Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt 9780226010700

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Questioning Secularism

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Questioning Secularism Islam, Sovereignty, and the Rule of Law in Modern Egypt

hussein ali agrama

the university of chicago press    chicago and london

hussein ali agrama is assistant professor of anthropology at the University of Chicago. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2012 by The University of Chicago All rights reserved. Published 2012. Printed in the United States of America 21  20  19  18  17  16  15  14  13  12    1  2  3  4  5 isbn-13: 978-0-226-01068-7 (cloth) isbn-13: 978-0-226-01069-4 (paper) isbn-13: 978-0-226-01070-0 (e-book) isbn-10: 0-226-01068-6 (cloth) isbn-10: 0-226-01069-4 (paper) isbn-10: 0-226-01070-8 (e-book) Library of Congress Cataloging-in-Publication Data Agrama, Hussein Ali.   Questioning secularism : Islam, sovereignty, and the rule of law in modern Egypt / Hussein Ali Agrama.     p. — (Chicago studies in practices of meaning)   isbn 978-0-226-01068-7 (cloth : alkaline paper)   isbn 0-226-01068-6 (cloth : alkaline paper)   isbn 978-0-226-01069-4 (pbk. : alkaline paper)   isbn 0-226-01069-4 (pbk. : alkaline paper)   isbn 978-0-226-01070-0 (e-book)   isbn 0-226-01070-8 (e-book)  1. Rule of law—Egypt.  2. Islamic law—Egypt.  3. Islam and state—Egypt.  4. Fatwas—Egypt.  5. Abu Zayd, Nasr Hamid— Trials, litigation, etc.  I. Title.  II. Series: Chicago studies in practices of meaning.   krm2020.a93 2012   340.5'90962— dc23 2012003654

a This paper meets the requirements of ansi/niso z39.48-1992 (Permanence of Paper).

for my parents ali agrama nadia elhamy

Contents Preface  ix Introduction: A Secular or a Religious State?  1 chapter 1.  The Legalization of Hisba in the Case of Nasr Abu Zayd  42 chapter 2.  The Indeterminacies of Secular Power: Sovereignty, Public Order, and Family  69 chapter 3. A Paradox of Islamic Authority in Modern Egypt  107 chapter 4.  Law’s Suspicion  130 chapter 5. What Is a Fatwa?: Authority, Tradition, and the Care of the Self  160 chapter 6. Islamist Lawyers in the Egyptian Emergency State: A Different Language of Justice?  188 Epilogue  224 Notes  237 Index  271

Preface

I

 finished the manuscript of this book in the thrall of victory. On Febru ary 11, 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 US Customs and Immigration. When the immigration officer found out he was Egyptian, 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 anthropology, 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. And yet this was where some of my celebratory 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. And 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 normalized 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



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 animated 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 — neither 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 terror, 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 define 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 conducts 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 attenuates 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

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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 necessarily brief, cannot convey my gratitude for the enormous support given me throughout this project. Here, however, I must pause to express my deepest 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 engagements and comments during crucial phases of this project. In particular, 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 Hirschkind 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 positions. I am also thankful for all the discussions with fellow faculty in the

xii

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anthropology department, on the way to and from campus, in the corridors and stairways of Haskell Hall, and during Monday lunches or dinners. This includes Jessica Cattelino, Julie Chu, Shannon Dawdy, Judy Farquhar, Kesha Fikes, Ray Fogelson, Susan Gal, John Kelly, Joe Masco, William Mazzarella, Stephan Palmie, François Richard, Danilyn Rutherford, and Michael Silverstein. Although these were often chance discussions, 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 discerning 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, temporality, 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 organized 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 colleagues who have provided me with their support and their intellectual generosity over the years: Hossam Bahgat, Richard Baxtrom, Roger Begrich, 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 Nikolov, Sylvain Perdigon, Hanan Sabea, Adam Sabra, Atef Said, Don 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 shı¯sha evenings in Cairo where we discussed everything under the Egyptian sun. To Raghda Hafez: your laughter kept me sane throughout those longest 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 Nelson 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 Foundation 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 possible 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 cannot name them here—who 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 ongoing 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 Ali 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.

introduction

A Secular or a Religious State?

T

here 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 understandings 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. On the other, it throws into question those secular conceptions of human agency upon which such a transformative capacity presumably rests. As a result, much of the literature on secularism exhibits a self-confounding tendency, where the commitments that animate it and the critiques that it conducts undermine each other — two 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 intrinsic 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. One 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. As part of those



introduction

explorations, he draws an important distinction, between the secular as a domain of historically constituted and variably related behaviors, sensibilities, and ways of knowing, and secularism as a doctrine and political arrangement within the modern state. Although 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 registers 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 self-refuting—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 nevertheless turning Asad’s question around, to ask: how does secularism work to support or undermine the concepts, sensibilities, assumptions, and behaviors 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. To 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. How then does secularism, as a form of power, work? And what work does it do upon the behaviors, attitudes, and ways of knowing that constitute our ways of life? 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. As 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. As a result, many fundamental provisions of the Shari‘a are patently ignored and unimplemented. And while its personal status law—which deals with

introduction



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 uncodified Islamic religious principles for litigation, which have allowed for apostasy and censorship trials against public intellectuals. Some religious institutions, like Al-Azhar 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. At the same time however, it allowed brotherhood members to run and win in parliamentary elections as independent 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 Muslim world, which is, as we know, under tremendous transformative pressure. 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 violence, and the limits of freedom of religion and expression. All 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, including 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 relationships between religion and politics in Egypt. It is rather to question the very question. Not to say, however, that it is somehow wrong, false, inappropriate, or fictional. Rather, the goal is to elicit a different understanding of this question, its presuppositions, the forms it takes, the affects that infuse it, its conditions of felicity and its resilient force—an understanding



introduction

that I hope will arise in the course of this study. An 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. The 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 exercise of secular power, and at the center of its paradoxical quality. The ethnography revolves around a comparison of the Egyptian personal status courts and the Fatwa Council of Al-Azhar 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 the Shari‘a, even though the Egyptian 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. The 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. Equally busy are the sessions of the Fatwa Council of Al-Azhar. Fatwas are religious responses issued by learned sheikhs to questions asked of them about certain aspects or affairs of life; Al-Azhar is one of the oldest and most highly respected centers of Islamic authority in the world. Seeking fatwas is a popular practice in Egypt, and the Fatwa Council of Al-Azhar is a central fatwa-giving institution, always full of questioners from all walks of life. The 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 because 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. As a result, the crucial practices through which the fatwa acquires its specific authority remain unaddressed. In giving 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. Both the personal status courts and the Fatwa Council of Al-Azhar base their decisions on the Shari‘a, and both address a similar or at least highly overlapping set of issues. Both arise out of distinctly modern trans-

introduction



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, democratization, and secularization, suffering understandable setbacks along the way, but that its course is still in danger of being reversed or permanently stalled, a mark of incomplete or failed modernity? Might it not be argued 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, prone 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 secularism 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 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 modernity have proven to be complex, vague, shifting, and fraught with unacknowledged 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 incomplete 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. Indeed, even despite its secular-religious ambiguities, it is often seen as the only truly modern state in the Middle East.



