Laboratory Life: The Construction of Scientific Facts (Princeton,

NJ: Princeton University Press, 1986).

15. For an incisive discussion of this point, see Saba Mahmood's Politics of Piety,

especially the introduction. Saba Mahmood, Politics of Piety: The Islamic Revival

and the Feminist Subject (Princeton, NJ: Princeton University Press, 2005).

16. Lawrence E. Cahoone, Cultural Revolutions: Reason versus Culture in Phi-

losophy, Politics, and Jihad (University Park: Pennsylvania State University Press,

2005), 214.

17. Reinhart Koselleck, Futures Past: On the Semantics of Historical Time

(Cambridge, M A : MIT Press, 1985), and Michel-Rolph Trouillot, Silencing the

Past: Power and the Production of History (Boston: Beacon Press, 1995).

18. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings,

1972-1977, ed. Colin Gordon (New York: Pantheon Books, 1980).

19. Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Ef-

fect: Studies in Governmentality; With Two Lectures and an Interview with Michel

Foucault (London: Harvester Wheatsheaf, 1991).

20. Alasdair Maclntyre, After Virtue (Notre Dame, IN: University of Notre

Dame Press, 1984), and Whose Justice? Which Rationality? (Notre Dame, IN: Uni-

versity of Notre Dame Press, 1988).

21. Charles Hirschkind, "Conceptual Challenges to Understanding Islamic

Movements: Questions in Tradition, History, and Modernity," unpublished manu-

script, on file with the author, p. 20.

22. Michel Foucault, "Is It Useless to Revolt?" in Religion and Culture: Michel

Foucault, ed. Jeremy Carrette (New York: Routledge, 1999), 132.

23. Roxanne L. Euben, "Comparative Political Theory: A n Islamist Fundamen-

talist Critique of Rationalism," Journal of Politics 59, no. 1 (1997): 28-55.

24. Among these works are: Talal Asad, Genealogies of Religion: Disciplines

n o t e s t o p a g e s i 9 - 2 4 239 and Reasons of Power in Christianity and Islam (Baltimore: Johns Hopkins Uni-

versity Press, 1993), especially his chapter 6, "The Limits of Religious Criticism in

the Middle East: Notes on Islamic Public Argument"; Roxanne L. Euben, Enemy

in the Mirror: Islamic Fundamentalism and the Limits of Rationalism: A Work of

Comparative Political Theory (Princeton, NJ: Princeton University Press, 1999);

Brinkley Messick, The Calligraphic State: Textual Domination and History in

a Muslim Society (Berkeley: University of California Press, 1993); and more re-

cently, Charles Hirschkind, The Ethical Soundscape: Cassette Sermons and Islamic

Counterpublics (New York: Columbia University Press, 2009); Mahmood, Politics

of Piety; and Amira Mittermaier, Dreams That Matter: Egyptian Landscapes of the

Imagination (Berkeley: University of California Press, 2010).

25. See, for example, Baber Johansen's otherwise excellent discussion of the

case in his article, "Apostasy as Objective and Depersonalized Fact: Two Recent

Egyptian Court Judgments," Social Research 70, no. 3 (2003).

26. Al-hisba bayn al-dawla al-madaniyya wa al-dawla al-diniyya, Markaz al-

Musa'ada al-Qanüniyya l'Huqüq al-Insän, January 1996.

27. Talal Asad, "Religion, Nation-State, Secularism," in Nation and Religion:

Perspectives on Europe and Asia, ed. Peter Van der Veer and Hartmut Lehmann

(Princeton, NJ: Princeton University Press, 1999); Rajeeve Bhargava, Secular-

ism and Its Critics (New York: Oxford University Press, 1998); Partha Chatterjee,

"Secularism and Toleration," Economic and Political Weekly, July 9, 1994; Wil-

liam Connolly, "Pluralism, Multi-Culturalism, and the Nation-State: Rethinking

the Connections," Journal of Political Ideologies 1, no. 1 (1996), and Why I Am Not

a Secularist (Minneapolis: University of Minnesota Press, 1999).

28.1 discuss these issues in detail in chapter 6.

29. Early works include Talal Asad, Formations of the Secular: Christianity, Is-

lam, Modernity (Stanford, C A : Stanford University Press, 2003); Rajeev Bhargava,

Secularism and Its Critics (New York: Oxford University Press, 1998); and Con-

nolly, Why I Am Not a Secularist. Since then, an enormous number of anthologies

and singular works have appeared, for example, Elizabeth Shakman Hurd, The

Politics of Secularism in International Relations (Princeton, NJ: Princeton Univer-

sity Press, 2007); Charles Taylor, A Secular Age (Cambridge, MA: Belknap Press

of Harvard University Press, 2007); Linell Cady and Elizabeth Shakman Hurd,

eds., Comparative Secularisms in a Global Age (New York: Palgrave Macmillan,

2010); Janet R. Jakobsen and Ann Pelligrini, eds., Secularisms (Durham, NC:

Duke University Press, 2008); Michael Warner, Jonathan VanAntwerpen, and

Craig Calhoun, eds., Varieties of Secularism in a Secular Age (Cambridge, M A :

Harvard University Press, 2010); Craig Calhoun, Mark Juergensmeyer, and Jona-

than VanAntwerpen, Rethinking Secularism (New York: Oxford University Press,

2011).

30. It should be remembered that it was the apparent rise in Islamic religiosity

that led many to question the secularization narrative in the first place, and which,

in turn, led to secularity as an object of analysis.

240 n o t e s t o p a g e s 98-ioi

31. See Talal Asad, "Trying to Understand French Secularism," in Political The-

ologies: Public Religions in a Post-Secular World, ed. Hent de Vries and Lawrence E.

Sullivan (New York: Fordham University Press, 2006).

32. See ibid.

33. For some of the ways that rights and privileges were distributed in medieval

Europe, and how these changed with the rise of the modern state, see Keechang

Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge:

Cambridge University Press 2005).

34. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlighten-

ment (Durham, NC: Duke University Press, 2004), 3-6.

35. This approach also highlights how liberalism and secularism are historically

intertwined, in that it is presumed that the exercise of liberal rights and freedoms

depends crucially upon how the line between religion and politics is drawn.

36. A n excellent discussion of the modern history of sovereignty doctrine and

practice, see Anthony Anghie, Imperialism, Sovereignty, and the Making of Inter-

national Law (Cambridge: Cambridge University Press, 2007).

37. Of course, the state may cede this capacity, in whole or in part, to a private

entity for a particular social domain. But the fact that it is the state that cedes it

already demonstrates its in-principle right and responsibility to regulate that do-

main. Moreover, the state always has the right to revoke what it has ceded if it is

deemed necessary to protect public order.

38. Usually in the form of heated debate. For example, there is critical legal

theorist Pierre Schlag's sharp critiques of legal normativity, such as "Clerks in the

Maze," Michigan Law Review 91 (August 1993): 2053-74; a n d the equally sharp

defense of it by Francis J. Mootz III, "The Paranoid Style in Contemporary Legal

Scholarship," Houston Law Review 31 (Fall 1994): 873-88.

39. This issue has been touched upon by Sally Falk Moore, Law as Process:

An Anthropological Approach (London and Boston: Routledge and Kegan Paul,

1978). See especially her perceptive first chapter: "Uncertainties in Situations, In-

determinacies in Culture," 32-53. It has also been touched upon more recently in

Veena Das and Debbie Poole, eds., Anthropology in the Margins of the State (Santa

Fe, NM: S A R Press, 2004), particularly the articles by Debbie Poole, "Between

Threat and Guarantee: Justice and Community in the Margins of the Peruvian

State," and Veena Das, "The Signature of the State: The Paradox of Illegibility,"

35-65 and 225-52 respectively.

40. For example, people began to read more carefully the works of Giorgio

Agamben, especially his Homo Sacer (Stanford, C A : Stanford University Press,

1998) and Remnants of Auschwitz: The Witness and the Archive (New York: Zone

Books, 1999). Also, the works by Robert Cover—for example, his "Violence and

the Word," in Narrative, Violence, and the Law: The Essays of Robert Cover, ed.

Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michi-

gan Press, 1992), began to take on renewed salience.

241 n o t e s t o p a g e s 98-ioi

41. Jules Lobel, "Emergency Power and the Decline of Liberalism," Yale Law

Journal 98, no. 7 (1989): 1385-433; Michal R. Belknap, "The New Deal and the

Emergency Powers Doctrine," Texas Law Review 62 (August 1983): 67-109; Joel

B. Harris and Jeffery P. Bialos, "The Strange New World of United States Export

Controls under the International Emergency Economic Powers Act," Vanderbilt

Journal of Transnational Law 18 (Winter 1985): 71-108; William E. Scheuerman,

"Globalization and Exceptional Powers: The Erosion of Liberal Democracy," Rad-

ical Philosophy 93 (January/February 1999). See also Giorgio Agamben's short

history of the development of exceptional powers in Europe and the United States

in his book State of Exception, trans. Kevin Attel (Chicago: University of Chicago

Press, 2005), 1-31.

42. John Milbank has addressed aspects of these conversations in some of his

writings. See John Milbank, "Sovereignty, Empire, Capital, Terror," in Dissent

from the Homeland: Essays after September 11, ed. Stanley Hauerwas, and Frank

Lentricchia (Durham, NC: Duke University Press, 2003), and "The Gift of Rul-

ing: Secularization and Political Authority," New Blackfriars 85, no. 996 (2004):

212-38.

Chapter One

1. Alan Watson, The Making of the Civil Law (Cambridge, MA: Harvard Uni-

versity Press, 1981).

2. J. H. Merryman, The Civil Law Tradition: An Introduction to the Legal Sys-

tems of Europe and America (Stanford, C A : Stanford University Press, 1985), 2.

See also more generally, H. Patrick Glenn, Legal Traditions of the World: A Sus-

tainable Diversity of Law (New York; Oxford: Oxford University Press, 2010).

3. Talal Asad, "On the Idea of an Anthropology of Islam," in Occasional Pa-

pers, Center for Contemporary Arab Studies, Georgetown University, 1986.

4. Ibid., 14.

5. Ibid., 7.

6. See, for example, Dale Eickelman, and James Piscatori, Muslim Politics

(Princeton, NJ: Princeton University Press, 1996).

7. My point is not that symbols cannot be recognized outside of an argument.

It is simply that the ways they are effective depends on how they are inserted into

arguments.

8. The Court of Cassation (Mahkamat al-Naqd) is Egypt's highest civil and

criminal appellate court. A separate high court exists for administrative law: the

Council of State (Maglis al-Dawla). Both of these, in turn, are separate from the

Supreme Constitutional Court (al-Mahkama al-Dusturiyya al-'Ulya). For an excel-

lent overview of the Egyptian court system with a focus on the Supreme Consti-

tutional Court, see Tamir Moustafa, The Struggle for Constitutional Power: Law,

242 n o t e s t o p a g e s 98-ioi

Politics, and Economic Development in Egypt (Cambridge: Cambridge University

Press, 2007).

9. Under Egyptian law and Shari'a a non-Muslim man cannot be married to a

Muslim woman. Moreover, according to some schools of the Shari'a an apostate

from Islam has no legal status.

10. See, for example, Omar 'Abd al-Rahmän, ed., Mithäq al-'Amal al-Islami

(Cairo: Maktabat Ibn Katheer, 1989), 100.

11. See Kilian Bälz, "Submitting Faith to Judicial Scrutiny through the Family

Trial: The 'Abu Zayd Case. '" Paper presented at the Middle East Studies Associa-

tion of North America annual meeting, November 21-24, 1996- I will discuss the

position of the public prosecutor in greater detail in chapter 4.

12. The legal system of Egypt followed the Hanafi school of Islam, as the Ot-

toman Empire was officially Hanafi. However, the majority of the population is

Shafi'i in the north, and Maliki in the south.

13. See Al-hisba bayn al-dawla al-madaniyya wa al-dawla al-dlniyya, Markaz

al-Musa'ada Al-Qanüniyya l'Huqüq al-Insän, January 1996.

14. The rights of God will be further explained in another section of the

chapter.

15. The word for "legal attribute" in Arabic is sifa. It means that one has the

right to sue due to his or her legal status in the situation at hand.

16. Article 3 of the Egyptian Code of Procedure for Civil and Commercial

Law.

17. Giza Court of First Instance, case no. 591,1993.

18. Cairo Court of Appeals, case no. 287,1995.

19. Ibid.

20. Ibid.

21. A mufti is learned religious scholar with the authority to provide fatwas,

which are responses to questions about proper Islamic ethical conduct. I will dis-

cuss muftis and fatwas in great detail in the upcoming chapters.

22. Cairo Court of Appeals, case no. 287,1995.

23. Court of Cassation, case nos. 475,478,481. August 1996.

24. Ibid.

25. The concept of belief presented by the court judgments is fascinating. How-

ever, an extended consideration of belief is beyond the scope of this chapter at this

time. For now I will focus mainly on the categories of public and private in which

belief is framed.

26. Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of

Law as Governance (London: Pluto Press, 1994).

27. Talal Asad, "Conscripts of Civilization," in Dialectical Anthropology: Es-

says in Honor of Stanley Diamond, Volume 1 of Civilization in Crisis, ed. Christine

Ward Gailey (Gainesville: University Press of Florida, 1992), 335.

28. These transformations have been detailed by Jasper Yeates Brinton, The

243 n o t e s t o p a g e s 98-ioi

Mixed Courts of Egypt (1930; rev. ed., New Haven, CT: Yale University Press,

1968); Byron Cannon, Politics of Law and the Courts in Nineteenth-Century Egypt

(Salt Lake City: University of Utah Press, 1988); Enid Hill, Mahkama! Studies in

the Egyptian Legal System: Courts and Crimes, Law and Society (London: Ithaca

Press, 1979); and Farhat Ziadeh, Lawyers, the Rule of Law and Liberalism in Mod-

ern Egypt (Stanford, C A : Hoover Institution on War, Revolution, and Peace, Stan-

ford University, 1968). See also the Encyclopedia of Islam, mahkama.

29. Tazkiyya, interestingly enough, is also a term for the practice of purification

of the self: tazkiyyat al-nafs.

30. For a discussion of the role of 'adäla in Islamic law, see Farhat Ziadeh,

"Integrity (Adalah) in Classical Islamic Law," in Islamic Law and Jurisprudence:

Studies in Honor of Farhat J. Ziadeh, ed. Nicholas Heer (Seattle: University of

Washington Press, 1990), 73-93.

31. There were other such terms, equally as important. Adab was one of them.

Ira Lapidus has discussed this. He writes, "Adab was used throughout the classi-

cal era of Islam to imply learning and knowledge for the sake of right living. [It

meant] in its most general sense: correct knowledge and behavior in the total pro-

cess by which a person is educated, guided, and formed into a good Muslim. In this

larger . . . sense, adab is part of a system of Muslim ideas, part of interrelated set

of concepts that constitutes the basic vocabulary of Islamic belief and makes up a

Muslim anthropology of man." Ira Lapidus, "Knowledge, Virtue, and Action: The

Classical Muslim Conception of Adab and the Nature of Religious Fulfillment in

Islam," in Moral Conduct and Authority: The Place of Adab in South Asian Islam,

ed. Barbara Metcalf (Berkeley: University of California Press, 1984). 'Adäla was

among those interrelated concepts.

32. Another example of a technique of moral inquiry in the Shari'a is nasiha, a

disciplined practice of advice-giving. It has been discussed in some detail by Talal

Asad, "The Limits of Religious Criticism in the Middle East: Notes on Islamic

Public Argument," in Genealogies of Religion: Disciplines and Reasons of Power in

Christianity and Islam (Baltimore: Johns Hopkins University Press, 1993).

