Sunday,17 December, 2017
Current issue | Issue 1207, (24 - 30 July 2014)
Sunday,17 December, 2017
Issue 1207, (24 - 30 July 2014)

Ahram Weekly

Ottoman progenitors of Egyptian law

Reem Meshal, Shariah and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo,‫Cairo ‬: AUC Press, 2014

Reviewed by Gamal Nkrumah

Ottoman progenitors of Egyptian law
Ottoman progenitors of Egyptian law
Al-Ahram Weekly

Enough books have been written in English, let alone in Arabic, about Islamic Shariah Law to fill several libraries. However, this is a book not about Shariah Law per se, that is as an implicit thesis in general. It is specifically tailored to the Egyptian context.

Reem Meshal is professor of Islamic Studies at Louisiana University. Her book is insightful, a trifle too academic, and certainly not an easy read.

Yet, as the reader leafs through its pages it becomes somewhat easier in a curious fashion to understand the paradoxes of the contemporary Egyptian legal system from its historical inception. Meshal raw material are the Ottoman sijils, or the complete record of a judge’s or court’s records.

And, in a curious sort of way, she is at her strongest when expressing views on contemporary controversies in Egypt with regards to Shariah from a historical perspective. Why is amputation not legal under Egyptian law and yet the traditional Shariah prescribes it for certain crimes such as theft? Why is flogging banned in Egypt? Yet, certain predominantly Muslim countries have legalized such punishments under the pretext of Shariah law.

First, and from the outset, the distinction between Fiqh, or Islamic jurisprudence, and Shariah or Islamic law, needs to be made abundantly clear. Otherwise, concepts treated in this work would tend to be confused.

Shariah, is simultaneously a religiously-derived moral code and a tradition of legislation. The standard criticism of Shariah Law is that it is medieval and not suitable to contemporary lifestyles. Meshal demonstrates that, at least in Egypt from Ottoman times, it was flexible and not rigid. Accordingly, Shariah is not a problematic law. This history matters.

The standard criticism of Shariah is that it is a medieval law not suitable to contemporary lifestyles. And, that it is rigid an inflexible. Not so, Meshal insists.

Drawing on Ottoman archives, the author demonstrates how local custom, as a source of authority, gave way to more modern ways of thinking and thereby paving the way for the contemporary Egyptian legal system long before the Napoleonic Code introduced centuries later after increased contact with the West and the colonization of Egypt first by the French and then by the British.

This seminal work is also a guidebook designed to navigate the Egyptian legal system from a historical perspective. The jurisprudence of Ottoman Egypt is key to Meshal’s analysis. The author pores over the sijils, or official documents, of sixteenth and seventeenth century Ottoman Egypt.

And, she deduces that the origins of the contemporary Egyptian legal system dates back to that particular historical period. Of course, there is the Napoleonic Code, introduced by the French which has tremendously influenced contemporary Egyptian law, but the manner in which Shariah is perceived or rather applied dates to the Ottoman period.

Politics played a prerequisite part in the development of the practice Shariah law in Egypt. The author makes a distinction between siyasa (politics) and religious law. Politics changed the legal system in curiously perceptible ways. “The Ottoman Caliphate collapsed the barrier between worldly siyasa and religious law. It would not be incorrect to speak of an assimilation between siyasa and shariah, and of the Islamization of qanun. However, the implied subordination of qanun to fiqh in this schematic is grossly misleading. A measure of alignment between Islamic jurisprudence and state legislation took place, but on the latter’s terms.

There was a dialectical shift in the relationship between fiqh and siyasa that placed both on a the same ontological footing,” the author contends.

To begin with, it was rather difficult to distill a comprehensive overview of formal and informal Ottoman laws that were in operation at the time. But, matters became clearer in time. From the Middle Ages many Islamic scholars favoured reason and logic to analogy and there were several competing Sunni Muslim schools of Islamic jurisprudence. The author dwells at length on the tricky subject of Shariah family law, a topic that crops up throughout her work.

Nevertheless, there is a perceptible ambiguity when it comes to personal freedoms and particularly when it comes to women and religious minorities such as Egypt’s Coptic Christian minority who are subject to Shariah laws.

Article Two of the latest constitution promulgated recently this year and pertaining mainly to personal status law. There is no such thing as Christian jurisprudence in the Islamic sense of the word and therefore technically Christians in Egypt are obliged to abide by Islamic Shariah law as it is unequivocally stated in the Egyptian Constitution as the primary source of legislation in Egyptian law. In matters of inheritance, for instance, the ruling that a man inherits twice as much as his sister applies as much to Christians as to Muslims.