introduction

My 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 Africa 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 Africa? Two factors unite Israel and South Africa during apartheid. First, they are— or were— colonial regimes. Second, the colonists are— or were—mostly European. But is being European and colonial enough to qualify them as modern as opposed 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 Africa 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 tremendous — and growing — income 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 And 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 pronounced. Egypt has been involved in a modernizing project since 1800, almost as long as the United States has been in existence. And 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 democracy, while Egypt is not. However, liberal democracy as a criterion for determining a full or failed modernity does not hold up to scrutiny. After 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 Algeria to be a part of France; Algerians, however, were not allowed to vote, while the piedsnoirs could. France was not thought any less modern because of this. Nor

introduction



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, assessed, 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 identified with Western European states, it has never involved adopting the cultures of these states wholesale. The modern project, as Talal Asad notes, “requires not the production of a uniform culture throughout the world, but certain shared modalities of legal-moral behaviour, forms of nationalpolitical structuration, and rhythms of progressive historicity.”7 And it is with some of these shared modalities, forms of structuration, and temporal rhythms that I am concerned about with respect to Egypt. As is clear from all of this, I do not accept the proposition that Egypt is not fully modern. On 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 characteristic of many states considered to be paradigms of liberal secularity, such as France, Germany, and Britain. No doubt Egypt’s peculiarities make it seem vastly different from these paradigmatic states. But my aim here is to show how in its very difference it registers a deeper similarity that should provoke us into thinking about modern secularism differently, and how Islamic 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



introduction

interlocking rhythm, one drummer would strike a seemingly discordant, almost halting beat. But what sounded like a stutter at first was soon realized as part of the rhythm itself, rooted in its foundations, and part of its potential. By 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 understood not as instances of modern reform gone wrong, nor as aberrations from secularism, but as actualizations of potentialities within secularism itself, and integral to its very foundation.

The Theoretical Problem of “Islamism” At the start of this project, I wasn’t interested in the question of secularism. 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 me bewildered. Each of the chapters here represents a stage of this exploration. The 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 conceptual orientations that implicitly guide them. Let me start, then, with my initial motivation. It arose out of an ongoing dissatisfaction with how the social theory literature has typically treated contemporary Islamic religiosity, thought, and activity. A heterogeneous collection of activities revolving around Islam—widespread 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

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preachers, the sales of cassettes and CDs featuring sermons and Qur’anic recitations, and the activities of explicitly political groups like the Muslim Brotherhood—have 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 encountered 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 who 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, the overriding concern that motivates much of this social theorizing is to explain why people today would adopt and why they have adopted such ways of life. That contemporary Islamic religiosity is seen as a problem within social theory is a curious fact. Why are some ways of life, or attempts to live ways of life, seen to be problems for explanation while others are not? 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 Anthony 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 disembedding, the “lifting out” of forms of life, their recombination across time and space, but also the reconstitution of the contexts from which they came . . . economic 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

As illustrated in this passage, social theorists of modernity endeavor to describe a complex reality and to elucidate concomitant experiences

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(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 movement 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 economic 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

As the passage above makes clear, the question of why people today would adopt Islamic ways of life presupposes for its plausibility that modern desires, freedoms, and choices are natural. It is by taking them as natural that an increasing (as opposed to a stable, or decreasing) religiosity can 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. Such presuppositions are fully evident when this religiosity is explained as a reaction against modernity, due to the failures of modernization, dissatisfaction with economic and political circumstances, nostalgia for the past and once stable identities, and attempts to secure power through slogans that play upon these discontents. But these presuppositions persist even with the recognition of contemporary Islamic religiosity as a distinctively 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. The tendency I am concerned with is exemplified 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

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rest upon an approach that claims to question some of the pretenses of modern thought. And 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 oversimplified dichotomization of tradition and modernity” (24) through which such movements are typically understood. They attribute this oversimplification 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 “procedures 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 reformers, “by defending changes as in keeping with the ‘essence’ of Islam,” and “tying reforms to the fundamental responsibility of Muslims to obey God 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 less about what tradition is than its presumably positive uses. And 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

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claims as largely modes of obfuscation and manipulation is confirmed by their discussion of tradition and politics. All 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 interpretations. Hence, any 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 divergence over time and space. As 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 critique, 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. Once the province of a learned few, the traditional authority of Islam came to be fragmented and “democratized” due to widespread education, growing literacy, and mass dissemination 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. How is it possible for an intensified 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 continue 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 “objectification” of Islam. The intensification of critical awareness of debates over correct Islamic practice in various aspects of life eventu-

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ally gives rise to the impression that Islam is an abstract system of rules and precepts that pertain to all aspects of life. The 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 community 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 emerge” within this same community, “inspired by a cohort of young Omanis who had received a secondary or postsecondary school education and . . . began to question what it meant to be Muslim.” E&P quote an Omani schoolteacher who 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 Oman.” 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 system of precepts and rules for all aspects of life had another consequence: it meant that each and every aspect of life would subsequently become subject to assessment and reform in light of these precepts and rules. The objectification of Islam therefore produced a new ambition— comprehensive social reform—to which the claims of tradition were incessantly directed. It is this critical 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 objectification 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 misapprehension of otherwise increasingly evident truths.

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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 question the notions of modernity and tradition as “artificial constructs” in relation 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 affirmation 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. In 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 follow 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 making traditional claims? Such appeals would have conventionally been understood as being of the legal-bureaucratic type and not the traditional type. And when someone appeals to a past scientific authority, is that also an appeal to tradition? Even those philosophers and social theorists who 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.14 The result, then, of E&P’s underlying acceptance of the classical notion of traditional authority is an approach insufficiently attentive to the distinctive 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 systematized in various ways for the purpose of cultivating selves with sensibilities and desires thought appropriate to living a virtuous Muslim life.15 Thus to return to the Omani 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-

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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 temporality through their notion of the objectification 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 modern transformation and values. With this, modernist notions of self, time, and reason are presumed as natural. As a result, contemporary Islamic religiosity can never be more than a distorted perspective on the forces that have given rise to it. And while it is recognized as a distinctively modern phenomenon, it is nevertheless seen to represent peculiarly modern falsehoods. This tendency in the theorizing 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 distinction. Even in its fundamentalist expressions it is a highly rational form of moralPlatonic thinking, divorced from ultimately segmentary-ethnic-kin-local ties. . . . Militants elevate this into a utopian scheme through a politicized modernity that accepts modern science, technological innovation, industrialism, and commercialism (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

The notion of contemporary Islamic religiosity as essentially a form 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 subjecthood18 and presumed distinctions between political and nonpolitical domains of life,19 and challenges received ideas about modern rationality and tradition.20

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The 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 are—and have long been— questioned and critiqued within social theory. Commenting 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 who 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 questioning of Islamic religiosity—which presupposes modern norms as natural—and the questioning of modern norms—which presupposes that they are not— constitute two different conversations that cannot ever meet. So pronounced is this distinction that one finds it even among the most trenchant 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,” “reform,” “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. When 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 Euben raises an important consideration.23 She notes that the critiques of modernity that arise from 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. The distinction between transcendental and non-

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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 contemporary 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. On the contrary, it has helped provide a more careful 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 contemporary moment: tendencies to rule-generalizing and codification, expansive 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 religiosity 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. And 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 contemporary 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