33. There is one famous story by Al-Shafi'i, who founded a major school of

Islamic thought. He wrote about a scholar who had a phenomenal memory. The

scholar noticed that he was having trouble remembering certain parts of the

Qur'an and Hadith. Upon asking a wiser sage, he was informed that such problems

arise not from failings in memory, but from moral failings. Upon hearing this, the

scholar nearly fainted with the realization. The story highlights the importance of

moral virtue in the authoritative transmission and reading of texts. More than this,

memory, which is important for the internalization of the Qur'an and the Hadith,

was a morally invested concept.

A s such, 'adäla formed a fundamental basis for the authoritative transmission

and interpretation of central Islamic texts like the Qur'an and the Hadith. Islamic

textual interpretations often required for their authority long and meticulous

244 n o t e s t o p a g e s 98-ioi

chains of transmission that went right back to the originator of the text or the

interpretation in question. This was because an author's intention was considered

to be inseparable from its moral nature, and thus the basis of the authority of cer-

tain texts, such as Hadith, for example, lay in the practice of carefully inquiring

into the 'adäla of each and every person in the transmission chain. It was the resil-

ience of 'adäla through this examination that, in large part, secured the authority

of the Hadith. In fact, Hadith and their various readings were classed within one of

a number of categories (from strong to weak) according to the moral resiliency of

the transmission chain. Hadith studies contributed to the development of an entire

biographical science ('ilm al-rujjäl—the science of men) within Islam that was

premised on such moral enquiry. There is rarely any discussion of specific Islamic

posts or duties without reference to concepts like 'adäla.

34. Asad, "Conscripts of Western Civilization," 347.

35. Thus, for example, Merryman (The Civil Law Tradition) writes: "In private

law [subjective right] is the foundation of a legal system in which private, individual

rights, i.e., property, contract, personal and family rights, exist." He then quotes a

civil law textbook: "The legal order recognizes the interests of the individual and

seeks to effect the realization of his intention. Therefore, subjective right is defined

as . . . the power to act for the satisfaction of one's own interests, protected by the

legal order" (73). He later notes that "the civil codes were thought of as serving

something like a constitutional function. Private law was that area of the law in

which the sole function of government was the recognition and enforcement of

private rights" (92).

36. Merryman, The Civil Law Tradition, 90.

37. Furthermore, these new organizations and institutions presupposed for their

operation a set of virtues, such as professionalism and expertise, that were differ-

ent from the moral ones pursued by the Shari'a. Brinton (The Mixed Courts of

Egypt) discusses these developments at length with respect to the Mixed Courts of

Egypt. He writes: "The really vital requirements [for officials of the Mixed Courts]

were the possession of the same professional qualities as would be expected of the

judges named to an important trial or appellate court, as the case might be of any

modern country. The proper candidate was the well-trained lawyer, the man with a

disciplined legal mind, with experience in the rapid handling of practical legal prob-

lems" (47). A s for expertise, he notes: "it may be of interest to refer to an institution

which plays a very considerable role in the French system of proofs, and which was

adopted in the Mixed Courts. This consists in the existence of permanent lists of

experts whose services were invoked whenever. . . the court required In general

the expert was given a free reign. He had essentially a roving commission" (113).

In Egyptian courts today, expert witnesses do not need to testify, only to file a

report. These changes had the overall result of narrowing the range and effective-

ness of the Shari'a's practices of moral inquiry. This is especially so as the virtues

those practices sought to secure declined in importance with the rise and spread

245 n o t e s t o p a g e s 98-ioi

of new institutions and organizations that required and upheld new kinds of vir-

tues. These new virtues, in turn, were part and parcel of the development of new

kinds of knowledge that were appropriate to operation of new, pervasive, orga-

nizations. These new kinds of knowledge had different bases than the systematic

knowledge of Islamic legal and moral argumentation and practice, which had bases

like 'adäla.

We might find one example in the fact that civil law tradition positioned judges

not as necessarily virtuous and experienced interpreters, but rather as officials who

formally applied statutes, with little or no interpretation. Such formal application

was emphasized in the interests of legal certainty, an important ideal in civil law

tradition (Merryman, The Civil Law Tradition, 48-49). The demand for certainty

by an emerging European international legal order was one reason why Islamic

societies aimed to revise the Shari'a in a way that would make it more "known,"

that is, accessible to those lacking the disciplined Islamic moral/intellectual capaci-

ties and sensibilities requisite to the Shari'a's proper interpretation and applica-

tion. Brinkley Messick, The Calligraphic State: Textual Domination and History in

a Muslim Society (Berkeley: University of California Press, 1993), 55,56.

38. The concept of the waqf is not a simple one. It is usually translated as "re-

ligious endowment," but it also means more than this. Thus, Talal Asad writes, "a

waqf... might have a 'religious or devotional' purpose (if it was a mosque, say), but

more often than not it had no such purpose (as in the case of agricultural lands),

or, more commonly, several purposes, 'religious' and 'nonreligious' (hospitals and

schools, for example). Waqf (plural awqaf) was simply the sole form of inalienable

property in the Shari'a. Talal Asad, Formations of the Secular: Christianity, Islam,

Modernity (Stanford, C A : Stanford University Press, 2003), 207.

39. Brinton, The Mixed Courts of Egypt, 161; the latter part is from a footnote

to the passage.

40. This is not to say that documentary evidence was not used in the Shari'a

courts. It was, and there was a sophisticated culture of document writing for legal

purposes (See Jeanette Wakin, ed. The Function of Documents in Islamic Law

[Albany: State University of New York Press, 1972]; see also Messick, The Cal-

ligraphic State.) Oftentimes, those members of the judge's circle entrusted with

enacting tazkiyya also served as witnesses for the authentication of documents.

They were often called shuhUd 'udül or upright witnesses—that is to say, witnesses

who possessed 'adäla. However, documentary evidence was typically seen as sec-

ondary, and supplementary to oral evidence. Civil law conceptions of documentary

evidence reversed this relation, and established criteria for evidence to which the

virtue of 'adäla was no longer central.

41. Hill, Mahkama!, 15-16.

42. See, for example, Ahmed ibn Naqib Al-Misri, The Reliance of the Traveler:

A Classic Manual of Islamic Sacred Law, trans. Nuh Ha Mim Keller (Dubai, U A E :

Modern Printing Press, 1991), 595.

246 n o t e s t o p a g e s 98-ioi

43. In a later chapter, however, we will see how a dispositional element is rein-

troduced, but in a very different context.

44. Enid Hill, Al-Sanhuri and Islamic Law: The Place and Significance of Islamic

Law in the Life and Work ofAbd al-Razaq Ahmad al-Sanhuri, Egyptian Jurist and

Scholar: 1895-1971 (Cairo: American University in Cairo Press, 1987).

45. A more detailed discussion of these differences can be found in Hill, Al-

Sanhuri and Islamic Law. See also Clark Brenner Lombardi, State Law as Islamic

Law in Modern Egypt: The Incorporation of the Shari'a in Egyptian Constitutional

Law (Leiden: Brill, 2006).

46. Shihab al-Din Al-Hammawy, Adab al-Qadi, vol. 2 (Baghdad: Al-Irshad

Publishers, 1974), 99.

47. The term sadaqa refers to charity in general as well as to atonements speci-

fied by the Qur'an for various sins. Usually one is required to feed a number of

poor, or to free a slave if they have one. And if none of these are possible, then

usually fasting for a time of two months is specified.

48. Shihab al-Din Al-Hammawy, Adab al-Qadi, 100

49. Fadl Al-Hay, Al-Hisba (Cairo, Dar ul-I'tisaam, 1996), 10-11.

50. These rights also include the rights of worshipers over one another.

51. The subject of the rights of servants is typically understood to concern the

rights and obligations Muslims have to one another. What I focus on here, how-

ever, is the important reciprocal relation between the rights of God and the rights

of servants.

52. Fadl Al-Hay, Al-Hisba, 32-37.

53. '"Objective law is the rule to which the individual must make his conduct

conform; subjective right is the power of the individual that is derived from the

n o r m ' . . . Subjective right is considered to be the foundation of private law: 'The

legal order recognizes the interests of the individual and seeks to effect the realiza-

tion of his intention. Therefore the subjective right is defined as the . . . the power

to act for the satisfaction of one's own interests, protected by the legal order.'"

Merryman, The Civil Law Tradition, 70,73.

54. Fadl Al-Hay, Al-Hisba, 24.

55. Ibid., 18. The muhtasib was also an official post, usually appointed by the

local judge. The elaborations, distinctions, and limits discussed here apply to any-

one who enacts hisba, whether this be in an official capacity or not.

56. A b d al-Fatah Al-Saify, Al-Talabus b'il-Jarlma (Cairo: Dar al-Nahda al-

Arabiyya, 1991), 6.

57. Ibid., 7.

58. Ibid., 7-8.

59. Ibid., 9.

60. For an excellent discussion of the respective histories of American, German,

and French conceptions of privacy, see James Q. Whitman, "Two Western Con-

ceptions of Privacy: Dignity versus Liberty," Yale Law Journal 113, no. 6 (2004):

n o t e s t o p a g e s 6 4 - 7 2 247

1151-222. In this regard one might note that the court judgments argued that belief

and apostasy could be investigated if it was manifest in action. It would be worth

exploring how the legal notion of manifest action compares with the criteria for

"the manifest" in hisba as elaborated within the Shari'a.

61. Omar 'Abd al-Rahmän, Mlthäq al-'Amal al-Islami.

62. Albert O. Hirschman, The Passions and the Interests: Political Arguments

for Capitalism before Its Triumph (1977; Princeton, NJ: Princeton University Press,

mi)-63. Witnessing was also an important part of hisba in its classical Shari'a elabo-

rations. However, witnessing in contemporary civil law is very different than it was

under the Shari'a: 'adäla, and techniques like tazkiyya used to ascertain it, are no

longer integral to the concept and practice of witnessing, as they were under the

Shari'a.

64. Robert Nagel, "Egypt," Middle East International, February 16,1996.

65. Baber Johansen, "Apostasy as Objective and Depersonalized Fact: Two Re-

cent Egyptian Court Judgments," Social Research 70, no. 3 (2003): 707.

Chapter Two

1. Indeed, hisba had been used successfully in the courts before, albeit in a re-

stricted fashion, during the 1960s, in a case in which the husband had officially con-

verted from Islam. That is different from Abu Zayd, who professed to be a Muslim

even though the court declared him an apostate. Baber Johansen, "Apostasy as

Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments," So-

cial Research 70, no. 3 (2003): 687-710.

2. In particular, it was placed in the purview of the public prosecutor, or al-

niyäba al-'amma, a position whose broad powers and specific contradictions I will

discuss further in chapter 4.

3. It was public initially in the sense that it was a power of the people—of citi-

zens, and subsequently, after state legislation, of state officials who are ostensibly

charged with representing their interests.

4. See also Muhammad Sallm Al-'Awwa, Al-Haqfi al-T'ablr (The right to free

speech) (Cairo: Dar al-Shuruq, 1998); Kilian Bälz, "Submitting Faith to Judicial

Scrutiny through the Family Trial: The 'Abu Zayd Case, '" Die Welt des Islams 37,

no. 2 (1997): 135-55; Maurits Berger, "Apostasy and Public Policy in Contempo-

rary Egypt: A n Evaluation of Recent Cases from Egypt's Highest Courts," Human

Rights Quarterly 25 (2003): 720-40; Baudouin Dupret, "The Inner Self and Public

Order," in Muslim Traditions and Modern Techniques of Power, ed. Armando Sal-

vatore (Münster: LIT, 2001), 141-62; Johansen, "Apostasy as Objective and De-

personalized Fact."

5. Hussein Ali Agrama, "Law Courts and Fatwa Councils in Modern Egypt:

248 n o t e s t o p a g e s 98-ioi

A n Ethnography of Islamic Legal Practice" (PhD diss., Department of Anthro-

pology, Johns Hopkins University, 2005); Agrama, 'Asking the Right Questions:

Two Engagements with Islam and Modernity," Political Theory 34, no. 4 (2006):

647-56; Agrama, "Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or

a Religious State?" Comparative Studies in Society and History 52, no. 3 (2010):

495-523-6. One example is a relatively recent decision by a US court giving atheism

the constitutional protections accorded traditional religions. Derek H. Davis, "Is

Atheism a Religious? Recent Judicial Perspectives on the Constitutional Meaning

of 'Religion,'" Journal of Church and State 43, no. 4 (2005): 707-23.

7. This legal concept of public order should not be confused with more general-

ized notions of social order. That the public order has become identified with social

order more generally only shows how deeply this legal concept has insinuated itself

into social life, as a result of the state's expanding regulatory capacities. While no-

tions of social order are long-standing, various, and often highly diffuse, the legal

concept of public order that I discuss here is, by contrast, relatively recent histori-

cally and well defined within legal doctrine—although, as we will see, it displays a

labyrinthine structure that reminds one of an Escher print.

8. For histories of nineteenth/twentieth-century Egyptian legal transformation,

see Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the

Gulf (Cambridge: Cambridge University Press, 1997); Byron Cannon, Politics of

Law and the Courts in Nineteenth-Century Egypt (Salt lake City: University of Utah

Press, 1988).

9. Egyptian Code of Procedure for Civil and Commercial Law, article 101.

10. Article 871 states, "The Court will hear [personal status] requests in the

deliberation chamber with the presence of the Public Prosecutor if he is a party to

the case, and will issue its judgments publicly." Article 878 states, "The Appeals

Court will hear [personal status] cases in the deliberation chamber as quickly as

possible and will adhere to the procedural requirements stated in article 871." Re-

cent reforms have removed these requirements, but the majority of cases are still

heard in secret.

11. Adel Azer and Malak Zaalouk, "Tatliq" Divorce through Court Action. Un-

published manuscript, 1972,52.

12. M'aud A b d el-Tawwab, The Commentary on Law #t for the Year2000 (Ara-

bic) (Cairo: El-Entesar Press, 2000), 69-71.

13. Within Egyptian law and common parlance in Egypt, a minor is placed in the

category of orphan when the father is deceased, even if the mother is still living.

14. This distinction parallels an earlier nineteenth-century division between the

Shari'a courts, whose jurisdiction was restricted to all related issues of marriage,

divorce, and allotment of inheritance, and special courts that dealt with orphans

and their affairs.

15. Law No. 10 of the Year 2004: Promulgating the Law on the Establishment

of the Family Courts.

n o t e s t o p a g e s 8 2 - 8 5 249

16. Article 2 of Egypt's 1971 constitution made the principles of the Islamic Shari'a a principal source of law; in 1980 the article was amended to make it the principal source of law.

17. See Clark Lombardi, State Law as Islamic Law in Modern Egypt: The Incor-poration of the Shari'a into Egyptian Constitutional Law (Leiden: Brill, 2006).

18. See Agrama, "Law Courts and Fatwa Councils," 125-27. 19. For a thorough discussion of the Supreme Constitutional Court's jurispru-

dence around article 2 of the Egyptian constitution, see Clark B. Lombardi and Nathan J. Brown, "Do Constitutions Requiring Adherence to the Shari'a Threaten Human Rights? How Egypt's Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law," American University International Law Review 21, no. 3 (2006): 379-435. The authors point to a debate among scholars as to whether the Supreme Constitutional Court's theory of interpreting article 2 is simply a secular-izing strategy or represents a genuine effort to engage in Islamic interpretation. What is important for our purposes here, however, is the point on which both sides of the debate agree: whether a secularizing strategy or a genuine theory of Islamic interpretation, the judgments of the conform very strongly with the tenets of lib-eral legality.

20. For a discussion of these liberalizing reforms, see Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007).

21. For example: Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1996), 291-314; Jana B. Singer, "The Privatization of Family Law," Wisconsin Law Review (1992): 1510-13); Anna Marie Smith, "Neoliberalism, Welfare Policy, and Feminist Theories of Social Justice," Feminist Theory 9, no. 2 (2008): 131-44.