However, Christians in Egypt are not subject marital jurisprudence, for instance, or Islamic theological obligations except for minor observations such as refraining from consuming alcohol in public during the Muslim Holy Fasting Month of Ramada, for example. Neither are Christians obliged to pay zakat, or Muslim alms-giving, or the Islamic dress code, which in any case is not enforced on Muslim women for instance.  

In much the same vein, Al-Azhar, the country’s main Sunni Muslim religious institution is the granted the special status under the New Constitution as the “exclusive reference”.

Other strands of Islam are not regarded as capable of overruling Al-Azhar in contemporary Egypt. But under the Ottomans Al-Azhar had not yet attained this august status. Nor did the Ottomans had a Western-style written constitution in the sixteenth and seventeenth centuries. Back then, Egypt was largely a country of peasant villages and small provincial towns.

Inevitably, officialdom has finally caught up with the contemporary application of Shariah Law. The Ottomans, as most modern Turks, espouse the Hanafi Sunni school of Islamic religious jurisprudence. Even so, the Ottomans acknowledged the sanctity of all for mainstream Muslim schools of Islamic jurisprudence or madhaheb, plural of madhab. The Empire in Historiography is an intriguing sub-chapter. The author, an academician compares and contrasts studies of the scholars known as the “Arab Ottomanists” who by and large viewed the Ottoman Empire in the late sixteenth and early seventeenth centuries as in a state of decline. And, the notion of nasiha, or advice to the ruler comes into play.

The old argument between tradition and reason came to the fore in Ottoman Egypt and unfolded in the sixteenth and seventeenth centuries. Political stability was conducive to change. The relative tranquility of the period played a part, too. The mayhem, massacre and misery of pre-Ottoman Mamluk Egypt which had rolled back and forth before the Ottoman Turks instilled law and order also helped. And, so did the economic boom. “Increasingly the practice of co-opting local elites is seen as a cornerstone of Ottoman statecraft,” she explains.

The verisimilitude of the Hanafi, Shafie, Maliki and Hanbali are a matter of scholarly conjecture. The average, or ordinary Muslim, rarely makes out the difference between these schools of thought. Few Egyptians at the time were literate enough to read and interpret the holy texts let alone Shariah laws without the need for intermediaries who were invariably qadis, or judges, and religious scholars.

The legitimacy of Ottoman authority in Egypt was entrenched. This Ottoman power eventually came to flex its muscles not just in politics, but also in religious and legal affairs. There were other significant developments in Ottoman Egypt, notably the Siyasat-i Ilahi “an innovative synthesis of juristic, philosophical, and Sufi thought concocted by state bureaucrats and jurists, redefined the Ottoman Caliphate in the sixteenth century”.

The contemporary Egyptian legal system is to some extent the nemesis of the Ottoman legal system, and yet in a curious fashion it was also the child of it. It is crucial at this point to stress that these changes under the Ottoman rulers of Egypt in the sixteenth and seventeenth centuries, the period the author focuses upon, predates the modernization programmes of Mohamed Ali (1796-1849, the self-declared Khedive of Egypt and founder of the dynasty that ruled Egypt and Sudan until the Egyptian Revolution of 1952 that ushered in a republican form of government.

By all historical accounts most of Mohamed Ali’s subjects found his presence daunting. And, yet he is widely acknowledged as the ruler who transformed Egypt into a modern state. Yet the author still insists on the paramount importance of the Ottoman period. “While there is no denying the impact of western modernity on the cognitive, structural, and cultural development of Muslim society from the eighteenth century on, the amplification of Ottoman trends in the present is equally undeniable. Ottoman history as as much an engine of the particular configuration of elements comprising ‘Muslim political modernity’ as the encounter with the West was”.

The latest lesson is that Egypt needs to extend the reach of civil law. Until initiatives like those initiated under the Ottomans set the modernity ball rolling. “One often reads that Islam’s crisis of modernity speaks of an acute need for a reformation akin to Christianity’s. But, as the reader may have already surmised, this authour would argue that Islam has already had one 9and many since, mediated through the predations of colonialism), and that its reformation plays no small part in its modern crisis of authority,” Meshal contends.

take hold, the origins of Shariah law as practiced in Egypt today harks back to the Ottoman era when the state had retreated from its traditional hegemonic legal model.”The reposing of legislative authority in the hands of the Anatolian judiciary, or more precisely its corporative Hanafi bureaucrats, did not herald the abandonment of Ottoman legal authority,” the author observes.We often underestimate the tremendous impact the Ottoman Turks had on the cultural and religious orientation of Egypt. For centuries, Turks were the ruling class in Egypt.