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Muslims found persuasive and found obliged to respond to. I was concerned 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 sensibility, conditions under which they had to subsist and proceed. How might such an understanding speak to, and possibly unsettle, the presuppositions and concepts of contemporary social theory? My interest was to do something 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 Appeals Court in 1995, caught my attention. The case was about a professor at Cairo University named Nasr Abu Zayd. A set of private citizens— some of them professors from his own university—accused him of having written academic works that amounted to apostasy from Islam. As 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 Abu Zayd publicly declared himself to be Muslim, and neither his wife nor he wanted their marriage dissolved. There was a larger background to all of this. The seeds of the conflict were laid in 1993 within Cairo University, where Abu Zayd, up for promotion, had vocally criticized the Islamic banking institutions in Egypt that one of the influential members of his review committee had worked to establish. Abu Zayd was subsequently denied promotion after a harsh review of his work by this one committee member. The denial sparked an internal university battle that began to attract some international attention. In the context of this ongoing battle the court case against him was raised. What was interesting, however, was the reasoning and argumentation the litigants in the court, and eventually the court itself, employed. The petitioners filed their claim on the basis of a religious principle that was nowhere stated or implied in the Egyptian legal codes, including the Shari‘a-based codes of personal status. However, they claimed the legitimacy of their controversial use of this unstated principle through what could be thought of as loopholes in the current law. Those 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 Egyptian codes. The principle that the petitioners employed was called hisba, defined

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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. Consequently, a number of issues thought central to people’s essential rights and fundamental beliefs were brought out and argued in the course of litigation. 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 Abu Zayd an apostate impacted 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 promotion at the university. The enormous controversy sparked by the decision 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 others, 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 decision when I was there—upholding the Appeals Court’s decision, and in some ways going substantially beyond it. Amid the ensuing controversy, I spoke with several lawyers who directed me toward pertinent issues concerning 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 it — such as Baber Johansen’s analyses — 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. As 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

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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 come to inhabit in Egypt. In the first chapter I look carefully into the argumentation the conflicting parties employed, the particular ways that authorities were referenced, and the assumptions that were made evident in the process. I focus on the distinctive—largely liberal— concepts 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 between 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 Egyptian life. The conclusions and questions about hisba that arise from this first chapter will continue to expand and reverberate throughout the rest of the book.

The Rise and Fall of a Research Project As I had noted earlier, the hisba judgment sparked tremendous controversy and anxiety in Egypt, and there was much talk about it. The 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. They 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.

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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 distinctive 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 understand 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 Egypt—in 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. Difficult 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, introducing 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 Islamic 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. After 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 immensely high. A hundred cases can be submitted in a single three-hour

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session. Lawyers have only a few seconds to introduce their cases and submit 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. Furthermore, 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 deviations from the legal texts—such as the usage of Shari‘a concepts not explicitly in them—then 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 government’s control since 1995. The state had usurped the control of the syndicate from the Islamists who initially held it after they initiated massive protests against the government’s torture and execution of Islamist lawyer ‘Abd al-Ha¯rith 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 efforts toward releasing them, easing their living conditions, and getting compensation for them and their families. Such work required that lawyers 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 judicial 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.

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Moreover, my subsequent explorations of the Egyptian courts and legal 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 law—in 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 dilemma. On the one hand there was a highly liberalized Shari‘a. On 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 secularity? Here I was confronted once again by the very same sorts of questions 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. As a result, I began to pursue not only the question of hisba’s seeming aberration but also the question of this question—that is, the form of power that confronts us with it at every turn. The second chapter is the outcome of this pursuit. Through ethnography 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 between religion and politics. Hisba seems to transgress this secular separation. How can the two be compatible?

The Intractability of Secular Power This sense of incompatibility, I argue, emerges from a continuing disposition 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 Abu 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

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theorizing has emphasized that secularism involves less a separation of religion and politics than the fashioning of religion as an object of continual 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 criteria 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. And 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. The 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 narrative, this is part of the differentiation of social spheres and the parsing of religion away into its own separate domain—a process that renders religion increasingly irrelevant within social life. Where 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 politicization 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 But by so doing we have implicitly conceded the framing assumption of the secularization narrative itself, that the measure of the relevance of

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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 success, 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 successful 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 encounter 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. And 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 incompatible with and a deviation from the norms that secularism purportedly seeks to establish. And with respect to the recent rise of Islamic religiosity, it inevitably becomes cast as an aberration of some kind—if not modernity, then certainly secularity. And 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

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to establish. These are simply assumed to be the ones articulated by the secularization narrative. No doubt the more recent approaches to secularism articulate an important difference from earlier understandings. While in earlier understandings secular norms were seen as natural, and connected 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 criteria 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 understand 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 described 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—religious freedom and tolerance — and the attitudes normally thought to come with them — a generous disposition and a democratic sensibility. This gap, in turn, helps animate the kinds of continual normative questioning, 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, secularism is historically and remains today an expression of the state’s sovereign power.31 And 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

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normative categories and standards as the analytic measure for what it does, and which facilitate notions of partial, precarious, or complete success. For the peculiar intractability of secularism lies not only in the normativity 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 typically thought to be associated with them. These are not, however, the indeterminacies 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 indissolubly linked to the sovereign power of the modern state. No 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 religious 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. The 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 technical or merely academic one. On the contrary, it is ineluctably invested with high stakes, having to do with the definition and distribution of the fundamental 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. And so it is a question always suffused with affects, sensibilities, and anxieties that mobilize and are mobilized by power.

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The 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 What therefore distinguishes secularism as a historical phenomenon is not just the question of where to draw a line between religion and politics—which may have medieval analogues—but 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 “problemspace,” 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 questions 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

Approaching 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. At 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). The identifiable stakes are the rights, freedoms, and virtues that have become historically identified with liberalism, such as legal equality, freedom of belief and expression, 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 questions as on the range of answers given, it forestalls the tendency to single

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out any one answer, historical or contemporary, as more or less correct. Because what matters in this approach is less the propriety of the distinctions made than what they are made in response to, the stakes that are involved, and the social consequences. It therefore does not easily lend itself 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 implemented incessantly generate the very question that doctrine aims to answer; 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. And 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 regulatory capacities of the modern state, and it is something we see throughout 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 incompletely 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. All of these positions presuppose, in one way or another, normative conceptions of the secular and the religious, 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

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of religion and politics has not only endured, it has also become all the more pressing, underlying a broadening array of concerns in contemporary social life. Thus: should polygamous, gay, or any form of marriage be banned—why? 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-Judaism, 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 between 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 problemspace, 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 law”—for 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 power—the state’s authority to decide what counts as essentially religious and what scope it should have in social life—rests crucially upon the legal concept of public order. But because the notion of public order is an expression of state sovereignty, it is bedeviled 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.