22. In the ethnography that follows, I will use both "sheikh" and "mufti" interchangeably.

23. Another central fatwa-giving body in Cairo is the Dar al-Ifta, which is un-der the Ministry of Justice (Wizärat al-'Adl), and presided over by the Mufti of the Republic (Mufti al-Gumhuriyya). Although they are to have different official functions, the Dar al-Ifta with the responsibility to give official fatwas regarding legislation having to do with the Shari'a, and the Azhari Fatwa Council acting as a mouthpiece for official Azhari positions on questions of the Shari'a vis-ä-vis other centers of Islam such as Saudi Arabia, those functions very often overlap. In par-ticular, the Azhar council often takes up the functions of the Dar al-Ifta. In a recent example, the Mufti of the Republic remained silent on the controversial legislation of the personal status reforms that were under debate in 1999, supposedly because of his opposition to them. The legislature, however, was content to receive the sanction of the Sheikh al-Azhar for these reforms. Also, when it comes to regular questioners, the Dar al-Ifta and the Lagnat al-Fatwa function much in the same way, and both sheikhs and questioners see no difference between them. For an

250 n o t e s t o p a g e s 98-ioi

excellent discussion of Dar al-Ifta, see Jakob Skovgaard-Petersen, Defining Islam

for the Egyptian State: Muftis and Fatwas of the Dar al-Ifta (Leiden: Brill, 1997).

24.1 will give examples of how seriously people took these fatwas in the next

chapter.

25. The sheikhs' reluctance to write their fatwas and to use official Azhari let-

terhead may have something to do with the specific politics of the council at that

time. When Sheikh Sayyid Tantawi, who was Sheikh al-Azhar and head of the

Fatwa Council from 1998 to 2010, took his position, he enacted major changes in

the structure of the Fatwa Council. Before he took the office, the council was com-

posed of largely retired sheikhs who had loyalty to the comparatively conservative

previous Sheikh Al-Azhar, Jadd al-Haq, and who were critical of some of Tantawi's

controversial fatwas, issued during his time as Mufti of the Republic. Tantawi re-

lieved those sheikhs and began a rotation scheme, bringing the head sheikhs of the

Azhar branches of each of the governorates of Egypt to Cairo, four at a time, for

a one-week rotation. The reason for this, ostensibly, was to familiarize the sheikhs

of the different regions with the varieties of fatwas that could be given, especially

since the south of Egypt was primarily Maliki in orientation, while the north was

primarily Hanafi and Shafi'i. However, I am told that Tantawi did this to ensure

that no unified opposition to his fatwas could emerge out of the council. Tantawi's

intense dislike of being contradicted, I was told, also led to reluctance among many

Azhari sheikhs who do not sit on the council to dispense fatwas to questioners

in Al-Azhar. I saw elements of this reluctance myself, and it may have been one

source of the council sheikhs' reluctance to issue written fatwas.

26. Skovgaard-Peterson, Defining Islam for the Egyptian State.

27. For these transcripts I am indebted to Baudouin Dupret.

28. See Maurits Berger, "Is an Islamic Polygamous Marriage Allowed for a

Christian Egyptian? The Court of Cassation of Public Policy and the Status of

Non-Muslims," unpublished manuscript, 1999; Berger, "Public Policy and Islamic

Law: The Modern Dhimmi in Contemporary Egyptian Islamic Law," Islamic Law

and Society 8, no. 1 (2001): 88-136; Berger, "Apostasy and Public Policy in Con-

temporary Egypt: A n Evaluation of Recent Cases from Egypt's Highest Courts,"

Human Rights Quarterly 25 (2003): 720-40; Berger, "Regulating Tolerance: Pro-

tecting Egypt's Minorities," in Standing Trial: Law and the Person in the Modern

Middle East, ed. Baudouin Dupret (London: I. B. Taurus, 2004), 345-71; Berger,

"Secularizing Interreligious Law in Egypt," Islamic Law and Society 12, no. 3

(2005): 394-418-29. Berger, "Public Policy and Islamic Law," 104. Berger translates "public

order" into "public policy," its Anglo-American legal term; I maintain the term

"public order" because it translates more directly from the Arabic, "al-nizäm al-

'aam," and better reflects that concept as expressed in continental, international,

and Egyptian law.

30. Berger, "Regulating Tolerance," 357.

n o t e s t o p a g e s iO3-io 251

31. Ibid., 119. 32. Dietrich Rueschemeyer and Theda Skocpol, eds., States, Social Knowledge,

and the Origins of Modern Social Policies (Princeton, NJ: Princeton University Press, 1995).

33. For a discussion of the intertwined histories of private and public interna-tional law, see Alex Mills, "The Private History of International Law," Interna-tional and Comparative Law Quarterly 55, no. 1 (2007).

34. Thus: the Universal Declaration of Human Rights (article 29:2); European Convention for the Protection of Human Rights and Fundamental Freedoms (9:2); International Covenant on Civil and Political Rights (12:3; 14:1; 19:3b; 21; 22); In-ternational Covenant on Economic, Social, and Cultural Rights (8:ia; 8:1c).

35. That is, Giorgio Agamben, State of Exception, trans. Kevin Attel (Chicago: University of Chicago Press, 2005).

36. Maitre J. B. Bernier, "Droit Public and Ordre Public," in Transactions of the Grotius Society: Problems of War and Peace: Papers Read before the Society in the Year 1929, vol. 15 (1929), 83-91; M. Forde, "The 'Ordre Public' Exception and Adjudicative Jurisdiction Conventions," International and Comparative Law Quarterly 29 (1980): 259-73; Max Hibicht, "The Application of Soviet Laws and the Exception of the Public Order," American Journal of International Law 21, no. 2 (1927): 238-56; Gerhart Husserl, "Public Policy and Ordre Public," Virginia Law Review 25, no.i (1938): 37-67; Dennis Lloyd, Public Policy: A Comparative Study in English and French Law (London: University of London, Athlone Press, 1953); Mills, "The Private History of International Law."

37. Tad Stahnke, "Proselytism and the Freedom to Change Religion in Inter-national Human Rights Law," Brigham Young University Law Review 1999, no.i (1999): 295-96; Bernadette Meyler, "The Limits of Group Rights: Religious Insti-tutions and Religious Minorities in International Law," St. John's Journal of Legal Commentary 22, no. 2 (2007): 537-47.

38. Thus while "public policy," the term used in Anglo-American law, is rarely in-voked in US religion cases, many of its associated concepts are. See Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton, NJ: Princeton Univer-sity Press, 2005); and Stanley Fish, "The Religion Clause Divided against Itself," New York Times, March 18, 2007, http://opinionator.blogs.nytimes.com/2007/03/18/ the-religion-clause-divided-against-itself/, accessed on November 9, 2011.

39. See, for example, Bowen on public order thinking in France: John R. Bowen, Shari'a, State, and Social Norms in France and Indonesia (electronic resource) (Leiden: ISIM, 2001).

40. Saba Mahmood has highlighted the centrality of the notion of public or-der in international law cases concerning religious freedoms. See Saba Mahmood, "Religious Freedom and Secular Affect: An Incommensurable Divide?" in Is Cri-tique Secular? Blasphemy, Injury, and Free Speech, ed. Talal Asad et al. (Berkeley: University of California Press, 2009), 64-100.

252 n o t e s t o p a g e s 9 8 - i o i

41. See, for example, Rex J. Ahdar, ed., Law and Religion (Burlington, VT: Ashgate Publishing, 2000); Thomas C. Berg, The State and Religion in a Nutshell (St. Paul, MN: Westgroup, 1998); Joseph R. Duncan Jr., "Privilege, Invisibility, and Religion: A Critique of the Privilege That Christianity Has Enjoyed in the United States," Alaska Law Review 54 (Winter 2003): 617; Winnifred Fallers Sul-livan, "Judging Religion," Marquette Law Review 81 (Winter 1998): 441; Richard Webster, A Brief History of Blasphemy: Liberalism, Censorship, and "The Satanic Verses" (Southwold, UK: Orwell Press, 1990).

42. See Jeremy T. Gunn, "Religious Freedom and Laicite: A Comparison of the United States and France," Brigham Young University Law Review (2004): 419-506; Sebastian Poulter, "Muslim Headscarves in School: Contrasting Legal Approaches in England and France," Oxford Journal of Legal Studies 17, no. 1 (1997): 43-74; and Elissa Beller, "The Headscarf Affair: The Conseil d'Etat on the Role of Religion and Culture in French Society," Texas International Law Journal 39 (Summer 2004): 581-623.

43. Law for the Organization of the Shari'a Courts and Its Associated Proce-dures 27 May 1897, Book 4, Chapter 2, Article 61, in Compendium of High Decrees and Ordinances Issues for the Year 1897 (Bulaq, 1898).

44.1 have also discussed this point in some detail in Agrama, Law Courts and Fatwa Councils, 95-97.

45. These include: marriage, divorce, inheritance, alimony, child custody, visita-tion rights, and financial guardianship of orphans.

46. See Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, C A : Stanford University Press, 2003), 206-56, especially his discussion of Muhammed Abduh's 1899 report on Shari'a court reform, which argued that the courts, in looking into matters between spouses and close kin, deal with intimate issues not for others to hear. See also Hanan Kholoussy, "Talking about a Revo-lution: Gender and the Politics of Marriage in Early Twentieth-Century Egypt," Journal for the Arts, Sciences, and Technology I, no. 2 (2003): 25-34; Lisa Pollard, Nurturing the Nation: The Family Politics of Modernizing, Colonizing, and Liberat-ing Egypt (Berkeley: University of California Press, 2005).

47. Ursula Vogel, "Private Contract and Public Institution: The Peculiar In-stitution of Marriage," in Public and Private: Legal, Political, and Philosophical Perspectives, ed. Mario D'Entreves and Ursula Vogel (New York: Routledge 2000); also Bowen, Shari'a, State and Social Norms.

48. Vogel, "Private Contract and Public Institution"; Bowen, Shari'a, State and Social Norms.

49. For Anglo-American law, see parens-patriae doctrine. Also Sarah B. Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2001). See also an excel-lent article with respect to France by Judith Surkis, "Hymenal Politics: Marriage, Secularism, and French Sovereignty," Public Culture 22, no. 3 (2010): 531-56.

n o t e s t o p a g e s I O 3 - i o 2 5 3

50. Talal Asad, "Trying to Understand French Secularism," in Political Theolo-gies: Public Religions in A Post-Secular World, ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham University Press, 2006), 494-526.

51. Patrick Glenn, "When Heavens Meet: The Compelling of Religious Di-vorces," American Journal of Comparative Law 28, no. I (1980): 1-38.

52. Julian Rivers, "From Toleration to Pluralism: Religious Liberty and Reli-gious Establishment under the United Kingdom's Human Rights Act," in Ahdar, Law and Religion.

53. See, for example, Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, NJ: Princeton University Press, 2008).

54. See Istvän Bejczy,"Tolerantia: A Medieval Concept," Journal of the History of Ideas 58, no. 3 (1997): 365-84-

Chapter Three

1. Jay Martin, "Must Justice Be Blind," in Law and the Image: The Authority of Art and the Aesthetics of Law, ed. Costas Douzinas and Lynda Nead (Chicago: University of Chicago Press, 1999), 35.

2. These contradictory sentiments have been extensively discussed and debated in the legal literature with increasing intensity ever since Max Weber outlined his sociology of law; for a rendition of some of these debates and their history, see Wil-liam E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1997). For a discussion of the elusive nature of the concept of the rule of law, see Richard H. Fallon Jr., '"The Rule of Law' as a Concept in Constitutional Discourse," Columbia Law Review 97, no. 1 (1997): 1-56.

3. For example: Peter Goodrich, "Europe in America: Grammatology, Legal Studies, and the Politics of Transmission," Colombia Law Review 101, no. 8 (2001): 2033-84; Anne Wagner, "Introduction: The Use and (Ab)use of Language in Legal Discourse," International Journal for the Semiotics of Law 15, no. 4 (2002): 323-24; Veronique Voruz, "Sovereignty, Power, and Resistance," International Journal for the Semiotics of Law 15, no. 3 (2002): 231-52; Veena Das, "The Signature of the State: The Paradox of Illegibility," in Anthropology in the Margins of the State, ed. Veena Das and Deborah Poole (Santa Fe, NM: SAR Press, 2004).

4. Here it is worth noting that the legal indeterminacy thesis is relatively re-cent. James E. Herget, in a history of this thesis, writes, "There is a puzzle here in intellectual history. Legal Indeterminacy, so widely (but certainly not universally) accepted in one form or another today, itself now competes to become part of the accepted wisdom. Yet, strangely, it was grasped only a little over a century ago after some two millennia of speculation about law in the western tradition. And if it grew out of other jurisprudential ideas or was borrowed from some other field

2 5 4 n o t e s t o p a g e s 98-ioi

of thought as it so often happens, the sources of the idea of Legal Indeterminacy

remain obscure and ripe for historical investigation." Later in the article, he argues

that the first full-fledged articulation of legal indeterminacy was made with Ger-

man jurisprudence in the later nineteenth century, in relation not to substantive

law (as is common in current literature on this), but to civil procedure, at a time

when Germany was codifying its laws at a very fast pace. See James E. Herget,

"Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy,"

American Journal of Legal History 39, no. 1 (1995): 59-70. This demonstrates that

there are specific historical conditions under which potential indeterminacies arise

as a problem and a source of anxiety.

5. I have taken most of these facts from Jakob Skovgaard-Petersen, Defining

Islam for the Egyptian State: Muftis and the Fatwas of the Dar al-Ifta (Leiden: Brill,

1997), 103-5.

6. This should not be taken to mean that external signs of a person's mental state

do not count as evidence in all cases under the Shari'a.

7. What is interesting about this case is that the woman and her brothers could

have gone to the personal status court and raised a case titled ithbat al-talaq, or

"the certification of divorce," in order to obtain a judgment in her favor. Such an

action, however, could be beset by complications. For instance, although this might

be the third and thus final pronouncement of divorce on the part of the husband,

the woman might not have had the witnesses to ascertain the previous two pro-

nouncements. Thus even if she obtained judgment in her favor, this might count

only as a revocable divorce (talaq raja'ii). This would enable the husband to issue

a statement reconciling her to himself. Secondly, during a court case the husband

could bring witnesses of his own to counter the statements of the woman and her

brothers, thereby rendering uncertain a judgment in her favor. More, under a court

case a husband could appeal and use other procedural tactics to keep the case in a

state of constant delay. The point here, one that I will expand upon in these chap-

ters, is that the court is seen to be open to manipulation of all kinds and is in fact

manipulated all the time. With the fatwas, there is less of a concern over possible

manipulation. I am told that it is often that wives obtain a fatwa about whether

or not a divorce has in fact occurred through a pronouncement before resort to

the courts. This is even though fatwas are in no way binding on the courts—or

anybody, for that matter. In these cases, fatwas seem to involve more than just

ascertaining the fact of a divorce. What they do involve and why they seem to have

the authority they have is a central theme of discussion in these chapters.

8. These short jail sentences, of no longer than one month, were provided for in

the superseded law in law 78, article 347, of the year 1931.

9. That fund has now been established, financed through the collection by the

Egyptian government of 50 Egyptian pounds for the registration of marriage con-

tracts and the initiation of divorce proceedings. See Jamila Ahmed Chowdhury,

"Family Court A.D.R. in Egypt and Some Exemplary Provisions for Other Muslim

n o t e s t o p a g e s iO3-io 2 5 5

Countries," Studies of Islam and the Middle East 3, no. 2 (2006), at http://www

.majalla.org, accessed June 21, 2007.

10. Article 76 (bis) of the Law 1 of the year 2000 was added through Law 91 of

the year 2000.

11. James Q. Whitman, Harsh Justice: Criminal Punishment and the Widen-

ing Divide between America and Europe (Oxford: Oxford University Press, 2003),

16-17.