And, contemporary Egyptians inherited much of the Ottoman Turkish cultural legacy. Beyond the superficial trappings of modernity the school system is still far from universal and teaching through rote learning, the ancient memorization technique of the traditional religious kuttab schools based on repetition and learning by heart and lacking in intellectual stimulation, is not uncommon. It is against this backdrop that the legal system must be judged.

Moreover, Egypt contrary to received wisdom, was never quite the homogeneous nation many historians and academicians claim. Egypt was always at the crossroads of competing cultures and the composition of the Egyptian population was extremely diverse especially among the influential upper echelons of society. “One need not diminish the importance or prestige of Egypt’s legal institutions to question the presumed ethnic homogeneity or religious orthodoxy of its premier city. Cairo hosted various Arabic-speaking, Turkic, Circassian, Mongol, and Abyssinian troops, political elites, merchants, slaves, and scholars from diverse backgrounds. The numbers of foreign Muslims equaled and at times surpassed the of Coptic Christians, Egypt’s large religious minority. Moreover, they played key roles in the political, military and judicial governance of the state,” the author extrapolates.

Looking for loopholes in the law, allowances were always made to accommodate the various peoples who settled in the country and brought their own cultural heritages with them. Then there was the eternal divide of the Egyptians themselves which dates to the days of the ancient Egyptians, the “Two Lands” so to speak.

To this day, this divide endure. “One might assume that the wider Egyptian population was equally heterogeneous: northerners, who straddled the ethnic, religious, geographic, and civilized fault lines of the Mediterranean peoples, and southerners (Saidis) who straddled the fault lines of the Nile Basin peoples,” Meshal notes.

How does this truism influence the contemporary Egyptian legal system? Egypt is in a state of transition, but its transformations remain largely unfinished. The remote Upper Egyptian backwaters have their own local customary laws, derived to a certain extent from Shariah, but incorporating earlier customary influences.

And, the author raises a critical question, rather a historical observation of key significance to the modern setting of the Egyptian legal system, especially as practiced in the metropolises of Cairo and Alexandria and more generally in the North, the Nile Delta.

“Over the course of the sixteenth century, customary law increasingly confronted a breed of orthodoxy that cleaved one’s essential personhood from one’s communal identity,” Meshal notes. Moreover, and even more poignant is that legal practitioners mitigated, altered and reconstituted jurisprudence to suit contemporary standards of law. “The task falling to the judicial staff of the Shariah courts was the arbitration of points of conflict between the qanun, custom, and Islamic law as they affected the individual,” she elaborates further.

Unfortunately, in numerous Muslim and non-Muslim nations, Shariah law’s reputation has taken a beating. Its practical application in places like Sudan or more recently the areas under the control of the Islamic State of Iraq and the Levant (ISIL) has scared off religious minorities and secularist Muslims alike.

Egypt escaped the fate of other predominantly Muslim nations insofar as the reformers of the legal system were hard at work much earlier than in other nations.

Their opponents are right to fret. Law and politics have always mixed and not only in contemporary times. “The archive defines memory institutionally, it is not just a data bank, but a system of political legitimation and a blueprint for the construction of political identity,” the author states categorically.

Yet, Meshal concedes that there are serious flaws. “The history of archiving is yet to be written in full, and while the archivist has received a limited amount of attention in Ottoman research, one aspect of the early modern archive  has been ignored: its role in generating mass culture through the mass production of documents. The enormous data bank that is the Ottoman archive creates a paper trail for the lives of countless, faceless masses, providing the foundations for a subaltern history rarely glimpsed in pre-modern historical sources,” she notes.

The author describes these Ottoman archives as providing the “textual footprints” of the transition from Shariah law practiced in a communal setting to the contemporary individualism and proto-citizenship. As the study of Ottoman law and society expanded, it drew a vivid portrait of the Shariah court as a unified legal  venue for Muslim and Dhimmi (non-Muslim subjects of the Ottoman Empire). “Christian and Jewish men sometimes resorted to Islamic courts to circumvent the obligations of traditional marriage contracts,” she notes.

The anomaly is that in contemporary Egypt inheritance laws follows those stipulated by the Shariah. And, Coptic Christians and other religious minorities are subject to inheritance laws as set by the Shariah.

“The documented life is an altered life. It is altered through the textual manipulation of identity on the one hand and through the text’s mediation between the world and the individual on the other. Both redraw the perimeters of essential personhood and of political identity, to produce an early modern individual more detached from local custom than at any time in recorded history. The archive territorialized Islamic law, mediated its transmission from private to public spaces, and negotiated its conversion into a Muslim civil code for all subjects, thereby remapping the relationship between state and society,” Meshal expounds.