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Hisba also helps demonstrate something else: how secular power enables 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 increasingly 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, contested, and undermined ever since its inception as a modern concept.36 That has not diminished its importance as an organizing concept of contemporary 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 image of an 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 image 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 NGO, 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 threatened, 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 notion 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

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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. Sovereignty is more than just the state’s regulatory capacity. It is also a central organizing concept of contemporary life. As 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 exception) 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 capacity 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. And 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,

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secularism must be crucially understood as a questioning power, a modality 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 presuppositions 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 questioning) 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 important, 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 distinctions 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. As a result, religious claims are viewed with both suspicion and anxiety: suspicion 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 authenticity 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 scrutiny, 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

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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? And 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? And 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 without coercion, while people tended to follow fatwas even though there is no way to force them. At 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 status courts and the Fatwa Council of Al-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? And 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 restricted 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

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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 indispensable source of legitimacy. It is hard to see how this distrust and legitimacy go together.39 And 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 indispensable 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 legitimacy that they provoked. I detail, in an ethnographic manner, the very different structures of authority displayed by the council and courts respectively, 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. And 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. As the regulatory power of the state expands into more and more domains of everyday life, legislations concerning those domains accompany that power. The domains thus become subject to the possibilities of manipulation and forms of suspicion that come with the law and courts. As more and more domains of life become subject to the law they also become subject to various forms of state intervention. These interventions, 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, suspicion, exceptions, and expansion are endemic to this distinctively modern process. When the Shari‘a becomes subsumed under the rule of law, it

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may also begin to acquire some of these features. I demonstrate this by invoking the hisba case of Abu 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 entirely 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 self—an ethical practice by which a self moves forward in life’s affairs in a way consonant with the virtuous 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 conceptual 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. As I mentioned earlier in this introduction, Egypt has been under a state of emergency since at least 1967. So long has it been under this state of affairs

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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 lawyers 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 emergency. 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 order— 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 revolved 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 secularism as a form of power. There were thus two parallel conversations. One was about the uncertainties and dangers of modern state power. The other was about the dangers of and defenses against religion, which implied the notion of

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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 movement, might not the situation there provide some insight into these conversations? 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 considerations 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 emergency 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 exception—if the rule of law is inadequate 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. And yet the invocation of the principles, narratives, 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

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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 ones—to 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 politics — 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. And 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 exception 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. As the condition of emergency becomes increasingly and expansively normalized, the limits of the rule of law become only more starkly evident. But, as I mentioned above, Egypt has deployed these concepts and practices 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 religiously 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,

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but in asking them, I hope to have brought two distinct conversations that emerged after September 11, one about emergency states and the sovereign exception, and the other about secularism as a form of power, into a more intimate proximity.

Secular Power and Paradox As is evident from the story I have told, I came across a number of paradoxes 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 subverting 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 authority. 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 historical legal changes, ethnographic observation of sessions in the personal status courts and the Fatwa Council of Al-Azhar, and following Islamist lawyers’ legal work—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

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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 characteristic 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 highlighting 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.

chapter one

The Legalization of Hisba in the Case of Nasr Abu Zayd

S

ince 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 project, 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 institutions, and which exerted authority over a wide range of social activities? 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. And 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

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dispense with a consideration of legal conditions there and their effects. How have legal transformations affected the Shari‘a? In what ways has the construction of new legal conditions altered the significance of specific Islamic concepts and practices in Egypt? These 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 Abu Zayd. As 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. The Abu Zayd court judgments that I discuss here bring out with great clarity 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 process I will look at some of the specific historical changes that put those modern concepts and spaces in place. The principles invoked in the Abu Zayd judgments are particularly important for understanding how the Islamic Shari‘a has become configured under Egypt’s modernizing project. Many 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 significantly transformed the latter in Egypt. However, attempts to conceptualize both civil law and the Shari‘a have encountered much difficulty. Legal theorist Alan 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 The 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

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chapter one 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 formations 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 discourses and practices of another. The concept of a discursive tradition as used in this chapter and in this book is somewhat at odds with the view of an invented tradition still very widely used in anthropological discussions of Islam and the Middle East. That view is rooted in the idea that the past is a reservoir of symbols that can be variously interpreted and manipulated for present (usually political) purposes.6 The emphasis is on symbols and their uses. The 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 authority 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 conditions. They must, for example, address the proper themes, cite the right authorities, and employ the correct argumentative forms—all of which have been historically constituted along with and in relation to the practices and institutions that together make up the tradition in question. The concern, then, is not with symbolic manipulation but with aspects of the argumentation used in the court case and their historical conditions. By 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-

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torical transformations that put them in place—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. All 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 Cassation—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 Abu Zayd. The Court of Cassation’s verdict upheld a previous ruling of the Cairo Appeals Court issued the year before, which declared Abu Zayd an apostate from Islam and, as a result, annulled his marriage to his wife.9 This was against the will of both Abu Zayd and his wife. Proof of Abu Zayd’s apostasy was found in a set of his published writings, writings that he had previously submitted to a Cairo University review committee for the purpose of a promotion. And 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 Abu 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 Abu 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 technically defined within the Shari‘a as “the commanding of good when it is manifestly neglected, and the forbidding of evil, when its practice is manifest,”10 and it had been subject to increasing legal and religious elaboration

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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 Abu 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 Muslim wife. On this basis they petitioned the court to immediately annul his marriage. The plaintiffs were often asked why they cared at all about Abu Zayd’s marriage. They eventually replied that in fact they weren’t really interested in his marriage. Rather, they were interested in the court’s having to make a legal determination of Abu 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 Abu 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-niya¯ba al-‘amma) only.11 This move angered both Islamists and liberals—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

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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, Abu 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 Abu Zayd’s commitments 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 statements 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 sufficiency 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 Abu Zayd should be judged an apostate. One 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 Abu 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 110. 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 God then it is

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required for the court to look into it [with or without the presence of the parties].”13 Hisba was defined within Islam to be a matter of the rights of God, 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 jurisdiction 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 God 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. Article 6 paralleled an earlier provision (280) in the 1931 regulations of old Shari‘a courts. The defense argued otherwise. They 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”15 that the court can judge upon.”16 This principle of civil litigation is typically understood to refer to the private interest of the plaintiffs. Since the plaintiffs had no “legal attribute” or direct interest in filing the suit, the defendants argued, the court should dismiss the case. The defense further claimed that the court had no jurisdiction to judge upon the validity of a person’s religious belief. The 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 direct legal interest and “legal attribute” to file suit, and since the plaintiffs did not have this, the Giza Court dismissed the case. The plaintiffs appealed to the personal status division of the Cairo Court of Appeals, which accepted the case, judged Abu Zayd an apostate, and declared his separation from his wife. The Appeals Court did not reject the distinction between procedural and substantive matters that

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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 plaintiffs’ interest could not be determined solely in procedural terms; it had to be determined from 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 preferred views of the doctrine of Abu Hanı¯ fa, 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 Hanı¯ fa’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 Hanı¯ fa state that hisba testimony [without 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. . . . 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 Al 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.19

Now the defendants had argued that judging upon the validity of a person’s belief or apostasy was beyond the Giza Court’s jurisdiction. The only given provisions for apostasy judgments in the Egyptian law, they argued, concerned official declarations of unbelief, which Abu Zayd had not made. An investigation of belief or apostasy when no such official

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declaration had been made, they further argued, was a violation of a person’s private life and freedom of belief and was thus outside the jurisdiction of any court. The Appeals 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‘tiqa¯d). 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 not . . . 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.21 However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (‘aqı¯da) 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.