12. This tendency can be seen, for example, in Charles Taylor's work. It is evi-

dent in the opening pages of A Secular Age (Cambridge, M A : Belknap Press of

Harvard University Press, 2007), but it becomes even more pronounced in his more

recent work. Thus, for example, the title of a more recent essay on secularism is:

"Western Secularity," in Rethinking Secularism, ed. Craig Calhoun et al. (Oxford:

Oxford University Press, 2011). One person who has critically questioned this ten-

dency is Saba Mahmood in her essay titled "Can Secularism Be Other-Wise?," in

Varieties of Secularism in A Secular Age, ed. Michael Warner et al. (Cambridge,

M A : Harvard University Press, 2010), where she asks whether the varieties of secu-

larism must also be crucially understood as part of a single historical, transnational

space of nonetheless structured, variegated, power.

13. See, for example, David H. O'Brien, ed., Judges on Judging: Views from

the Bench (Chatham, NJ: Chatham House 1997); William Rose, "Legal Indeter-

minacy and/as Professional Expertise," International Journal for the Semiotics of

Law 16, no. 4 (2003): 425-34; Pierre Schlag, "Law and the Postmodern Mind: Anti-

Intellectualism," Cardozo Law Review 16 (1995): 1111-20.

14. James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of

the Criminal Trial (New Haven, CT: Yale University Press, 2007).

15. "Moral comfort" is Whitman's term.

16. Andrea Frisch, The Invention of the Eyewitness: Witnessing and Testimony

in Early Modern France (Chapel Hill: University of North Carolina Press, 2004).

Hence, she distinguishes between the "ethical witness" of medieval times as op-

posed to the modern "epistemic witness." Testimony during the medieval period

could therefore be seen as based in the same principle as compurgation.

17. See, as an example, Marianne Constable's discussion of medieval mixed ju-

ries and how they changed. Constable, The Law of the Other: The Mixed Jury and

Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University

of Chicago Press, 1994).

18. The wide-ranging legislative reforms of the Shari'a courts in 1897, which

limited their jurisdiction to those matters now categorized as personal status, also

incorporated a provision in its section 93 that authorized the use of coercion in

these domains. A copy of the text of the law can be found in Majmu'at al-awamir

al-'ulya wa al-dikritat al-sadirafi sanat 1897 (Bulaq, 1898), 155-75.

19. The mufti's comment is especially interesting because inheritance provisions

for orphaned grandchildren were made by Egyptian law only in 1946, Law no. 71,

256 n o t e s t o p a g e s 98-ioi

whose articles 76-79 mandate obligatory bequests for them. (I thank Arskal Salem

for alerting me to this.) The mufti's comment thus indicates the possibility that the

Shari'a courts were already judging in favor of orphaned grandchildren, even if

there was no law for requiring this—a possibility that remains to be investigated.

20. A succinct formulation of this problem can be found in Norberto Bobbio,

"Law and Force," The Monist 49, no. 4 (1965): 321-41.

21. See Hannah Arendt's fascinating discussion of authority in "What Is Au-

thority?" In Between Past and Future: Eight Exercises in Political Thought (New

York: Penguin, 2006), 91-142.

22. One famous statement of this problem is by Robert Cover, in Nature, Vio-

lence, and the Law: The Essays of Robert Cover (Ann Arbor: University of Michi-

gan Press, 1992).

23. Arendt, "What Is Authority?"

24. These points have been discussed in part by Hannah Arendt in "What Is

Freedom?" In Between Past and Future, 143-72.

25. Such a view finds classic expression in the work of John Locke, who even-

tually came to the conclusion that belief (and hence belief in someone's or some-

thing's legitimacy) could not be coerced by the state. For a contemporary defense

of Locke's view, see Susan Mendus, Toleration and the Limits of Liberalism (Atlan-

tic Heights, NJ: Humanities Press International, 1989), who distinguishes between

sincere and authentic belief. For a critique of Mendus's distinction, see Talal Asad,

"Comments on Conversion," in Conversion to Modernities: The Globalization of

Christianity, ed. Peter van der Veer (New York: Routledge, 1995), 263-73.

26. This difficulty expresses itself most poignantly in cases that pit religious free-

doms against the rights to compulsory education. See, for example, Sylvie Lan-

glaude, Rights of the Child to Religious Freedom in International Law (Leiden:

Martinus Nijhoff, 2007).

27. Lorna Hutson, in her complex study of English Renaissance drama, points

to a relationship between the emerging sensibility of suspicion expressed by the

law and changing conceptions of the self. She shows how the forensic rhetoric

and evidential uncertainty that became characteristic of an increasingly litigious

sixteenth-century English society were incorporated initially into Elizabethan the-

ater to imbue a novel sense of depth of character to its dramatis personae. Lorna

Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renais-

sance Drama (Oxford: Oxford University Press, 2007). These dramatis personae,

as we know from Stephen Greenblatt's now classic work, were among the materials

available for new modes of self-fashioning, and particularly those improvisatory

and mobile features that have become so important to subsequent notions of indi-

vidual autonomy. Stephen Greenblatt, Renaissance Self-Fashioning: From More to

Shakespeare (Chicago: University of Chicago Press, 2005).

28. Richard Sennett, Authority (New York: W. W. Norton, 1993).

29. Thus the formation of the Fatwa Council of Al-Azhar has been set squarely

within the salafayya tendency of Islam, a tendency often characterized as a re-

n o t e s t o p a g e s iO3-io 2 5 7

formist response to Egyptian modernization. The Fatwa Council institutionalized

certain practices advocated by the salafayya movement, specifically the practice of

talfiq—the combining of doctrinal elements from any or all of the main schools of

Islam to dispense fatwas, rather than a consistent adherence to a single school. See

Skovgaard-Petersen, Defining Islam for the Egyptian State, 154.

Chapter Four

1. See, for example, John Farrell, Freud's Paranoid Quest: Psychoanalysis and Modern Suspicion (New York: New York University Press, 1996); John Farrell,

Paranoia and Modernity: From Cervantes to Rousseau (Ithaca, NY: Cornell Univer-

sity Press, 2006); David Trotter, Paranoid Modernism: Literary Experiment, Psy-choses, and the Professionalization of English Society (Oxford: Oxford University

Press, 2001). Famously, Paul Ricoeur has written about how the different interpre-

tive methods of Marx, Nietzsche, and Freud were unified by a fundamental attitude

of suspicion upon which they rested. He cast the three as masters of interpretive

suspicion. See Paul Ricoeur, The Conflict of Interpretations: Essays in Hermeneu-tics (Evanston, IL: Northwestern University Press, 2007). I am not aware, however,

of any attempt by him to think through legal interpretation in these terms. One

person whose work has indexed the rise of a ubiquitous suspicion within social life

through the law is, of course, Franz Kafka, in his famous novel The Trial. Much

has been written about Kafka's work on law. (See, for example, Douglas Litowitz,

"Max Weber and Franz K a f k a — A Shared Vision of Modern Law," Law, Culture, and the Humanities 7, no. 1 [2001]: 48-65.) However, the idea that his work tracks

the emergence of a new legal sensibility is not one, to my knowledge, that has been

pursued.

2. Talal Asad, "Where Are the Margins of the State?," in Anthropology in the Margins of the State, ed. Veena Das and Deborah Poole (Santa Fe, NM: S A R Press,

2004), 282-83 (emphasis in text).

3. Ibid.

4. I have mentioned Khalxl previously, in chapter 2; he was the one who first

highlighted the issue of secrecy in the personal status courts.

5. Enid Hill, Mahkama! Studies in the Egyptian Legal System: Courts and Crimes, Law and Society (London: Ithaca Press, 1979), 27-28 (emphasis in text).

6. See Abdallah Khalil, "The General Prosecutor between the Judicial and

the Executive Authorities," in Judges and Political Reform in Egypt, ed. Nathalie

Bernard-Maugiron (Cairo: American University in Cairo Press, 2008), 64-65.

7. Brinkley Messick, in his discussion of the newly instituted niyäba in Yemen in

the late 1970s, notes that "niyaba officials in western attire pose blunt questions in

a dispassionate manner uncharacteristic of Yemenis." Brinkley Messick, "Prosecu-

tion in Yemen: The Introduction of the Niyaba," International Journal of Middle East Studies 15, no. 4 (1983): 514. This is one indication of how the adoption of

2 5 8 n o t e s t o p a g e s 98-ioi

Western ideals and institutions may come along with the adoption of particular

sensibilities as well.

8. A discussion of this dilemma in the US context can be found in Richard

Zorza, "The Disconnect between the Requirements of Judicial Neutrality and

Those of the Appearance of Neutrality When Parties Appear Pro Se: Causes, So-

lutions, and Implications," Georgetown Journal of Legal Ethics 17, no. 3 (2004):

423-54. He writes, "In other words, justice and the appearance of justice appear to

pull in different directions, at least when it is not the case that both sides have coun-

sel. Moreover, deep institutional and ideological pressures... lead us to choose the

appearance of justice over justice itself. There is a particular irony in this discon-

nect, given that the system's concern for the appearance of justice is largely driven

by its ultimate desire for justice itself, and its view of the appearance of justice as a

proxy for justice" (434-35).

9. For a fascinating discussion of some of the historical shifts in our conceptions

of how appearance and reality are connected and how they helped give rise to

anthropological conceptions of ritual, see Talal Asad, "Toward a Genealogy of the

Concept of Ritual," in Genealogies of Religion: Discipline and Reasons of Power in

Christianity and Islam (Baltimore: Johns Hopkins University Press, 1993), 55-82.

10. In chapter 1,1 referenced a comment by Judge Brinton of the Mixed Courts

of Egypt, about how procedural reform was often a ruse used to achieve substan-

tive changes in the judicial application of the Shari'a. The sense that procedural

reform is a ruse for enacting substantive change continues to the present day.

11. Marianne Constable also notes the creation of a gap between the appear-

ance and the enactment of justice in common law that arose from the transforma-

tion of the medieval mixed jury system to the modern notion and practice of the

jury. She writes, "while the early mixed jury . . . composed half of 'others' or aliens,

and half of natives, represented two communities and their law, the 'substantive'

approach to the composition of the modern jury views the racially mixed jury as a

'fair' variation to what it takes to be a sample of the population . . . the substantive

approach to the jury mix today exhibits an explicit concern with legitimacy—with

public belief in the appearance of justice . . . The tension between characterizing

the verdict as potentially accurate 'fact' and presenting it as a consistent or coherent

reflection of public 'values' reveals a dilemma whose manifestations pervade much

of modern thought. . . . Like the general thrust of argument about the jury—it

makes mistakes, hence it is inefficient, versus, it represents the public, hence is

legitimate—the two sides of these issues are flip sides of the same coin." Marianne

Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of

Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994), 46,

48 (emphasis mine).

12. See Nadia Sonneveld, "Khul' Divorce in Egypt: How Family Courts Are

Providing a 'Dialogue' between Husband and Wife," Anthropology of the Middle

East 5, no. 2 (2010): 100-120.

n o t e s t o p a g e s iO3-io 2 5 9

13. See Ron Shaham, Family and the Courts in Modern Egypt: A Study Based

on Decisions by the Shari'a Courts, 1900-1955 (Leiden: Brill, 1997), 57-67. He re-

counts in great detail the legislations put in place and samples a range of Shari'a

court judicial opinions and judgments to gauge the responses to these laws.

14. Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the

Gulf (Cambridge: Cambridge University Press, 1997), 191-94.

15. "The most obvious legal tool available to at least one party to a dispute is

delay. If a document is missing or a party fails to appear in court, judges gener-

ally delay the case. While they will not delay indefinitely, this does usually make

it possible to postpone examination of a case for up to a year (especially because

civil courts are closed for all but emergency matters for three months during the

summer). In cases in which more than two parties are involved, delays can be much

more involved. This is especially true of waqf (mortmain) cases where all benefi-

ciaries must be present or sign over power of attorney to a lawyer who will be pres-

ent. . . . One case . . . went through the courts for twenty years when the judge who

was handling it (on appeal) died, leading to further delays Yet, for many others,

what the Egyptian courts and often the law itself offer is not delay and despair

but an ally in a difficult personal mater. Even the universally acknowledged delays

and inefficiencies associated with the courts in Egypt can often be useful for those

seeking to delay or willing to negotiate a matter while the courts wait for a missing

document." Brown, The Rule of Law in the Arab World, 205 and 218.

16. A set of essays that detail the interweaving of law, state policy, and social

knowledge in the history of different modern states can be found in Dietrich Rue-

schemeyer and Theda Skocpol, States, Social Knowledge, and the Origins of Mod-

ern Social Policies (Princeton, NJ: Princeton University Press, 1996). A critical

discussion of the proliferation of law into social life in the United States can be

found in Paul F. Campos, Jurismania: The Madness of American Law (Oxford:

Oxford University Press, 1999). For a relatively recent discussion of Foucault's con-

ception of law within the framework of governmentality, see Ben Golder and Peter

Fitzpatrick, Foucault's Law (New York: Routledge, 2009).

17. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford,

C A : Stanford University Press, 1998).

18. Ibid., 21.

19. Hiyal can also be translated as "stratagems."

20. The makhärij literature is discussed in great detail by Satoe Horii, "Re-

consideration of Legal Devices (Hiyal) in Islamic Jurisprudence: The Hanafis and

Their Exits (Makhärij)," Islamic Law and Society 9, no. 3 (2002):. 312-57. In the

end, argues Satoe, even those schools that tried to close such loopholes (sad al-

dhira'a) ended up with a literature that looked very much like the hiyal literature

of the schools they criticized. This may reflect what some scholars have seen as a

tendency toward leniency and the making of concessions (rukhas) in the historical

development of the Shari'a. See, for example, M. J. Kister, "On 'Concessions' and

26O n o t e s t o p a g e s 1 4 5 - 5 o

Conduct: A Study in Early Hadith," in Studies on the First Century of Islamic Soci-ety, ed. G. H. A. Juynboll (Carbondale: Southern Illinois University Press, 1982), 89-107.

21. See Khaled Fahmy, "The Police and the People in Nineteenth-Century Egypt," Die Welt des Islams n.s. 39, no. 3 (1999): 340-77. This is not to say, however, that the Shari'a courts were not always complemented by other judicial bodies. Indeed they were; some of those judicial bodies were set up by the ruler and estab-lished standards of evidence in some ways less exacting than those of the Shari'a courts. Yet this acknowledgment of the limits of the Shari'a was not the same as the organized suspicion represented in the establishment of a police force. And neither were perceived gaps in the rules the object of continual and increasingly complex legislation aimed at closing them.

22. William Scheuerman argues that the increasing invocations of emergency powers by all nation-states around the world has much to do with the accelerat-ing pace of things that has come with globalization, from flows of people to flows of money. William E. Scheuerman, "Globalization and Exceptional Powers: The Erosion of Liberal Democracy," Radical Philosophy 93 (January/February 1999):

14-23. 23. Decree-Law No. 44/1979. In 1985 the Supreme Constitutional Court, in its

decision of May 4, No. 28/2, declared the decree to be a misuse of the president's emergency power. See Nathalie Bernard-Maugiron and Baudouin Dupret, "Break-ing Up the Family: Divorce in Egyptian Law and Practice," Journal of Women of the Middle East and the Islamic World 6 (2008): 56-57.

24. A detailed discussion of the legislation enacted regarding hisba is provided by Kilian Bälz, "Submitting Faith to Judicial Scrutiny through the Family Trial: The 'Abu Zayd Case,'" Die Welt des Islams n.s. 37, no. 2 (1997).

25. Thus while the court pronounces Abu Zayd's interior relationship with his creator off limits, it nevertheless pronounces upon it. With worldly motives and desires of the kind the court described, one can hardly suppose that this interior relationship was very good.

26. See Winnifred Fallers Sullivan, "Judging Religion," Marquette Law Review 81, no. 2 (1998). See also her book The Impossibility of Religious Freedom (Prince-ton, NJ: Princeton University Press, 2005).