The terms of reference for verdicts were often murky, but somehow the judges concerned managed to dress it up in a religiously acceptable fashion. “It should be noted that the Ottoman understanding of the ‘rights of God and the attempt to manufacture a legal orthodoxy around them does not imply a static Ottoman ideal  Indeed, the chronicles and sijils reveal that the moralizing tone of the state and its jurists repeatedly defined and redefined the bounds of Muslim morality over the course of the sixteenth and early seventeenth centuries. In some cases, this implies a narrowing of the definition of what was permissible and in others a relaxation. In all cases however it reflects the orthodoxy of the day,” the author extrapolates.

Nevertheless, it was not all smooth sailing as far as the application of Shariah law in Egypt is concerned. “Quranic hudud or fixed penalties were gradually transformed from a system of corporal punishment (such as flogging or amputation) into a system of fines and imprisonment,” the author stresses.

“Even with the shrinking gap between temporal and spiritual authority, the tendency to sweep more and more moral offenses under the discretionary authority of the state (ta’zir), and lowering the proof bar on sexual offenses (zina), neither the Ottoman Caliphate nor its state jurists could fully overcome centuries of judicial theory affirming a distinction between the ‘rights of God’ and the ‘rights of humans’, and between sins and crime,” Meshal stipulates.

And, this unfortunately has complicated many spheres of legal practice in Egypt to this day. It was the heritage of previous ages, particularly the Ottoman period, that sustained the influence of Shariah and ensured that personal freedoms to some extent were not permitted to wilt or narrow. Yet, by the same token, just as in the Ottoman Empire’s first prototype of a written constitution in 1879, successive Egyptian constitutions including the last one promulgated and ratified in 2014, does stipulate that Islam is the religion of the state and that the principles of Islamic Shariah are the main source of legislation.

The wording is rather vague, but it reflects the process instigated by the Ottomans of yesteryear. “The expansion of the state at the expense of religious institutions plays a pivotal role in this modern history. The retreat of Shariah and religion is met by the advance of custom which, in combination with the influence of European legal codes, is endowed with a new force and vitality,” the author elaborates.

Progressively, the Egyptian legal system became less dysfunctional. The cruel practices of the cut-throat centuries of Mamluk rule devolved under Ottoman rule into more humane laws. “The debate over what constituted correct conduct preoccupied the Sunni heartland no less than the so-called peripheries of Islam.

Furthermore under pressures of Ottoman religious renewal the increasing authority of written documents and the theory of the legists regulating custom the bounds of Muslim morality became ever more rigid. This orthodoxy was pursued through multiple strategies. Foremost among them was a qanun marking the onset of civil marriage in Islamic legal practice,” the author elaborates.

Under the Ottomans, the political landscape was redesigned and arbiters of disputes and administrators of laws attempted to abide by rules that were increasingly recognised by judicial courts. The judiciary no longer depended on popular justice and customary laws to resolve disputes.

Popular courts staffed by respected elders or religious scholars or qadis (judges) were no longer in vogue by the twentieth century. Interpretations of Shariah laws were more or less unified by that time. And, more crucially individual interventions by customary justice actors were outlawed.

Personal law is precisely where the judges and courts started playing politics. “The registration of marriage in the Shariah court, a compulsory policy by 1521, turned what had once been an informal contract, signed in the presence of two witnesses, into a formal civil union,” the author explains. And the courts began to accept the symbolic role the conventions of the time accorded it.

Marriage and the rules governing family law are a pertinent expample. “This standardized approach to the rules governing marriage and divorce in which marriage was so systematized that the influence of local custom and communal practices became negligible,” the author notes. 

The Ottomans created a legal system that contemporary Egyptians have inherited, admittedly not piecemeal. “State jurists were now partners in the marriage contract, its principal witnesses and primary custodians,” the author contends.

Mediators of disputes in Egypt are faced with unique paradoxes. “The abolition of the Shariah as a unified legal system, and its replacement with a ‘mixed’ legal system, where Muslim family law is governed by a truncated Hanafi code and Coptic family law is determined by the sole authority of the Church, has rendered the ideal of a civil code for all citizens well-nigh impossible to achieve,” Meshal concludes.

No adulterer is murdered by stoning in Egypt as it often happens in other countries that claim to apply Shariah law. No women are lashed for being dressed immodestly.

Yet, as the author aptly rounds up, “Muslims [in Egypt] are subject to codified, ossified personal status laws that hardly resemble the laws to which their ancestors once appealed”. 

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