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Thus freedom of belief was not defined as freedom to believe what one wants; it was not solely a matter of being able to choose one’s own opinion or views. Rather, freedom of belief also consisted in a protection from those actions and practices that would corrupt religious belief and obstruct the conditions needed for its proper maintenance and practice. Belief therefore required investigation when obstructions to it were manifest. For the Appeals Court, Abu Zayd’s published writings constituted manifest evidence for his apostasy or belief. The Appeals Court judgment, after a review of Abu Zayd’s published writings, further concluded that what [Abu Zayd] had written contravenes not only religion, but also the Constitution of the Arab Republic of Egypt. Its article 2 states that Islam is the religion of the State. . . . 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, Abu Zayd had attacked the principles of the public order itself. Thus the court pronounced his apostasy and declared his immediate separation from his wife. The defendants appealed the decision to the Court of Cassation. They claimed that the Court of Appeals was mistaken in accepting hisba suits. They also argued that Abu Zayd was an Islamic scholar who was learned in Islamic doctrines, and that his writings constituted ijtiha¯d. Ijtiha¯d is a mode of reasoning employed in the consideration of situations that are ambiguous with respect to the accumulated strictures of authoritative Islamic texts, and typically only very learned scholars are allowed to engage in it. As such, Abu 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 Appeals Court. It further stated that Hisba, according to this Court and to the Islamic scholars ( fuqaha¯’), is an act . . . 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

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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

As for the issue of ijtiha¯d and interpretation, the court stated that the entire text [of the Qur’an] itself is not meant to be subjected to ijtiha¯d. Ijtiha¯d 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 Sunna [the practices and sayings of the Prophet of Islam], and the Sunna 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 affirmed the Cairo Appeals Court judgment, declared Abu Zayd 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. The first is the kind and the propriety of the interest of the party that filed the hisba claim. The second is the nature of belief and the extent to which it is a public or a private matter.25 And the third is the status of Abu 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. More specifically, it was to call attention to the fact that the judgments bring together, for their coherence, a set of heterogeneous authorities: the Qur’an and the Sunna; the rights of God, the public interest, the public order, the most preferred views of the Hanafi school of Islam, the Egyptian 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 interpretation, and the duties of hisba upon individual Muslim citizens. Such confluences are worthy of attention because law, as it is charac-

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teristically used in modern and modernizing states like Egypt, is one important 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 enacted.26 Thus “in the modern state, law is an element in political strategies— 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 aspects of these different modes in distinctive ways that create new options and limit others. Any 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. After 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 Abd 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. One 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

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Europeans of different countries in Egypt, or between Europeans and Egyptians. Their jurisdiction quickly expanded to encompass Egypt’s entire commercial life, including cases between Egyptians, because, increasingly, the money involved even in “indigenous” disputes was European. Limiting the rapid growth of the Mixed Courts was one reason the Egyptian 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 nevertheless modeled almost entirely upon them, both in organizational structure 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 Among 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. As I had just mentioned, limiting the Shari‘a courts’ jurisdiction to matters of personal status involved a fundamental transformation of their constitutive practices. An example of one such practice was called tazkiyya, 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 ‘ada¯la (integrity, or moral uprightness). The determination of witnesses’ proper ‘ada¯la 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 ‘ada¯la was one inclusive moral term that summed up a set of virtues to be found and practiced in multiple aspects of life.31 Witnesses who possessed ‘ada¯la 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 inquiry 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 ‘ada¯la, for example, was crucial for a range of diverse practices

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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 historical biographical sciences; and methods of instruction.33 In this sense, ‘ada¯la provided one foundation for the formation of systematic knowledges 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 narrowing 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 worship (‘ibada¯t), matters of punishment (‘uquba¯t), and matters of relations between people (mu‘amala¯t), which included matters of divorce and marriage, proper behavior to relatives, as well as commercial dealings.34 It was not just simply that the Shari‘a and civil law tradition had different divisions. Rather, it was that those divisions were of entirely different kinds. The divisions of civil law are conceived, in part, as boundaries safeguarding the pursuit of individual private interests against the intervention 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 pursuits. An indication of this change of emphasis can be found in the regulations for case filing procedures of the national courts, referenced in the previous section, which state that “a case is not accepted unless the plaintiff 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 Abu 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

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depended crucially on the way the interest of the plaintiffs was defined in relation to the defendants. And the categories in which their interest was framed were those of public and private. Of 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), organization 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. More than that, it involved the creation of an entire network of new legal professions, professional and educational organizations, methods of instruction, and forms of scholarship.37 Part of the problem for those who established this new network was to find ways to imbed already existing Islamic institutions within it. This embedding 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. The significance of this change cannot be overemphasized. Consider how Judge Brinton, who sat on the Mixed Courts, characterizes its import with respect to the awqa¯f,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 transfer 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-

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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 difficulty 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 considered a much less trustworthy form of legal proof. One 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 The introduction 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. To put the awqa¯f 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 contributed 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 ‘ada¯la, that formed a foundation of its authorized knowledges. Contemporary Egyptian procedures of evidence are directly inherited from the Mixed Courts. Consider the following 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 lawyers 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 hearing.41

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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 examine them for the purpose of rebuttal. Thus even in matters of personal status, the very domain to which the Shari‘a was finally restricted, questions of ‘ada¯la 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 understood 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 include 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 particular 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 dispositional element of belief that is just as important as doctrine. Note that the instance described in this particular list is also an example of nası¯ha ˙ (advice-giving), a Shari‘a practice of moral inquiry and criticism that, like hisba, 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 Abu 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. As this has been a long and detailed section, it would be worth summarizing its main points before going on. One of the things that characterized Islamic tradition was a welldeveloped 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.

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The reception of civil law in Egypt, which was inaugurated with Muhammad Ali, entrenched with the Mixed Courts and their expansive jurisdiction, 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 individual 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 Abu Zayd case; namely, the centrality of the issue of interest, the importance of public/private distinctions with respect to interest and belief, the primacy of written evidence for determining Abu 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 authoritative ground upon which new legal concepts were justified and legal reforms 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 principle 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 practices 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.

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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 important distinctions found in the Shari‘a were entirely unlike those of civil law, and that they took their scope and significance from 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 Abu Zayd judgments. The 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 ‘ada¯la. One such manual, in describing hisba, quotes a Hadith that says, “The best of witnesses is he who witnesses without being required to do so.”46 Not 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 preconditions or requisites for each other’s proper performance. Hisba was initially a practice intended for “maintaining the honor of the marketplace” (musharrafat al-su¯q) 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 huqu¯q Allah (the rights of God), 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 God: prevention of adultery, drinking (alcohol), 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 good” within hisba in relation to the rights of God, 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

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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 God were not seen as qualities that inhered within God himself. Rather, they existed only in relation to another set of rights: those of his servants, or worshipers (huqu¯q al-‘iba¯d).50 The rights of his servants included: mercy, forgiveness, peace, guidance, and success. 51 Thus, for example, a chapter from the religious discussion just quoted states that hisba is one of the obligatory methods of establishing a Muslim community (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 kifa¯ya). ˙ Here we may draw an important distinction between the rights derived from the relation between God and his servants and those found within civil law tradition. The rights of God 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 God and his servants are not meant to demarcate spheres of jurisdiction for a legal system whose function is to uphold the proper conditions for the pursuit of multiple, individual interests. They would be more properly understood as having 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 God, is considered 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-za¯hir) as opposed to “the concealment of God” (satr Allah), the violation of which is defined as the sin of spying (tajassus). Legal and religious texts have regarded hisba as only one among many