27. See, for example, the chain of cases that led up to and followed the well-known US Supreme Court case United States vs. Ballard (322 U.S. 78,1944). That judgment ruled the determination of the truth of religious doctrines to be uncon-stitutional, but it did not pronounce the determination of sincerity to be uncon-stitutional.

28. Thus Kent Greenawalt notes that "another category of claims that should not count as spiritual are schemes cloaked in religious language in which the in-centive to participate is financial self-interest and not spiritual development." Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness

n o t e s t o p a g e s iO3-io 261

(Princeton, NJ: Princeton University Press, 2009), 117. And later, "A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person's engaging in the behavior she asserts is part of her religious exercise" (122-23).

29. Thus, in the same discussion, Greenawalt writes, "Unfortunately, when the state offers exemptions based on people's convictions, it cannot avoid all inquiry into sincerity. A s I have said, the exact inquiry need not be whether an individual is probably sincere or not. Judges, or legislators, may adjust the precise question or standard of probability or both." Ibid., 118.

30. Mayanthi Fernando, "Reconfiguring Freedom: Muslim Piety and the Limits of Secular Law and Public Discourse in France," American Ethnologist 37. no. 1 (2010): 19-35.

31. Talal Asad, "Reflections on Secularism and the Public Sphere," Social Sci-ence Research Council, Items and Issues 5, no. 3 (2005): 3.

32. Sullivan, The Impossibility of Religious Freedom. 33. On questions and how they arise, see R. G. Collingwood, An Essay on Meta-

physics (Gatewood edition; Chicago: H. Regnery, 1972); see especially chapter 3, "On Presupposing."

34. See, for example, Mariz Tadros, "What Price Freedom?" Al-Ahram Weekly Online576, March 7-13, 2002, at http://weekly.ahram.org.eg/2002/576/fel.htm, ac-cessed August 24, 2011.

35. In fact, they were correct that advocates of the reform had an underlying agenda to liberalize the personal status law. Many of those who drafted the reforms had initially supported Al-Sadat's emergency reform of personal status laws in 1979, even though they were unhappy with the way it was done. When the Supreme Constitutional Court judged the emergency decree unconstitutional in 1985, they began to involve themselves in the task of reforming the law by other means. Diane Singerman gives an excellent description of the motives and sophisticated politi-cal strategies of those who set out to reform the personal status law and how their work culminated in the enactment of the controversial personal status reform in the year 2000. Writing about the fact that the reform was primarily procedural, she notes, "A focus on procedural changes in Personal Status Law involved only administrative changes, rather than changes in the basic law, and could be 'mar-keted' as such. It was doable, it could be historically and religiously legitimated, and at the same time, the debate and discussion that the new law would provoke could be useful as 'consciousness raising.'" Diane Singerman, "Rewriting Divorce in Egypt: Reclaiming Islam, Legal Activism, and Coalition Politics," in Remaking Muslim Politics: Pluralism, Contestation, Democratization, ed. Robert W. Hefner (Princeton, NJ: Princeton University Press, 2005), 161-88.

36. Ibid., 179.

37. Thus Ron Shaham writes: "Although the 'house of obedience' is not men-tioned in the Qur'an or the Sünna, the qadis held that resort to this mechanism was

26O n o t e s t o p a g e s 1 4 5 - 5 o

a husband's right according to both Islamic and statutory law, conditional upon the

proper treatment of the wife, which is demanded by the Qur'an (2:228). The qadis

complained that some men were exploiting this procedure for negative purposes,

such as the imprisoning of their wives in the house, threatening them, or forcing

them to give up their shar'i rights, while the real intention behind this mechanism

was to restore harmonious life between the spouses. Such an attitude, the qadis

complained, indirectly assisted the cause of women's rights movements, which were

publicly fighting to abolish the 'house of obedience.'" In Ron Shaham, Family and

the Courts in Modern Egypt: A Study Based on Decisions by the Shari'a Courts,

1900-1955 (Leiden: Brill, 1997), 95.

38. Amira El-Azhary Sonbol, "The Genesis of Family Law: How Shari'ah, Cus-

tom, and Colonial Laws Influenced the Development of Personal Status Codes," in

Wanted: Equality and Justice in the Muslim Family, ed. Zainah Anwar (Selangor,

Malaysia: Musawah, 2009), 127. A t http://www.musawah.org/docs/pubs/wanted/

Wanted-AEAS-EN.pdf, accessed July 31, 2011.

39. Carolyn Fluehr-Lobban and Lois Bardsley-Sirois, "Obedience ( T A ' A ) in

Muslim Marriage: Religious Interpretation and Applied Law in Egypt," Journal of

Comparative Family Studies 21, no. 1 (1990): 39-53.

Chapter Five

1. Much of this literature is found in the fields of history and Islamic studies. Yet

the assumptions within them are displayed more widely.

2. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press,

1964).

3. "Was the Gate of Ijtihäd Closed?" International Journal of Middle East Stud-

ies 16, no. 1 (1984): 3-41.

4. Thus Brinkley Messick writes, "According to the disputed view that the

'gate of ijtihäd' had closed, however, the successes of the advocates of active in-

terpretation eventually came to naught. This supposed watershed (c. A .D. 900) in

the development of the sharia corpus is characterized by Weber as marking both

a 'crystallization' of the four great Sunni schools of law, and, simultaneously, an

end to further interpretive additions to the set corpus. . . . There were jurists in

subsequent centuries, however, including such formidable minds as Ibn Taymiyya

(d. 1328) and al-Shawkani in early nineteenth-century Yemen, who rejected this

doctrine and brushed aside the boundaries and ossified dogmas of the schools to

advocate ijtihäd and rethink their positions from first principles, that is, the Quran

and Sünna. Aside from such prominent figures, however, it was the ordinary muftis

of Islam, continuously and unobtrusively, across region and time, who provided

the sharia with an interpretive dynamism through the exercise of ijtihäd in their

fatwas." Brinkley Messick, The Calligraphic State (Berkeley: University of Cali-

n o t e s t o p a g e s iO3-io 263

fornia Press, 1992), 148-49. It is interesting, however, that Messick's ethnographic

observations on the fatwa led to him to focus not on its doctrinal aspects but on

how it is written instead, and how the styles in which it was written indicated an

authoritative habitus.

5. A n entire issue of Islamic Law and Society (vol. 3, no. 2, 1996) was devoted

to a discussion of this point, as well as taqlid and ijtihäd. See especially Sherman

Jackson's contribution, "Taqlid, Legal Scaffolding, and the Scope of Legal Injunc-

tions in Post-Formative Theory: Mutlaq and 'Aam in the Jurisprudence of Shihad

al-Din al-Qarafi," 165-92. See also his later discussion: "Kramer versus Kramer in a

Tenth/Sixteenth-Century Egyptian Court: Post-Formative Jurisprudence between

Exigency and Law," Islamic Law and Society 8, no. 1 (2001): 27-51.

6. See, for example, Muhammad Khalid Masud, Brinkley Messick, and David

S. Powers, eds., Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge,

M A : Harvard University Press, 1996). A s I mentioned in an earlier note, the only

exception to the characterization of the fatwa literature I am describing here is the

work of Brinkley Messick. See, for example, his piece titled, "Media Muftis: Radio

Fatwas in Yemen," in Masud, Messick, and Powers, eds., Islamic Legal Interpreta-

tion: Muftis and Their Fatwas, 310-22.

7. Jackson, "Kramer versus Kramer," 27-51.

8. Ibid., 29, emphasis in text.

9. There is, after all, an extensive literature in Western legal theory about

whether judges in fact make the law, or whether they find the law. There are plausi-

ble arguments on one side or another. Moreover, discussions about how judges find

the law shows that the question of judicial interpretation is not a simple either/or

between creating new laws or merely applying existing ones. It is therefore strange

that Jackson jumps to the conclusion of construction. For an interesting discussion

on the question of making or finding law, see Franklin G. Snyder, "Nomos, Narra-

tive, and Adjudication: Toward a Jurisgenetic Theory of Law," William and Mary

Law Review 40 (May 1999): 1623-703.

10. Jackson, "Kramer versus Kramer," 39.

11. Ibid., 33.

12. Ibid., 49-50.

13. See Julie E. Cohen, "Creativity and Culture in Copyright Law," University

of California Davis Law Review 40, no. I (2006): 1151-205.

14. A detailed elaboration of these points can be found in Reinhart Koselleck,

"Time and Revolutionary Language," Graduate Faculty Philosophy Journal 9,

no. 3 (1983), and Futures Past: On the Semantics of Historical Time, trans. Keith

Tribe (Cambridge, M A : MIT Press, 1985).

15. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral

Thought (Albany: State University of New York Press, 1995).

16. See Mary Carruthers's interesting discussion of how memory was prized

in medieval European Christian thought and practice in ways similar to how

26O n o t e s t o p a g e s 145-5o

creativity is prized today. Mary Carruthers, The Book of Memory: A Study of Mem-

ory in Medieval Culture (Cambridge: Cambridge University Press, 1992).

17. John Hope Mason, The Value of Creativity: The Origins and Emergence of a

Modern Belief (Burlington, VT; Aldershot, England: Ashgate, 2003).

18. This is especially under modern liberal legal systems, where it is linked

to freedom of expression and the development of "personality." See Edward J.

Eberle, Dignity and Liberty: Constitutional Visions in Germany and the United States

(Westport, CT: Praeger, 2002); James Q. Whitman, "Two Western Conceptions of

Privacy: Dignity Versus Liberty," Yale Law Review 113, no. 6 (2004): 1151-222.

19. Just to be clear: my point is not that change doesn't happen. That things

change is something no one doubts or denies. But whether any change is a radical

innovation and whether the future must continually bring that on is another ques-

tion all together, in which more complex and contestable criteria are inevitably

involved. If it seems all too obvious that the future brings on radical novelty, then

that may simply be because we all too readily presuppose it, and so it is already part

of our descriptions, our experiences, our expectations and commitments.

20. Richard Sennett has done a splendid rethinking of the connections among

authority, temporality, and the self. His work on authority, unfortunately, has been

largely neglected. See his book Authority (New York: W. W. Norton, 1993). For

an enlightening discussion on issues of authority, see also the exchange between

Steve Caton and Talal Asad in David Scott and Charles Hirschkind, eds., Powers

of the Secular Modern: Talal Asad and His Interlocutors (Stanford, C A : Stanford

University Press, 2006).

21. Talal Asad, "Law, Ethics, and Tradition in the Story of Egyptian Modern-

ization," in Religion and Its Other: Secular and Sacred Concepts and Practices in In-

teraction, ed. Heiki Bock, Jörg Feuchter, and Michi Knecht (Frankfurt; New York:

Campus Verlag, 2008).

22.1 thank Veena Das for bringing this question to my attention.

23. Kevin Reinhart, "Transcendence and Social Practice: Muftis and Qadis as

Religious Interpreters, Annates Islamogiques 27 (1993): 13.

24. Talal Asad, Genealogies of Religion: Disciplines and Reasons of Power in

Christianity and Islam (Baltimore: Johns Hopkins University Press, 1993); Charles

Hirschkind, The Ethical Soundscape: Cassette Sermons and Islamic Counterpublics

(New York: Columbia University Press, 2006); Saba Mahmood, Politics of Piety:

The Islamic Revival and the Feminist Subject (Princeton, NJ: Princeton University

Press, 2005).

25. This is Kirstie McClure's rendition of the role of medieval exempla, as em-

ployed by Machiavelli and as reworked by Hannah Arendt in her distinctive no-

tion of (political and ethical) judgment. Kirstie McClure, "The Odor of Judgment:

Exemplarity, Propriety, and Politics in the Company of Hannah Arendt," in Han-

nah Arendt and the Meaning of Politics, ed. Craig Calhoun and John McGowan

(Minneapolis: University of Minnesota Press, 1997): 53-64. On historical transfor-

mations of the conceptions and uses of exempla, see Timothy Hampton, Writing

n o t e s t o p a g e s 1 8 5 - 9 7

2 6 5

from History: The Rhetoric of Exemplarity in Renaissance Literature (Ithaca NY Cornell University Press, 1990).

26. The optionality of belief, of course, is the fundamental premise that launches Charles Taylor's discussion of secularism in his A Secular Age (Cambridge MA-

Belknap Press of Harvard University Press, 2007).

Chapter Six

1. A number of important legal institutions conglomerate around this metro

stop: besides the Court of Cassation, for example, there is the Lawyers' Syndicate

and the Judges' Club. So it is a place of constant legal and political activity; the

sidewalks are lined with law books and journals for sale.

2. Montasar Al-Zayät , AI-Jihad Kilma (Cairo: Khuloud Li'l-Nashr wa'l-

Tawziya, 1998), 123-26.

3. For a book that gives an interesting discussion of these points, see Mahmood

Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (New

York: Pantheon Books, 2009).

4. These include three reports upon which I especially rely, from the now de-

funct Cairo Human Rights Legal Aid ( C H R L A ) : "Military Courts in Egypt: Courts

without Safeguards, Judges without Immunity, Defendants without Rights," 1995,

Cairo; "The Highest Authority? The Constitution and the Law in Egypt," 1996;

and "Emergency Law," 1998. Another source is a report by the International Com-

mission of Jurists (ICJ) titled " E g y p t — A t t a c k s on Justice," August 27,2002. Some

of the elements of the emergency state's legal and administrative structure that I

describe in this chapter have since been modified through legislation. For example,

in 2003 the Egyptian parliament passed legislation abolishing the "normal" state

security courts, while retaining the "emergency" state security courts (both are

discussed in this chapter). However, the legislation had not been implemented by

2007, when article 179 of the Egyptian constitution was amended to give the presi-

dent the power to refer terrorism cases to any court of his choice—thereby turning

what was before a power of emergency law into one of normal legality. Neverthe-

less, the Egyptian parliament in 2010 voted to extend what it called a restricted

state of emergency, pertaining solely to terrorist and drug-related crimes, that in

no way diminished executive emergency power. Thus, in this chapter I describe the

major features of the emergency state as they stood up until 2003. This is not only

because they structured the emergency state for decades, but also because subse-

quent legal modification had little impact upon them—except to make the work of

these activist lawyers even more precarious.

5. C H R L A , "The Highest Authority?"

6. Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the

Gulf (Cambridge: Cambridge University Press, 1997).

7. ICJ, " E g y p t — A t t a c k s on Justice."

2 6 6 n o t e s t o p a g e s 1 9 7 - 2 1 6

8. The presumption of the Court of Cassation is that the facts of a case have

already been given a thorough review of under the Court of Appeals and the Court

of First Instance. This is based on the principle that the Egyptian court system pro-

vides for two levels of review. Thus the facts of a case are given review in the Courts

of First Instance and the Court of Appeals; while the proper application of the law

is given review in the Court of Appeals and the Court of Cassation.

9. Brown, The Rule of Law in the Arab World, 112.

10. Ibid., 92.

11. Atef Shahat Said, "The Judges Club of Egypt: A Space for Defending De-

mocracy and the Independence of the Judiciary" (master's thesis, American Uni-

versity in Cairo, 2004), 31.

12. Ibid., 98-99, 113. Judges' emphasis on correct procedure also opened the

door to one tactic that lawyers could use to free detainees: raising a lawsuit against

the government in the administrative courts. Lawyers started to argue, somewhat

successfully, that the presidential order for detention is first and foremost an

administrative document and is thus regulated by administrative law. Not only must

such a document therefore fulfill the conditions set forth by that law to be valid, the

only court that can properly decide on whether or not those conditions have been

fulfilled is the administrative court. This way, lawyers were able to shift detention

cases entirely away from the emergency State Security courts and into the normal

court system. More, they were often able to get some monetary compensation for

the detainee, for the harm done to him or her due to an invalid detention order.

Moreover, the general distaste of the regular judiciary for exceptional courts of any

kind made it easier for lawyers to raise civil compensation suits for detainees who

claimed to have been tortured under detention.

