A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt

Samy A Ayoub

doi:10.1017/jlr.2021.79

Abstract

AbstractʿAbd al-Razzāq al-Sanhūrī (d. 1971), the father of the Egyptian legal code, theorized a relationship between dīn (religion) and dawla (state) that was key to his project. In this relationship, al-Sanhūrī posited a delineation between the spheres of dīn and dawla that allowed him to map these categories onto the existing distinction between matters of ʿibādāt (acts of worship) and muʾāmalāt (transactions) in Islamic law (fiqh). I propose that Islamic jurisprudential distinctions between ʿibādāt and muʿāmalāt—for al-Sanhūrī—was the ideal medium to maintain and police the borderlines between religion and state in the postcolonial Egyptian state. Al-Sanhūrī's objective was to keep the domain of dīn outside of state sanction and to facilitate a transition whereby the state's legal institutions assumed exclusive lawmaking powers based on its own independent legal reasoning in Islamic law (ijtihād). I argue that al-Sanhūrī was a committed comparatist, not a reformer of Islamic law. Al-Sanhūrī's legal project should be viewed as a faithful commitment to French comparative law as a method of legal inquiry and a reflection of his nationalist agenda of creating a unified legal order that cannot exist without relying upon indigenous forms of law and culture. Al-Sanhūrī saw Khedival legal pluralism as an obstacle for national sovereignty. As a result of the institutional and legal readjustments from the 1920s through 1950s in Egypt, al-Sanhūrī did not see a future for Islamic law in the emerging legal state apparatus outside of civil law strictures and insisted that Islamic courts and religious tribunals for Jews and Christians must be subsumed under nationalized secular state courts.

Highlights

AbstractAbd al-Razzāq al-Sanhūrī (d. 1971), the father of the Egyptian legal code, theorized a relationship between dīn and dawla that was key to his project
As a result of the institutional and legal readjustments from the 1920s through 1950s in Egypt, al-Sanhūrī did not see a future for Islamic law in the emerging legal state apparatus outside of civil law strictures and insisted that Islamic courts and religious tribunals for Jews and Christians must be subsumed under nationalized secular state courts
A common problem with these existing treatments of modern Egyptian legal history is the assumption that Islamic law became a formative source of legislation only upon the ratification of the second article in the 1971 Egyptian constitution, which states that “principles of Islamic law are the prime source of legislation.”[1]. This so-called Sharīa Article in the 1971 constitution appears to be viewed, especially in intra-Egyptian polemics, as a watershed moment in which Islamic law isinscribed in the Egyptian legal and constitutional order

Summary

11 Al-Dustūr

Talīqātalā mawādih bi al-ʿamāl al-taḥḍīrīyya wa al-munāqashāt al-barlamānīyya [The Constitution: Commentaries on its articles, meeting minutes of its drafters, and parliamentary discussions], 4 vols. (Cairo: Maṭbaat Miṣr, 1940), 1:2–7. He theorized a relationship between the modern Egyptian state and Islamic law, where the matters of dīn andībādāt are the exclusive domain of Muslim theologians He stressed that there is no room for the state to encroach on these matters.[65] Al-Sanhūrī’s recalibrations of the domains of dīn and dawla were construed in the secondary literature as an indication of al-Sanhūrī’s secularism.[66] Amr Shalakany, for example, argued: “Sanhuri asserts already in the avant propos the fundamental distinction between ‘sacred’ and ‘temporal’ aspects of Islam, and unequivocally locates his study of Islamic law in the realm of the latter.”[67] He claimed: “Both Sanhuri and Nasser were secularists: both were committed to a fundamental distinction between the religious and the temporal, and both awarded exclusivity to the temporal in the public sphere.”[68] I am not convinced by Shalakany’s collapse of the obvious difference between al-Sanhūrī and Nasser. Al-Sanhūrī’s goal from this notion was to develop a theory of political legitimacy that goes beyond the fiqh tradition, which was limited in its scope to the mere legitimate exercise of power.[69]

A Restatement

Conclusion