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forms of commanding the good and forbidding the evil. However, what distinguishes it from other such forms of interdiction is the concept of “the manifest” (al-za¯hir): [The definition of hisba as] the commanding of the good if it is manifestly neglected 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

The “manifest” (al-za¯hir) 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 it . . . [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 Ghaza¯li 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 permissible that he inquire into what he had hidden.”57

Now “the manifest” has been further defined in relation to various degrees of the concealment of God (satr Allah), which include: (1) Where the evil is hidden and the muhtasib has no knowledge of it. Then it is not ˙ allowed for him to investigate. (2) Where 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 suspicion. (3) Where the evil is hidden and unseen to the muhtasib, but he ˙

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has knowledge of it, but has not confirmed it. Then that knowledge is not enough to immediately expose it, although here, some investigation is possible. (4) When 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 confirmation then he may legitimately expose it. (5) When 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) When the evil is obvious and evident. Then 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 obvious 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 who practice it, but to those on whom it is practiced as well. What is not evident here is a concept of private 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 TV talk shows, and the live police shows that are still so popular at this time. These would be considered 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. The concept of satr Allah also does not fit into notions of privacy developed within German and French legal traditions. Thus it

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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 God 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 circumstances, 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 summarizing 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 concerning 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 interconnected 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 guaranteeing the proper pursuit of interests. The broad contrast here, then, is be-

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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 different set of categories. And 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 from the court judgments that were quoted in a previous section of the chapter. Consider the following passage, from the Appeals 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 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 Al 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 God have been redefined in terms of the notions of public order and public interest. By equating the rights of God with the public order and the public interest, and the public interest with the private interest of every Egyptian Muslim citizen, the Appeals Court was able to justify its acceptance of the hisba claim against Abu Zayd as consonant with the regulations of civil procedure, which require that plaintiffs have a direct interest to file legal claims. The 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 God fall on both sides of the public/ private divide. Thus, for example, divorce— one of the rights of God, 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 constitutes a public interest.

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Here it may be noted that I have not mentioned the Shari‘a concept of maslaha, typically translated as “interest,” in my discussion of hisba. One ˙ 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. As Albert Hirschman has shown, the concept of interest has undergone 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 expounded by the courts in relation to hisba. On another note, the subsumption of the rights of God under the public /private distinction seems to have given religious belief a public character that it had not had before under Egyptian civil law. While 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, becomes a state responsibility. Also, maintaining freedom of belief, defined by the court judgments as protecting belief from corrupting influences, becomes a state responsibility. In this regard one could envision filing a hisba suit against the state itself for its failure to protect belief from 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. The second change, related to the first, is in the manner and the purpose 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 Hanı¯ fa state that hisba testimony [without 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 ( fuqaha¯’), is an act . . . that involves the commanding of the good when it is manifestly neglected, and

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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 gradations of hisba, which were aimed at conducing proper passions and dispositions as specified within the Shari‘a, are not mentioned in the court judgments. The point of hisba, according to the judgments, is not to produce the proper virtues but to remove violations and to impose the proper penalties—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 proceedings.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: how 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 Egypt? I explored these questions with reference to the court case of Nasr Abu Zayd and the concept of hisba that was central to it. A consideration of the major themes found in the Abu Zayd 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 concept and practice of hisba was discussed. Hisba, conceptualized as a disciplinary 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 Abu Zayd court judgments. It has become linked to concepts and categories—namely, interest and the public/private distinction—that did not obtain in the Shari‘a. And it has

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become part of a different procedure, one that disregards the significance of its disciplinary gradations and concerns. These changes together constitute 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 realization 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 God 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 concepts through court cases begun to change how those concepts are conceived and practiced? And 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 fundamental 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 ongoing 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.

chapter two

The Indeterminacies of Secular Power: Sovereignty, Public Order, and Family

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he court’s Abu Zayd decision provoked an enormous amount of anxiety and debate in Egypt. This was not only because it adjudged Abu 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 declaration 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. And while the court emphasized that its decision did not violate religious freedom (because that freedom included maintaining the conditions for the practice and cultivation of religious belief), it nevertheless specified no limits on this now legalized duty of hisba. This meant that a whole range of practices considered 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 marriage—a prospect 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 indeterminate range of hisba, and thus any of the anxiety it caused. Indeed, both Islamists and secular liberals opposed the legislation—Islamists because

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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. Abu Zayd, fearing for the security of his family 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 Abu Zayd court judgments, an instance of the secularization of a religious concept or of the Islamization of secular legal precepts? Indeed, the hisba decision poignantly demonstrates the kind of blurring of religion and politics that leads observers 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. As 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 articulated 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? And what light does answering this question shed upon the broader one that it provokes—whether Egypt a secular or a religious state? These are the questions 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 privacy 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? As articulated through the courts, it seemed to strike directly against liberal secular expectations of religion.

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How could a liberalized Shari‘a and the hisba decision arise out of the same legal framework? Was hisba just an anomaly? An illiberal expression of an incompletely secular law? This leads me to the second counterintuitive 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. As we will see in what follows, the concepts 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 Abu 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 foundation 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 incessantly 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 politics nor in terms of its success or failure in imposing a set of regulatory norms. Rather, it is more usefully approached as a historical problemspace, that is, in terms of an ensemble of questions and attached stakes that seem indispensible to the practical intelligibility of political and social life. At the center of this ensemble is the question of where to draw the

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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 virtues 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 question 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 principle 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. And 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 determination. 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. And 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 religious 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. And the state is typically responsible for maintaining it. Which means that the state plays an important role in maintaining the integrity of public and private spaces.

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These spaces, however, are never just empty ones. They are always suffused 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 indispensible 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 law—in 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 sovereignty 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

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anxiety that secular decision creates; on the contrary, it tends only to consolidate and expand the state’s sovereign authority to decide what counts as religious and what scope it should have in social life. The indeterminacies 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, authorized, 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 indeterminacies are also characteristic of those states considered to be paradigmatically 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 indeterminate the line between religion and politics. After 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 remains) attached to and foundational for the public order in Egypt and elucidate 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 discussion, 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.