13. C H R L A , "Military Courts in Egypt."

14. C H R L A , "The Highest Authority?"

15. Brown, The Rule of Law in the Arab World, 106-7.

16. A central stop at the center of downtown Cairo.

17. Al-Zayät, AI-Jihad Kilma, 129-30.

18. Ibid., 132.

19. Ibid., 13.

20. Mahmüd Abu al-'Ainein, Al-'Itiqäl (Cairo: Al-Majmu'a Al-Muttaheda Lil-

Taba'a wa-l-Nashr, 1994), 3-6.

21. The only exception to this is in personal status law, because its laws are un-

derstood to be explicitly derived from the Islamic Shari'a.

22. Muhammed Khalll, Ay at al-Qur'an al-Qanüniyya, 1998.

23. Talal Asad, "Redeeming the 'Human' through Human Rights," in Forma-

tions of the Secular: Christianity, Islam, Modernity (Stanford, C A : Stanford Univer-

sity Press, 2003), 127-58.

24. Vernon Van Dyke, "Human Rights without Discrimination," American Po-

litical Science Review 67, no. 4 (1973): 1267-74.

n o t e s t o p a g e s iO3-io 267

25. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace

Jovanovich, 1973).

26. On this see Asad, "Redeeming the 'Human' through Human Rights"; Jef-

fery C. Isaac, " A New Guarantee on Earth: Hannah Arendt on Human Dignity

and the Politics of Human Rights," American Political Science Review 90, no. 1

(1996): 61-73.

27. My concern here is not how effective this practice actually was. This would

be very difficult to determine. Moreover, as I have shown here, Islamist lawyers

are well aware of the limits of their ability to effect change. Despite this awareness,

they still felt it was worth making these appeals. My concern, then, is to explore the

conditions that enable the intelligibility of what would otherwise be an evidently

contradictory practice for these lawyers. I ask: under what conditions is this a co-

herent practice for the lawyers who enact it, such that it is not seen as a contradic-

tion by them? And my argument is that there are particular structures of the state

that render this practice intelligible.

28. One of example of where majority sensibilities and those of the state's foun-

dational narratives strongly diverge is contemporary Turkey. While the population

is increasingly drawing upon Islam, the state defines itself, and its emergence, in

terms of secularism (laiklik). Although there are connections between the two,

when a perceived disjuncture between them is brought for legal adjudication, the

state's foundational narrative consistently prevails.

29. Partha Chatteijee, Nationalist Thought and the Colonial World: A Deriva-

tive Discourse? (London: Zed for the United Nations University, 1986), 42.

30. That is one reason why, going back to the very first chapter on hisba, the

Egyptian courts could define the public interest in terms of the rights of God and

argue that Nasr Abu Zayd had threatened the public order and the foundation of

the state by attacking Islam.

31. On these points, see Michelle Alexander, The New Jim Crow: Mass Incar-

ceration in the Age of Colorblindness (New York: New Press, 2010); Angela Davis,

Arbitrary Justice: The Power of the American Prosecutor (Oxford: Oxford University

Press, 2009); James Q. Whitman, Harsh Justice: Criminal Punishment and the Widen-

ing Divide between America and Europe (Oxford: Oxford University Press, 2005).

32. One piece that deals with and complicates this perspective is by Tamir

Moustafa, "Law versus the State: The Judicialization of Politics in Egypt," Law

and Social Inquiry 28 (Fall 2003): 883-928.

33. For example: Jules Lobel, "Emergency Power and the Decline of Liberal-

ism," Yale Law Journal 98, no. 7 (1989): 1385-433; Michal R. Belknap, "The New

Deal and the Emergency Powers Doctrine," Texas Law Review 62 (August 1983):

67-109; Joel B. Harris and Jeffery P. Bialos, "The Strange New World of United

States Export Controls under the International Emergency Economic Powers

Act," Vanderbilt Journal of Transnational Law 18 (Winter 1985): 71-108; William

E. Scheuerman, "Globalization and Exceptional Powers: The Erosion of Liberal

268 n o t e s t o p a g e s 197-216

Democracy," Radical Philosophy 93 (January/February 1999). See also Giorgio Agamben's short history of the development of exceptional powers in Europe and the United States in his book State of Exception, trans. Kevin Attel (Chicago: Uni-versity of Chicago Press 2005), 1-31.

34. Scheuerman, "Globalization and Emergency Powers," 15. 35. Ibid.

36. Agamben, State of Exception. 37. In fact, the concept of public order was only incorporated into Canon Law

after it had been developed and elaborated within private international law. See John Henry Hackett, The Concept of Public Order (Washington, DC: Catholic University of America Press, 1959).

Epilogue

1. One of the most eloquent exponents of this view is Paul Kahn. His recent book. Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011), is both lucid and highly thought provok-ing. It nevertheless expounds a view with which, for the reasons discussed here, I profoundly disagree. In disagreeing with this particular style of political theological analysis, I do not mean to say that that theological frameworks cannot be employed in productive ways to analyze contemporary secularity. This does not necessarily mean, however, that secularity is somehow intrinsically theological.

2. Members of the Muslim Brotherhood, however, were not completely united in their support for the amendments. See Hany Elwaziry, "The Muslim Brother-hood Reformist Wing Rejects Constitutional Amendments," Al-Masry Al-Youm English Edition, March 18,2011, http://www.almasryalyoum.com/en/node/362657, accessed October 17.

3. This was not, however, the official stance of the Muslim Brotherhood.

4. Though these groups are internally diverse, they are usually categorized as salafiyyln, or "salafis." They are distinct from the Muslim Brotherhood and have become increasingly politically organized since the fall of Mubarak. It is worth noting, however, that this protest, which occurred on July 29,2011, was not initially organized primarily by or for the salafis. However, they came out in massive num-bers, dominating the protest, to oppose what they saw as attempts to stifle their democratic voices.

5. No doubt, all states undergoing major, rapid transitions of the kind that Egypt is now experiencing will exhibit high levels of uncertainty and anxiety. But as I have shown in this book, these secular-religious ambiguities existed long be-fore the transition and have become even more pronounced in the aftermath of the initial protests.

n o t e s t o p a g e s iO3-io 269

6. Bare sovereignty is therefore much more than, and significantly different

from, the principle of "we the people" that is formally used to justify state sover-

eignty within the democratic tradition. The state has frequently used that principle

to justify various impositions and exceptions upon the population it governs. Bare

sovereignty, however, breaks through this principle of justification; indeed, bare

sovereignty is not a principle at all, but an exceptional existential moment, an ex-

pression of power that arises from the potentialities intrinsic to a given mode of

life. I thank Talal Asad for helping me with this formulation.

7. I speak of animating principles in the sense Hannah Arendt discusses. See

Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought

(New York: Penguin Books, 2006).

8. It should be remembered that much of the animus of the protestors was di-

rected against the Ministry of the Interior, a hub of the massive security apparatus

that had come to define the state. This animus has continued to manifest even

until the moment of this writing, through a series of protests, ongoing sit-ins, and

conflicts with the security forces.

9. Indeed, subsequent protests have tried to retrieve the principles and sensibili-

ties of the initial ones. However, they have increasingly failed, becoming more and

more fractured despite their frequent successes in keeping pressure on the army to

fulfill their promises and maintain political accountability.

10. Talal Asad, "Thinking about Religion, Belief, and Politics," in Cambridge

Companion to Religious Studies, ed. Robert Orsi (Cambridge: Cambridge Univer-

sity Press, forthcoming).

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Index

'Abbäs, 202-4, 2 1 0

'Abd el-Mäged, 188,189; 'Abbäs and, 202, 203, 204,210; human rights discourse used by, 214; human rights groups and, 194, 201-2; imprisonment of, 219-21; language of justice of, 215; leftist lawyers and, 190,191,192-93; opposition to constitutional amendments, 229; trip with, to help detainees, 205-11; zulm and, 211—13. See also Islamist lawyers

Abu Zayd, Nasr: as Cairo University professor, 18,45; departure from Egypt, 70; wrecked life of, 103

Abu Zayd case, 18-20,45-47; arguments and themes of, 47-53; indeterminacy of secular power and, 102,103,104; interest of plaintiff in, 48,49,52,55-56,59,65-67,147; published writings as evidence in, 47,51,52,58,59, 146,149,152; reac-tions to decision, 19, 69-70; Shari'a and, 18, 20,43,45-47,59,71. See also hisba

active principle of secularism, 72,73,94,97, 102; indeterminacy of secular power and, 104; national security and, 223; suspi-cion and, 131

adab, 243^1 'adäla (integrity, or moral uprightness), 54-

55,57,58,60, 243n33, 245n40 administrative courts: advocacy for de-

tainees in, 22,205,2Ö5ni2; highest court of, 24in8; law of detention and, 195-96

administrative detention, 143,194-96. See also detainees

adultery, 174-75 Agamben, Giorgio, 142-43

Al-Azhar Mosque, 3. See also Fatwa Coun-cil of Al-Azhar Mosque

Al-Azhar University, 82 Al-Jihad, 199 Al-Shafi'i, 243n33 anxiety: allayed in Fatwa Council, 176; of

Islamist lawyers, 202, 204, 206,210; about the law, 108-9, 1 1 0> 131,132,137; power of the state and, 32,34,35,38,74; provoked by hisba judgment, 20, 69,147; about relation between the secular and the religious, 1,3,17; about religious claims, 33. See also suspicion

apostasy: in Abu Zayd case, 18,45,46, 47, 48,49-51,52,59,146,148-49,152; in Christian polygamy case, 94; documen-tary evidence of, 51,52,58,59,146,149, 152; trials of public intellectuals for, 3

Appeals Court, Cairo: judgment in Abu Zayd case, 18,19,45,48-51,65

Arendt, Hannah, 126,216-17 Asad, Talal: on democratic sensibility vs.

democratic political system, 233, 234; on discursive tradition, 44; on French ban-ning of veil, 150-51; on Islamic Revival, 181; on language of justice, 215; on legal equality, 133-34; on the modern project, 7; on openness in Fatwa Council, 176; politicization of religion and, 185; on secular-secularism distinction, 1-2; on suspicion and modern law, 130-31

asecularity, 187,189, 231,232-33, 234, 235 authority: liberalism and, 126-27,141; the

self and, 126-27,18o; suspicion and, 126-27,138,141

2 7 2

authority of fatwas, 4,162-70,178-79,180, 181,182,183,184

authority of law, 126,127; judicial perfor-mance of, 137; sovereign exception and, 142; suspicion and, 138,141

awqäf, 56-57, 245n38 Baca, Jimmy Santiago, 220 banks. Islamic, 8,18 bare sovereignty, 231, 234, 268n6 baytal-ta'a (house of obedience), 157-58,

26in37 belief: apostasy vs., 148-49; court jurisdic-

tion to judge upon, 48,49; courts' restric-tion to doctrinal statements, 58,59; free-dom of, 21, 28,50-51,66, 226; Locke on coercion and, 256^5; public/private distinctions with respect to, 52,59. See also apostasy; religious freedom

Berger, Maurits, 93, 94, 25on29 blasphemy laws, 97,103 Brinton, Judge J. Y., 56-57, 258mo Brown, Nathan, 140, 196,197-98 burqa, French ban on, 103 Cairo Human Rights Legal Aid, 192, 200 Cairo University, 18, 45 care of the self, 36,179-82,184 censorship of the press, 194 censorship trials, 3 Christianity in England, 98,103 Christians under Egyptian law, 93; divorce

and, 94-95,96; inheritance or guardian-ship and, 114; polygamy case, 92-94,96, 97-98

civil law procedures, in Abu Zayd case, 48, 52

civil law tradition, 43-44; divisions of, 55-56, 244n35; Egyptian legal system and, 53-54.55-57,59, 245037; individual inter-ests in, 55-56,59,61,64-65; rights in, 61, 246n53. See also French law

coercion, 125-26,127; Locke on belief and, 256n25. See also authority

colonial regimes: emergency powers for control of, 221; modernity and, 6-7

Constable, Marianne, 258ml Constitution, Egyptian: as authority in Abu

Zayd case, 51,52; executive powers in, 200; on family as foundation of society,

i n d e x S

78,100; freedom of religion guaranteed in, 3; proposed drafting of new constitu-tion, 229,230; referendum over pro-posed amendments to, 228-30; Shari'a as source designated in, 2,4,59,82-83, 237m, 249ni6, 249ni9; State Security courts authorized by, 196,197

Court of Cassation, 24M8; decision in Abu Zayd case, 19,45,51-52,68; role in ap-peals process, 265ns; secrecy in personal status hearings and, 78-79; Shari'a courts recognized by, 48; State Security court verdicts appealed to, 197

courts: appeals of facts and the law in, 26sn8; delay in, 140-41,145,155-56,183,259ni5; in Egyptian emergency state, 193-94; exceptional, 193-94, '96-99: expansion of police power and, 144-45; military, 196,198,199. See also administrative courts; Appeals Court, Cairo; Court of Cassation; Giza Court; judges; law; Na-tional Courts; personal status courts; Shari'a courts; Supreme Constitutional Court (SCC)

creativity, 163,166-67,168-69 Danish cartoons of the Prophet, 30 Dar al-Ifta, in, 249^3 democracy: modernity and, 5,6,10; secu-

larly and, x, 3; secular-religious ambi-guity accompanying, 230; sensibility of protests and, 233, 234. See also Western democratic states

democratic elections: after fall of Mubarak, 228-29, 234-35

democratization of Islamic authority, 10, 12

Derrida, Jacques, 108 desire and anxiety, 32 detainees: administrative court actions for,

22,205, 2Ö5ni2; Islamist lawyers advo-cating for, 188-89, '90. :94> 202, 205-11; Islamist lawyers detained, 201; jour-nalists detained, 201; legal basis for de-tention, 194-96; power of attorney for, 205-9; visitation of. 208-9; zulm and, 212. See also Egyptian state of emer-gency; Islamist lawyers

discursive tradition, 43-45 distrust. See suspicion

i n d e x 2 7 3

divorce: of Catholics under Egyptian law, 94-95,96; court delays and, 156; court order for wife's return and, 159; Fatwa Council cases about, 116-18,119,171-74,177-78, 254^; French regulation of religion and, 103; khul', 138-39,141, 161-62; personal status courts and, 94-95,96,113,154,156,159,254n7; recon-ciliation centers and, 82; rights of God and, 48,60,65; shotgun, 160-62

documentary evidence, 56-58,59, 245n40 dowries, 138-39,141 drunkenness, 116-17 Egyptian legal system: civil law tradition

and, 53-54,55-57.59. 245^7; legislative activity after fall of Mubarak and, 228; massive reforms of 1970s, 82-83; problem-space of secularism in, 74; revi-sion of Civil Code in 1930s, 59; sources of, 2-3. See also Constitution, Egyptian; courts; law

Egyptian state: interim ruling military coun-cil, 228, 229, 230; modernizing project of, 5-6,7,42-43,99,109, 221,222, 224-25; Mubarak regime, ix, x, 199, 200-201, 224,225,228,232; Western fears about future of, 234-35. S e e fl'so modern state; protest movement of 2011

Egyptian state as secular or religious, 2-4, 5; after fall of Mubarak, 225, 228; hisba case and, 20, 21,68,70; intractability of secularity and, 7,71,105; problem-space of secularism and, 40-41,227-28. See also line between religion and politics

Egyptian state of emergency, x, 193-202; administrative detention in, 194-96; exceptional courts in, 193-94,196-99: not exceptional for a modern state, 37-38,221-23; Al-Sadat's use of, 83; simulation of emergency powers in, 194, 199-202. See also detainees; emergency states; Islamist lawyers

Eickelman, Dale (of E&P), 11-14 emergency law, 193-96 emergency states: globalization and, 26on22;

national security and, 39,97, 223; or-ganized suspicion and, 145; political theology and, 222; sovereign exception and, 37,39-40, 142-43; threat to public

order and, 218; of United States, 37. See also Egyptian state of emergency

emergency State Security courts, 196-97, 198,199

E&P (Eickelman and Piscatori), n-14 equality: judges' demeanor and, 132-34;

liberalism and, 226; public order and, 98, 103-4,218, 223

Escher, M. C., 1. See also hands drawing each other

Esmeir, Samera, 232 Euben, Roxanne, 16 Europe: near paranoia toward Muslims in,

151; shift of 1970s toward secrecy and intimacy, 83-84. See also Christianity in England; France

European Court of Human Rights, 97 European law: concept of public order in,

95; procedures of proof in, 124-25,131. See also French law

evidentiary procedures, 56-58,59,245^0; in Abu Zayd case, 51,52,58,59,152

exceptional courts, 193-94, 196-99 exceptional power, 222. See also rule of law:

spaces of exception within executive powers: general prosecutor and,

135,147-48,152; hisba and, 147-48-152, 153; public order and, 97; simulating emergency states, 200-201; in state of emergency, 194; in United States, 221-22. See also sovereign exception

Fahmy, Khaled, 144-45 family: personal status law and, 155-56,157;

public order and, 74,92,96,97,100-101, 158—59; religious laws governing, 92-93; sanctity of, 77,99,100; secrecy of personal status hearings and, 77,78-79, 81-82; Shari'a courts and, 99-100; shift of 1970s toward secrecy and, 83-85,91; state sovereignty and, 101. See also di-vorce; guardianship; intimacy; marriage; personal status courts

family courts, 81-82,154 Fatwa Council of Al-Azhar Mosque, 3,4-5,

84-92; as asecular space, 187,189; Dar al-Ifta and, i n , 249^3; divorce cases seen at, 116-18,119,171-74,177-78, 254n7; established in 1935,85, i n ; everyday practice of, 170-79; future

274 i n d e x

Fatwa Council of Al-Azhar Mosque (cont.) possibilities for, 235; gender issues and, 36; lack of suspicion in, 176,177, 183; purpose of, 170-71,181; qualities ex-pected of mufti in, 168,177-79,180; salafayya movement and, 2561129; Sheikh Sayyid Tantawi at, 111,25on25. See also personal status courts vs. Fatwa Council

fatwas, 4,84; authority of, 4,162-70, 178-79, 180,181,182,183,184; care of the self and, 36,179-82,184; creativity of, 163, 166-67, t68,169; of Daral-Ifta, 249023; doctrinal reasoning and, 4,162-65, 169, 170,179,182; manipulation and, 117-18, 121,164,165-66; responsibility of mufti for, 175,180; Shari'a courts and, 110-11, 125-26; taken seriously, 118,119, 120

feminist lawyers, 154 Fernando, Mayanthi, 150 financial guardianship, 79-81, 113,114-15,

138 Foucault, Michel: on care of the self, 179-80;

on liberal suspicion of authority, 141; on religiosity in post-Shah Iran, 16

France: colonial power in Algeria, 6; dis-crimination against Muslims in, 98; problem-space of secularism in, 227; regulation of religious symbols and dress in, 98,102-3, 15°-5 I- See also French law

freedom: of belief, 21, 28,50-51,66, 226; creativity and, 168-69; Egypt's future and, 225; of expression, 3; Foucault on power and, 180; legal authority and, 126; line between religion and politics and, 27, 28; public order and, 32, 218. See also religious freedom

French law: as basis of Egyptian legal sys-tem, 2,43,76; Egyptian Civil Code re-vision in 1930s and, 59; privacy in, 63-64; public order and, 100-101; written docu-mentation and, 57. See also civil law tra-dition; European law; France

Frisch, Andrea, 124-25 fundamentalism, 9,15,196

gap between secularism's political aspira-tions and attitudes, 26-27,233

gender issues: human rights discourse and, 216; in personal status courts vs. Fatwa

Council, 36,154-59,184; Sadat's reforms regarding, 83, 200

general prosecutor, 134-37; hisba restricted to, 147,152. See also hisba-. restricted to public officials

Ghonim, Wael, 232 Giddens, Anthony, 9 Giza Court, 47,48,49,50 globalization: emergency powers and,

26on22; features of modernity and, 9 Google executive Wael Ghonim, 232 governmentality, 141, 142-43, 145. See also

state sovereignty Greenawalt, Kent, 26on28, 261029 Greenblatt, Stephen, 256^7 guardianship, in personal status courts, 79-

81,113,114-15,138 Hadith: belief and, 61; interpretation of, 55,

2431133 Hallaq, Wael, 163 Hamid, 213-14 Hanafi school of Islam, 242ni2; apostasy of

Abu Zayd according to, 47,52; personal status courts and, 48,49

hands drawing each other, 1, 2,39-40 head scarf, 3,103. See also veil Hirschkind, Charles, 181 Hirschman, Albert, 66 hisba, 18-20; aimed to produce correct fears

and passions, 64; ambiguity represented by, 21,23, 40,70-71; defined, 18-19; a s

duty of all Muslim citizens, 69; earlier use in 1960s court case, 247m; legaliza-tion of, 64-68,70; liberalized Shari'a and, 23,70,75,102,184; original appli-cation to marketplace, 60; politicization of, 185; potential use against the state, 66; public order and, 20,65,69,92,102,104, 146, 153; restricted to public officials, 19, 46,68,69-70,102,147-48,152; secular power and, 23, 24, 25,30,32,101-5,147, 153; within the Shari'a, 20,60-64; sover-eign power of state and, 31,74,105,145-48,152,154; strategies expanding do-main of, 59; suspicion associated with, 36,146,147-48,149,152-54, 181,184; tolerance and, 103-4; transformed under civil law, 46-47. See also Abu Zayd case; moral inquiry and criticism

i n d e x 275

historicity, 15,167-68,169 Horii, Satoe, 2591120 the human as subject of rights, 38,40,189,

215-17,219 Human Rights, Universal Declaration of,

101,216 human rights discourse and organizations,

190-93,194, 202,210-11,214,215-17 Hutson, Lorna, 2561127

ijtihäd, 51,52,162-63, '64, 262n4; empower-ment of judges to use, 83

impartiality, legal, 132,133,136,137 indeterminacy. See legal indeterminacy;

secularism: indeterminacy of; secular power: indeterminacy of

interest: in civil law tradition, 55-56,59,61, 64-65; historical transformations in con-cept of, 66; of plaintiff in Abu Zayd case, 48,49.52.55-56,59,65-67,147

international law, public order in, 95-96, 97,101

intimacy: Fatwa Council of Al-Azhar and, 86,88,91,176-77; personal status courts and, 79,81,91; public order and, 100-101; Shari'a in Egyptian law and, 92,99, 100; shift of 1970s toward, 83-84. See also family

invented tradition, 12,44,238ni3 Islam: Hanafi school of, 47,48,49,52, 242ni2;

objectification of, 10-11,12-13,15,17; as religion of the State, 51,219,228,229-30,2Ö7n30. See also Hadith-, Qur'an

Islamic Awakening (Al-Sahwa Al-Islamlyya),

9,82,181 Islamic banks, 8,18 Islamic community (umma), 49, 61,65 Islamic law. See Shari'a Islamic religiosity, contemporary: conditions

of power enabling and constraining, 18; critiques of modernity arising from, 16; as lived and experienced, 17-18; seen as a problem, 9,10, n , 13,17; shift toward secrecy and, 82,91; social theorists on, 8-9,10,15-17,18

Islamic Revival. See Islamic Awakening Islamic textual interpretation, 243^3. See

also Hadith\ ijtihäd; Qur'an Islamism: shift toward secrecy and, 82,91,

92; social theorists on, 9,13

Islamist lawyers, 21-22,188-93, '94; 'Abbäs, 202-4; under detention, 201; language of justice of, 38,39,40,189,214-19; leftist lawyers and, 190-91,192,193, 210; oppo-sition to constitutional amendments, 229-30; personal status reform of year 2000 and, 156; zulm and, 211-14, 215. See also 'Abd el-Mäged; detainees; Zayät, Montasar Al-

Islamist Lawyers' Association, 192,202-5, 2 1 0

Islamist lawyers' movement, 21-22 Islamists: accused of assassinating Al-Sadat,

199; Egyptian future and, 234-35; gov-ernment repression of, 22,37 (see also detainees; Islamist lawyers); opposition to hisba legislation, 69-70; plain clothing of, 208; violence between government and, 199. See also Muslim Brotherhood

Islamization, 82,83 Israel, 5-6 Jackson, Sherman, 164-66,263n9 Jay, Martin, 108 Jehan's law, 145 Jews: under Shari'a, 94,96. See also Israel;

Zionism Johansen, Baber, 19 journalists: detained, 201; muftis' wariness

of, 88-89. See also press freedom judges: appealed to as Muslims, 214,217,

266n27; demeanor in personal status courts, 132-34; empowered to use ijtihäd, 83; obligated to adhere to legislated texts, 22. See also justice

Judges' Club, 198-99 judicial independence, 198-99, 202 justice: appearance and enactment of, 137,

152-54, 258n8, 258m 1; demeanor of judges and, 133; paradoxical relationship between law and, 35,108, no, 112,121, 183; substantive vs. procedural, 137, 258nio. See also judges; language of justice; law

Kafka, Franz, 257m Kahn, Paul, 267m Khalil, 134,135-36 khul' divorce, 138-39,141; sheikhs' practices

similar to, 161-62 King, Martin Luther, Jr., 215

276 i n d e x

language of justice: of Islamist lawyers, 38, 39,40,189,214-19; political theology and, 223; in protests of 2011,231. See also just ice

Lapidus, Ira, 243^1 law: anxiety about, 108-9, I I 0 > '31,132,137;

Foucault on, 141; interpretation of, in Western legal theory, 263^; legitimacy of, 126,127,128,137; looping effect in-volving, 138-41,143,183; manipulation of, 131,138,140-41,156-57,183; per-formativity of, 137. See also civil law tra-dition; Constitution, Egyptian; courts; Egyptian legal system; emergency law; European law; evidentiary procedures; French law; international law; justice; rule of law; Shari'a; sovereign exception

law 462,48,49,50 Law of Vagrants and Suspects, 195-96 lawyers. See Islamist lawyers; leftist lawyers Lawyers' Syndicate, 22,190, 201,211; sit-in

at, 202-5 leftist lawyers, 190-91,192,193, 210 legal attribute, 48,55. See also interest legal indeterminacy, 109-10, 253n4 liberalism: authority and, 126-27,141; ex-

ceptional powers and, 222; freedom of the self in, 126; hisba and, 20, 21; hisba legislation and, 69-70; modernity and, 6-7; Muslim world and, 3; problem-space of secularism and, 28-29,71-72, 226; reform in Muslim world and, 10, 24-25; reforms of 1970s and, 83, 84,145; religion's proper place in, 75. See also vigilance against abuses of power

liberalized Shari'a, 23,30,70-71,74,75,91-92,99, 102,184

line between religion and politics: active principle of secularism and, 72; bare sovereignty and, 231; blurred by secular power, 184-85; debates after fall of Mubarak and, 230; democratic sensi-bility and, 234; Fatwa Council's indiffer-ence to, 186-87; hisba decision and, 70; political theology and, 227; public order and, 30,39,74,98,101,102,104, 105; secular problem-space and, 27-30,40-41,226-28; state Is authority to draw, 72-73,226-27; suspicion and, 151. See also Egyptian state as secular or religious

Locke, John, 256025 loopholes (hiyal), 143-44, 259n20 Madani, 'Abd al-Härith al-, 22,201 Mahmood, Saba, 181,232 majority-minority relations, 98 makhärij (exits), 143-44,259MO Malcom X, 215 mal courts, 113-16,132-33,138. See also

personal status courts the manifest (al-zähir), 61-62, 246n6o marriage: apostasy leading to annulment

of, 18,19,45,46,47,69; below legal age, 139-40; of couple with same wet nurse, 175-76; dowries for, 138-39,141; legal shift of 1970s and, 83-84; mixed Muslim/ Christian, 93; monthly support payments by husbands, 119; obedience of wives in, 157-59, 26in37; personal status courts dealing with, 113; polygamous, 92-94, 96; secularist questions about, 30

maslähä (interest), 66 Mason, John Hope, 168 Merryman, J. H., 43-44 Messick, Brinkley, 12, 25707, 26204 military courts, 196,198,199 Ministry of the Interior, x Mixed Courts, 53-54,59; independence of

judges in, 198; procedures of evidence inherited from, 57, 258nio; professionals in,244n37

modernity: contemporary Islamic religiosity and, 10,16; as natural, 10, n , 15; non-secular, 24; rule of law and, 109; social theorists of, 9-15; of states, 5-7

modern norms: critiqued within social theory, 15-16; presupposed as natural, 16,17. See also secular norms

modern state: Egyptian project of becoming, 5-6,7,42-43,109, 221, 222, 224-25; foundational narrative of, 217-19, 223, 266n28; Islamic doctrine and, 163; law and political strategies in, 53; legality and legitimacy in, 126; public order concept in, 95; public/private distinction in, 72-73; rule of law and, 73,217-19; secularism and, 7,71,72; sovereign exception and, 37. See also regulatory capacities of state; state sovereignty

i n d e x 277

moral inquiry and criticism, 54-55,58,59, 243nn3i~33,244^7; fatwa compared to, 181; hisba in, 60,61,64-65,146; spying compared to, 63; written documents and, 57,58. See also hisba\ virtues

morality, and public order, 96,97,99 Mubarak, Hosni, ix, x, 199, 200-201, 224,

225,228,232 Mufti of State, 110,111 Mufti of the Republic, 110,111 muftis, 84; qualities expected of, 168,177-79,

180; responsibility of, 175,180. See also Fatwa Council of Al-Azhar Mosque; fatwas

Muhammad Ali, 53,59 multiple individual interests, 55-56,59,61,

64-65 Muslim Brotherhood: after fall of Mubarak,

229; lawyers of, 190, 201; plain clothing of, 208; political prisoners from, 192; reforms of 1970s and, 82; repressed by Egyptian state, 3; social theorists' view of, 9; Western fears about, 225. See also Islamists

Mustafa, 206-7, 2 0 9 muhtasib (one who applies hisba), 62-63,

24<>n55

nafs courts, 113,115. See also personal status courts

naslha (advice-giving), 243^2 Nasser, Gamal Abd el-, 53, 83, 100 National Courts, 48,54,55,59,76,99,198 national security: executive powers and, 200;

interim Egyptian government and, 228, 230; protests of 2011 and, 232, 268n8; public order and, 96,97, 218,223; State Security courts and, 197. See also security

national security paradigm, ix, x, 39,223, 232, 235

NGOs, 31,190,192 norms: law compared to, 126. See also modern

norms; public order norms; secular norms obedience of wives, 157-59,26in37 objedification of Islam, 10-n, 12-13, '5-17 Omani Muslim community, 13, 14 orphans: fatwas on inheritance by, 118-19,

125, 255ni9; financial guardianship of, 79-81,113,114-15,138

paradoxes: of all human practices, 109-10; of public order, 96-97,103-4; of secu-larism, 1-2,4,7,40-41. See also secu-larism: indeterminacy of; secular power: indeterminacy of

paradoxical authority of rule of law, 34-35, 107-13

paranoia: in general prosecutor's office, 136, 137. See also suspicion

personal status courts, 4-5; compliance problems in, 119-20; demeanor of judges in, 132-33; divorce cases in, 94-95, 96, 113,154,156,159, 254n7; fieldwork in, 76-77,78,79-81; guardianship cases in, 79-81,113,114-15; historical origin of, 54,59,76; intimacy and, 79, 81,91; legal manipulations in, 138; paradoxical au-thority of, 35; procedures in, 57-58,76-79; secrecy of hearings in, 77-79,81-82, 100, 248nio; suspicion in, 34,35,119, 120,121,183; two types of, 113. See also Abu Zayd case

personal status courts vs. Fatwa Council, 4-5; comparative method and, 120-22; gender and, 36,154-59,184; historical background of, 110-12; privacy and secrecy in, 75-76, 84-85,89-92; realistic basis for differences, 122-24; secular power and, 186-87; Shari'a in, 34,36, 40, 112,123, 127-28; suspicion and authority in,112-22,127-29

personal status law reforms, 2-3,4; of 2000, 138-40,141,155-57, 26in35; Al-Sadat's 1979 decree, 83,145, 200; gender and, 83,154-56, 200