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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 knowledge 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 religious opinions into the public domain is to be plagued with interminable, irresolvable moral and possibly even civil strife. The inability to authoritatively settle conflicting religious views is thus a feature of religion as commonly understood within liberal thought. As 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 place—that is, the private domain—is therefore linked to its status as nonknowledge. The private domain into which it is to be placed is not only one of personal belief; 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. On 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 conceptual 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 Al-Azhar—a space where the Shari‘a is employed

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in response to questions and problems that overlap with those of the personal status law. My discussion of the Fatwa Council inaugurates the comparative approach that I will develop in subsequent chapters. To frame the following ethnography, let me begin with a brief historical 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. As 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 existed 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 One important element of my ethnographic fieldwork was to attend personal 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 deliberation chamber (ghurfat al-muda¯wala), and that they were conducting the case hearings within it. The man at the front of the chamber door was the court usher (ha¯gib). ˙ The door of the deliberation chamber was almost always left ajar, but if

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you tried to move up to see or hear what was happening inside (as I often did), the ha¯gib would harshly intervene and push you back. This was the ˙ set-up for almost all personal status hearings. Although I sometimes encountered 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 longstanding and foundational legal principle enshrined in both the Egyptian procedural codes and the constitution. Violating this requirement typically rendered judgments null and void. The court, however, was allowed to make exceptions. The laws state that exceptions can be made for considerations 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 exploration. How, after all, does a public personal status hearing threaten public order? What does the “sanctity of the family” mean anyway? And 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. One lawyer, Khalı¯ l, 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. All 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 code—numbered 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 Khalı¯ l 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

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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 informality. 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

As this and other descriptions show, personal status sessions in the early 1970s were largely open and highly informal. Despite the articles requiring personal status requests to be heard in deliberation chambers, what could or could not be heard in the courts was not, according to these descriptions, 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 decisions issued from hearings not conducted in secret. This was even though there were no explicit provisions nullifying personal status decisions issued from public hearings. The 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 nullifies 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 implies nullity of judgment. To 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-

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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. And 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. He 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. As 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 although 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 guardianship, especially when there is family disagreement about it. At 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

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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 jurisdiction over the case, because it only decides guardianship over, and not allotment of, inheritance. The lawyer thereby cast doubts on the uncle’s intentions, 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. At this the uncle’s lawyer broke in with loud objections. The head judge, fed up with the lawyers’ fierce and unruly argumentation, 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. As 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 different 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. After 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. At this point the third judge, who had remained silent 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 priority over a woman who is not his mother in issues of guardianship over inheritance.

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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. He 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 incredulity 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 intimacy can sometimes trump a more technically correct legal argument in the personal status court. The child’s intimacy with his stepmother, demonstrated 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 notions of family, producing a courtroom ambience that contrasts strikingly with what we saw in the descriptions of the early 1970s. All indications show that these sensibilities are becoming further entrenched. The Egyptian state has through recent legislation15 established a system of family courts as a space of intimacy, which includes a set of

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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 sessions of these reconciliation centers and talk with psychologists and social workers who conduct them. One 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 Awakening. 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 amendments; 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, intensifying 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 facilitated by state reform. This was the explanation I held, initially. Further 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 Supreme Constitutional Court (SCC), whose contours were also set in place

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during this period of reform, interpreted the amendment as giving judges, most of whom are not religiously trained, the power to make Islamic interpretations 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 ijtiha¯d— a form of reasoning relatively independent of religious texts—to 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. And when judges employed ijtiha¯d, they typically resorted to enacted legislation —unrelated to religious law—in lieu of the ambiguities of revealed texts to find the guidance they sought. In practice, this power of ijtiha¯d 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 SCC jurisprudence is also consistent with a whole range of state-sponsored legal and political reforms 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 revocation of the long-standing state of emergency. Indeed, the only time AlSadat 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 toward 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 emphasis on individualism and equality on the one hand, and the gradual usurpation of traditional family functions by state agencies on the other, making

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it more difficult to define just what a family bond is and does, and reinforcing the emphasis on its intimate, personal, and emotional dimension.21 All 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 reform personal status law in a liberal direction? Was it that Islamic and liberal 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 otherwise 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 encounters in the Fatwa Council of Al-Azhar (Lagnat al-Fatwa bi’l Azhar), whose sessions I also attended as part of my ethnographic fieldwork. Fatwas 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 muftis.22 Comparing the personal status courts with the Fatwa Council of AlAzhar 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

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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. As 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 Al-Azhar was inaugurated in 1935 by Sheikh al-Azhar Mustafa al-Mara¯ghi and was placed officially under the Ministry of Religious Endowments (Wiza¯rat al-Awqa¯f ).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 fatwas 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 (hassa¯sa) 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. After 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 energy, 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. Although 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

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ha¯gib (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 questioners; adjacent to them were a number of other seats occupied by people silently 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. Above 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 particular person about the question he or she was asking. The issues that came up with the muftis were as intimate as could be— 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 Christianity. During sex his wife, who was still Christian, would perform fellatio (“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 family—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 God 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

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her fourteen years back, her husband would undoubtedly leave her and she would become unmarriageable. God had “covered” upon the issue, and it seemed this was better for all. (And maybe, the mufti said as an afterthought, 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 nuanced 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 distinctions typically expressed in modern liberal law. This not to say that there were no points where I was not allowed to listen—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 together 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 Karı¯ m 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 reconciliation. 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. One of them asked the woman: “what did his brother say?” About to tell them, she stopped suddenly, looked straight at Karı¯ m 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

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a mufti of their sister’s mental trauma; she couldn’t sleep and suffered lethargy and depression. She sat a distance away from them, against the wall, arms crossed against her shoulders, head turned up and to the side, mumbling to herself. Looking at her, the mufti insisted that this was a matter for physicians or psychologists. But the two men claimed a peculiar phenomenon: 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 discussed 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. And 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. And 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 journalist. After 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 persistent journalist who wanted to get a fatwa on whether or not a woman could be a ma’zu¯n, or marriage notary. He would wait patiently until his turn came, whereupon the mufti would ponder his question for a while,

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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. After 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’zu¯n didn’t make sense to him. After the journalist left, the sheikh turned to me and joked about how these journalists are always causing trouble (y‘amilo masha¯kil) 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. At this he became distinctly uncomfortable, and then said to me that the problem was that the sessions involved the secrets of people (asra¯r 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 ability 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 precisely 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 deliberation chambers and thus shrouded from public view, even if official

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justifications are published along with judgments rendered. And while court publicity implies open scrutiny of court proceedings, it nevertheless prohibits people from actually participating in them. The 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 situations 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. Both the personal status courts and the Fatwa Council of Al-Azhar are products of modern reforms,26 and both are institutions under the state. Both are based in the Shari‘a, and they deal with a broadly overlapping range of issues. But in the Fatwa Council 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,27 the issues addressed in the Fatwa Council 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: yes. 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.

When I saw such proceedings and read through the transcripts I obtained 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. They 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. After all, personal status hearings were, from the early descriptions, gen-

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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 indispensable 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 therefore 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 Al-Azhar 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 configuration 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 characteristics 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

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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 acquired limitations and sensibilities that conform to liberal secular expectations 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 conceptualaffective 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 liberalized in significant ways, and that it has also become embedded within a distinctive 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 concept 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? And what, if anything, do these links have to do with hisba? These are the questions addressed in the next sections. We start with a case of Christian polygamy.

The Public Order Paradox and Christian Polygamy As 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

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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 respective denominations. However, in cases of mixed marriage, that is, between a Muslim and a Christian, or between Christians of different denominations, the Shari‘a prevails. The fact that the Shari‘a governs mixed denominational 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. The case is discussed by legal scholar Maurits Berger; I base my discussion here partly upon his.28 The case is about a Christian man in a mixed denominational marriage who opts to marry a second wife. His first wife sues him, saying that this second marriage is null and void, and that it violates the principles of the public order (al-niza¯m al-‘aam), since Christian laws do not allow for polygamy. The 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 husband 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. The court thus defines 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 secular 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 (al-shu‘ur al-‘amma) are injured if it is not adhered to. [. . .] The definition (taqdir) [of public order] is characterized by objectivity, in accordance with what the largest majority (aghlab a ‘amm) of individuals in the community believes.29

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The public order, as the court defines it, expresses a seemingly irresolvable tension. For on the one hand, the public order is to apply equally to all citizens. On 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. After a review of theological literature, it determined that monogamy is in fact essential to Christianity. Thus it made an exception to the requirements (or in this case, allowances) of the public order and prohibited the husband from marrying another woman, rendering his second marriage null and void. One 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 active 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-Kita¯b), 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

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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 private international law. Private international law concerns relations among private persons from different states, and thus deals primarily with commercial 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. As 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 for judges 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.