Piscatori, James (of E&P), 11-14 political Islam, 9 political parties: after fall of Mubarak, 228,

229; religious, repressed by Egyptian state,3

political prisoners: held under Nasser era, 83. See also detainees

political theology, 186, 222-23,224, 226-27, 231, 234, 267m

politicization of religion, 33,41,184-85 politicized Islam, 24-25; of Islamist lawyers,

189 politics. See line between religion and politics power. See secular power; state power; vigi-

lance against abuses of power

2 7 8 i n d e x

press freedom: reforms of 1970s and, 83. See also journalists

Press Law of 1995, 200-201 privacy: Abu Zayd's defense and, 50; Ger-

man and French legal concepts of, 63-64; liberalized Shari'a and, 70-71: Shari'a in Egyptian law and, 23, 92. See also public/private distinction; secrecy

private international law, 95,96 problem-space, 28 problem-space of secularism, 27-32,71-72,

74,105-6,142,226-28; after fall of Mu-barak, 230, 231; democratic ethos and, 233; line between religion and politics and, 27-30,40-41, 226-28; Shari'a under rule of law and, 153-54

protest movement of 2011, ix-xi, 224, 225, 228, 229-33, 234

public interest, 96 public international law, 96 public Islam, 9 publicity of court hearings: appearance of

justice and, 137; Shari'a court reforms of 1897 and,99-100,131-32

public order: Abu Zayd's alleged attack on, 51,52; active principle of secularism and, 71-74,94,97, 223; administrative deten-tion and, 194; Christian polygamy and, 92-94, 96; defined, 73, 248^; defined by court, 93-94; in Egyptian law, 98-99; Egyptian state of emergency and, 219; in emergency law's text, 196,197; in Eu-ropean secular states, 100-101,102-3; exceptions and, 94-95,96,97-98,144; family and, 74, 92,96,97,100-101,158-59; hisba and, 20,65,69,92,102,104,146, 153; international law concept of, 95-96; Islamist lawyers and, 38-39; line between religion and politics and, 30,39,74,98, 101,102,104,105; national security and, 96, 97, 218, 223; paradoxes of, 96-97, 103-4; public court proceedings and, 131-32; religious freedom and, 97,98, 104; rights of God and, 65; rule of law and, 30, 38-39,73,98, 101, 217-19, 223; secrecy of personal status hearings and, 77) 78,79,91; secular power and, 73,74, 97,101; Shari'a and, 92,94,102; Shari'a court reforms of 1897 and, 98-100,157-58; sovereign exception and, 37,38,39;

state sovereignty and, 31-32,95-96,97, 100-101, 218, 223; tolerance and, 103-4

public order norms, 96 public policy, 250^9, 251^8 public/private distinction: Abu Zayd case

and, 52,55-56,59,65,67; of court prac-tice vs. Fatwa Council, 91; ethnography of, 74; in liberal thought, 75; in modern state, 72-73; rights of God and, 65,66; Shari'a court reforms of 1897 and, 100; spying and, 63; suspicion and, 131. See also privacy

Qarafi, Badr al-Din al, 164-66 Qur'an: Abu Zayd's writings about, 47;

'adäla and interpretation of, 55; chil-dren's reading schools for, 8; court judg-ments appealing to, 49,52; quoted in legal briefs, 213-14,215,217,219; retro-active application of, 167-68; student recitation group for, 160

racism, in South Africa, 5-6 reason, modernist notion of, 14,15 reconciliation centers, 82 reform, modern Islamic: Fatwa Council as

product of, 4,36, III; secularization narrative and, 24-25

reforms: legal and political, of 1970s, 82-84. See also personal status law reforms; social reform

regulatory capacities of state, 26, 29,31-32; democratic ethos and, 233; exceptional power and, 222; proliferation of law and, 35-36,145; public order and. 95, 96-97

Reinhart, Kevin, 167-68 religion: dangers posed by, 37-38;

politicization of, 33,41,184-85; war on terror and, 223. See also Christians under Egyptian law; Islam; Jews; line between religion and politics

religious claims, suspect under secularism, 33,122,150,151

religious freedom: Abu Zayd decision and, 69,70,103,104,149,152,153; banning of veil and, 150-51; foundational principles of, 104; legal impossibility of, 153; limits of, 3; public order and, 97,98,104; secu-lar power and, 233; suspicion of religion

i n d e x 279

as flip side of, 151. See also belief; freedom

religious violence: national security para-digm and, 39; pretext of defending against, 223

Ricoeur, Paul, 257m rights: in civil law tradition, 61, 246^3;

liberalism and, 72; line between religion and politics and, 27,28,72

rights of God (huqüq Allah): Abu Zayd case decisions and, 49,52,65,66-67; hisba a n d , 60-61,64,65,66-67,68; Shari'a court jurisdiction and, 47-48

rights of servants, 61 Roosevelt, Franklin D., 221 rule of law: coercion and, 125-26; elements

of, 73,109; in emergency state, 37,38; indeterminacies in, 183; Islamist lawyers and, 189,215, 217; limits inhering in, 219; paradoxical authority of, 34-35,107-13; particularist narratives of, 218-19; per-sonal status courts and, 111-12; political theology and, 222; public order and, 30, 38-39,73,98,101, 217-19, 223; reforms of 1897 and, 990; secular power and, 33-34.38,39.106; Shari'a under, 35-36, in— 12,142-49,152-54,183; spaces of excep-tion within, H2,142,143, 144,153,183-84; suspicion fostered by, 35,112,113-17, 119-22,130,142,159. See also l a w

sadaqa (charity), 60,66, 246^7 Sadat, Anwar A1-: assassination of, 82,199;

constitutional powers used by, 200; de-cree of 1979 reforming personal status law, 83,145, 200; law of 1980 on vagrants and suspects, 195

salafayya movement, 256n29 salafis. 268n4 satr Allah (concealment of God), 61,62,

63-64; Fatwa Council and, 86-87,91 Schacht, Joseph, 162-63 Scheuerman, William, 221-22, 26on22 Schmitt, Carl, 142, 222 scientific authority, 14 Scott, David, 28 secrecy: in Fatwa Council of Al-Azhar, 84-

92; in personal status courts, 77-79,81-82,91,100,248nio; Shari'a court reforms of 1897 and, 99,100; shift of 1970s toward,

82-84,91-92. See also privacy; public/ private distinction

the secular: anxiety associated with, 17; secularism and, 2

secularism: blurring religion and politics, 33, 71, 227; disquieting potentialities in, 8; as form of power, 1,2,37-38 (see also secular power); gap between political aspirations and attitudes of, 26-27, 233; indeterminacy of, 26-27,32> 7 1 . 7 2 ; in-terest in question of, during 1990s, 21; modernity and, 7,71,72; paradoxes of, 1-2,4,7,40-41; political theology as critique of, 222; politicization of religion and, 33,41,185; as questioning power, 33,34,105-6,107,159,186,227; the secu-lar and, 2; sovereign power and, 26, 27, 72; Western vs. non-Western, 122. See also active principle of secularism; problem-space of secularism

secular norms, 24,25-27; power and, 34; problem-space and, 29; questioning of, 33,225-26. See also modern norms

secular power, 23-27,184-87; future Egyptian society and, 235; future of Western demo-cratic states and, 223; hisba and, 23,24, 25,30,32,101-5, 147,153; indetermi-nacy of, 71,73-74,97-98,100, 101-6, 142; Islamist lawyers' engagement of, 39, 189; public order and, 73,74,97,101; public/private distinction and, 72; rule of law and, 33-34,38,39,106; September 11 and issues of, 37,40; sovereign excep-tion and, 39,40; state monopoly on poli-tics and, 234; state sovereignty and, 31, 34,104, 223,230, 234. See also Egyptian state as secular or religious

security: administrative detention and, 194; in liberal political thought, 3; state ap-paratus of, ix, x; state sovereignty and, 32; in text of emergency law, 196,197. See also national security

self: authority and, 126-27,180; care of, 36, 179-82,184; creativity and, 168-69; cul-tivated in classical elaborations of hisba, 20; cultivated in Fatwa Council, 177,179, 181; modernist notion of, 14,15,168; personal status courts and, 113; suspi-cion expressed by the law and, 256n27

Sennett, Richard, 127

280 i n d e x

September II, 2001, attacks, 17,37, 40 Shaham, Ron, 2611137 Shari'a: Abu Zayd case and, 18,20,43,45-

47.59.7i; a s discursive tradition, 44; Egyptian modernizing project and, 42-43,99,109; Fatwa Council of Al-Azhar and, 4-5,40,120,170; in Fatwa Council vs. personal status courts, 34,36,40,112, 123,127-28; fertile space for interpre-tation of, 12; hisba in, 20,60-64; Islamist lawyers' movement and, 21; Jews and Christians under, 94,96; legal transfor-mations in, 53-59,64-65, 67-68, 245037; liberalized, 23,30,70-71,74,75,91-92, 99,102,184; personal status courts and, 4-5,76,120; personal status law reform of 2000 and, 156-57; public order and, 92, 94.102; rule of law and, 35-36,111-12, 142-49,152-54,183; as source of law, in Egyptian constitution, 2,4,59,82-83, 237m, 249ni6,249ni9; women's rights and,155

Shari'a courts: abolished in 1955,53; ab-sorbed into personal status division, 48, 53.54.76; actual legal opponent required in, 55; fatwas and, 110-11,125-26; pub-licity requirement in, 131-32; reforms of 1897,98-100, i n , 157-58,255ni8

Sheikh al-Azhar, 111 sheikhs, 84. See also Fatwa Council of Al-

Azhar Mosque; fatwas; muftis silmayya (peacefulness), 232 simulation of emergency powers, 194,199-202 Singerman, Diane, 26in35 social life and state regulatory capacity,

31-32 social reform: objectification of Islam and,

11,13,17; public order and, 95 Sonbol, Amira El-Azhary, 158 South Africa, 5-6,7 sovereign exception, 32,37,38,39,40;

Agamben on, 142-43. See also executive powers

sovereign power: active principle of secu-larism and, 97,102; domain of intimacy and, 101,159; hisba and, 31,74,105,145-48,152,154; proliferation of law and, 145,183-84; religious authority and, 36; secularism as expression of, 26-27,72; spaces of exception and, 142. See also state power; state sovereignty

sovereignty, bare, 231, 234, 268n6 state-Islamization, 82,83 state of emergency. See Egyptian state of

emergency; emergency states state power: family and, 157-59; September

11, 2001, attacks and, 37-38. See also sovereign power

State Security courts, 196-99, 205 state sovereignty, 3,31-32; family and, 101;

in future of Egypt, 235; governmentality and, 142-43; line between religion and politics and, 226-27; vs. popular sover-eignty, 230-31; problematic of, 32,144; problem-space of secularism and, 30, 105,142,159, 226; public order and, 31-32,95-96,97,100-101,218,223; secular power and, 31,34,104, 223,230,234. See also modern state; regulatory capacities of state; sovereign power

Sullivan, Winnifred, 149,153 Sumic-Riha, Jelica, 108 support payments for wives, 119 Supreme Constitutional Court (SCC), 82-

83,132, 249nig; military courts and, 199; Press Law and, 201

suspect, under emergency law, 195-96 suspicion: changing conceptions of the self

and, 256M7; of claims to power, 126-27; enactment of justice and, 137; general prosecutor as embodiment of, 135,136, 185; hisba and, 36,146, 147-48,149, 152-54,181,184; indeterminacy of secular decision and, 73-74,106; lacking in the Fatwa Council, 176,177,183; looping effect of law and, 138-41, 183; as natural outcome of law's character, 124; in per-sonal status courts, 34,35,119,120,121, 183; police in nineteenth century and, 144-45; problem-space of secularism and, 142; publicity and, 132; recent origin of, in legal systems, 125; about religious claims, 33,122,150,151; rule of law and, 35, 112,113-17,119-22,130,142,159; Shari'a and, 36,40,142,143-44,184, 259020. See also anxiety; vigilance against abuses of power

Switzerland, ban on minarets in, 103 tajassus (spying), 61,62,63 Tantawi, Sheikh Sayyid, 111, 25on25 taqlid (imitation), 163,164-65

i n d e x 281

tarbawayya (ethical cultivation), 172,180, 182

tazkiyya, 54,56,57, 245n40 time, 167-70; modernist notion of, 14,15,

168,169,181 tolerance, 3,26, 28,103-4, 2 t8,226, 233 torture, 22,199,201, 202,205, 208, 221,

265m 2 tradition: care of the self and, 180, 182;

creativity and, 166-67, 168-69; critiqued in social theory, 15; discursive, 43-45; Eickelman and Piscatori on, 11-15; gap between Islamic doctrine and practice and, 162-63; invented, 12,44, 238ni3; Weberian notion of, 14, 238ni3. See also civil law tradition

umma (Islamic community), 49,61,65 United States: current problems of, 6; emer-

gency powers in, 221-22; emergency state of, 37; judicial determination of religious belief in, 149-50,26on27,26on28, 26in29; languages of racial justice in, 215; national security paradigm in, x; near paranoia toward Muslims in, 151; perpetuation of Christian Protestant sensibilities in, 98; prison population in, 220-21; problem-space of secularism in, 227; shift of 1970s toward secrecy and intimacy, 83-84

Universal Declaration of Human Rights, 101,216

veil, 8,150-51. See also head scarf vigilance against abuses of power: establish-

ment of police and, 145; Foucault on power resulting from, 179; hisba proce-dures and, 147,153; looping effects and, 141,143; religious freedom and, 151; space of exception and, 112; suspicion associated with, 35, 126-27,131. 142, 183; women's rights and, 157. See also suspicion

violence: of Egyptian emergency state, 38; by Egyptian government, 201, 202,205, 210, a n ; exceptional courts and, 198,

199; by Islamist groups, and lawyers' defense, an ; Muslim Brotherhood's re-nunciation of, 3; political theology and, 227; protests of 2011 and, 232; question-ing the proper uses of, 3,30; sovereign exception and, 37; wives' obedience enforced by, 158. See also religious violence; torture

virtues: cultivated by Shari'a, 144; hisba and, 146; liberalism and, 72; line between religion and politics and, 28,72; of mufti, 178-79; transformations in Shari'a and, 59. See also moral inquiry and criticism

waqf. S e e awqäf war on terror, x, 222, 223, 232. See also

national security paradigm Watson, Alan, 43 Weberian notion of tradition, 14, 238M3 Western democratic states: emergency

powers used by, 221-22; future of Egypt and, 224-25; national security paradigm in, 223; politicization of religion in, 184-85; secular future of, ix-x. See also France; United States

Western financial privilege in Egypt, 53-54 Western legal concepts and institutions,

42; interpretation in, 26309; publicity requirement in, 132. See also civil law tradition; French law

Whitman, James Q., 120-21,124 witnessing, 54-55,56, 245n40, 247^3; in

divorce cases, 116-17,25407; hisba as form of, 60,66-67; >n medieval France, 125; in personal status cases, 57

Wittgenstein, Ludwig, 24 women: Islamic study groups of, 8. See also

gender issues Yemen, prosecution in, 257117 Zaynab,206-7, 2 0 9 Zayät, Montasar AI-, 191-92, 208-9, 210-11 Zionism, 30 Zorza, Richard, 258n8 zulm,211-14, 215