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But the public order also became an important expression of state sovereignty 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 suspension 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 embodies between formal legal equality and the substantive values of the majority, that is, between competing norms. It is also because those substantive 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 promoting 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 religious 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 Book—Jews 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 conceptual field. Thus it is often associated in judicial reasoning with the notion of public interest, and sometimes with “public sentiment.” In authoritative 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. One consequence of this is that the

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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. And 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 especially 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. And on the basis of public order considerations, states have successfully argued in-principle prohibitions on proselytizing, conversion, as well as the upholding of blasphemy laws for specific religions.37 What is important here is not just that public order considerations typically 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. And 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 paradigm 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 illustrate how indeterminacy goes to the very heart of secular power and decision. To see that, let us return briefly to the polygamy case. As 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 concept. After defining it as secular, however, the court states that it is comprised 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

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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 contain 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. And because of this, legal entanglements with theological questions can also become attached to majority-minority relations. As 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 arguments 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 And as political contestations 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. And 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 exception—and thus, the restriction and protection of rights—relentlessly raises without resolving the question of religion and politics.

Family and State Sovereignty How did the public order, this ostensibly secular and distinctively European 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

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Shari‘a courts that were instituted in 1897. The concept of public order was first introduced through these reforms. And by a seemingly strange coincidence, it was introduced in relation to the publicity of court hearings, 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 current 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. As 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 jurisdiction to make space for the emerging national court system that eventually absorbed and replaced them. As part of this process, the state sought to regulate Islamic practice by defining the essence of the Shari‘a as comprised 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, moreover, 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 involving 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. All three reforms were set in motion and authorized by the modernizing Egyptian state as part of the establishment 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.

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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 distinction 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.” And the constitution of 1956 under Gamal Abd el-Nasser declared the family to be the foundation of society. As 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 power—the 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 identified with family, and family has been placed at the foundation of the public order. The principles of public order therefore blur into the principles of religion. At 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 history 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

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of a process whereby the state acquired and demonstrated its sovereign authority over its territory and against the Church.47 They were thus connections 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 domestic and international law.48 The regulation of family came to be seen as the quintessential expression of domestic sovereignty at a time when sovereignty became the doctrinal foundation of statehood internationally.49 And 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 meanings, 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 characteristic 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. On 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 historical 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 private 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

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shaped by liberal legal concepts and precepts. In this sense, it has become “liberalized”— that is, largely restricted to a private domain of family, imbued with distinctively liberal sensibilities about privacy, and highly circumscribed from state policy making. All of this conforms to liberal secular expectations of religion. But this brings us back to where we started, with the hisba case against Nasr Abu Zayd, which seems to contradict these very expectations. A university professor of Arabic and Islamic studies, a professed Muslim, Abu Zayd was nevertheless, through the use of hisba, declared an apostate by the court, his marriage forcibly dissolved. The state, instead of granting 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? As 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 chapter. 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 protection 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 different 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

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displayed?50 Or even its consistent past practice of compelling religious divorce actions in some cases for couples who had undergone a civil divorce?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 crèches 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 Abu 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. As 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. As 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 collective. 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 tolerance becomes connected to matters of law and litigation, as it always inescapably 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

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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. One 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 distinction between religious belief and practice, and the second is the distinction 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 life—which is the active principle of secularism. And 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 Abu 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 indeterminacy 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 tolerance—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 religious one? My answer is that this is precisely the indeterminacy of secular power, which relentlessly entangles us in such questions and conflicts of religion 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 place—the private domain—was connected to

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its status as nonknowledge. What the case of hisba suggests is that secularism 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 neither 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 freedoms. 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. The question of Egypt’s secularity or religiosity is therefore an expression of secularism’s characteristic tensions and its distinctive modes of power, sensibility, and instability. Secularism, supposed to separate religion from politics, hopelessly blurs them; ideally a principle of peace, it fosters political-religious conflict instead. Law offers no way out, being a condition of this intractability. 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 integral 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 contestation, I argue that secularism must be crucially understood as a questioning power, as a modality of power that operates through the activity of

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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? And 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.

chapter three

A Paradox of Islamic Authority in Modern Egypt

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n 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. Secularism is therefore a questioning power, involved in a process of continual questioning facilitated by the precariousness of its own normative categories. 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 distinctively modern legal conditions upon which secularism as a problemspace 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,

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that is, what its point was. To which they responded cynically: the point of law is to keep 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. Annoyed 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 offhandedly remarked that maybe we should just rid ourselves of law altogether, and find something else. At this the class erupted once again. How could you get rid of law—they scoffed. That would be anarchy! How 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 have? Then 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 discussions 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, require 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.”1

This passage is noteworthy not only because it states clearly and succinctly the paradoxical combination of the senses of suspicion, necessary legitimacy, and imaginative limit about the law my students expressed, but also because it is of one philosophical thinker who quotes another who quotes

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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 being 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, expectations, 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‘a? More specifically, how has the rule of law configured 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 indeterminacy. 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 impossibility 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 certainly taught us much about legal indeterminacy.3 However, because these paradoxes are claimed features of all human practice, they cannot be said

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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 potential uncertainties of a particular practice become a source of perceived paradox, a focus of collective anxiety, and an object of systematic elaboration 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 conceptual, 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 generally 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. And 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 comparative 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 respect 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.

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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 liberal 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 Al-Azhar 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. All 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 Azhari 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. At 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 remains 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 implementation of the rule of law. On 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

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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 understood 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 indispensability of the Shari‘a to the courts and yet not feel bound to those court decisions 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. And the fact that it is found with the courts and not the Fatwa Council indicates 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 different 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. Two crucial, 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.

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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 financial 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 welfare. All 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. And 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 comparative 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 suspicion. 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 suspicion, 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.

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At first sight such suspicion is not entirely surprising. After 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 suspicion 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 administrative. 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 sensibility 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, written 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 orphaned 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

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had to have a document stating the religious identity of each child. Statements 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 documented, 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 misplaced, 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. And that meant that the nafs courts had already presumed them to be Muslim. But the nafs and the mal courts are relatively independent 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 religious 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.

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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 otherwise 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 pronouncement. 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 ensued, 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 pronouncement. 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 pronouncement 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

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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 hesitated in a way that might have been a cause for suspicion, but that suspicion 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 easily 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. As mentioned above, the third pronouncement of divorce precludes any possibility of reconciliation, 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 pronouncement. 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 pronounced 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. He 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 gotten a fatwa earlier, why didn’t you go with it?” They responded that they

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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. After 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 behalf, 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 marriage — 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 grandchildren 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 portion of the land from their parents. On that fatwa, the family refused to

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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 reconcile 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 illegitimate. 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 support (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 successfully 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,

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have no identifiable institutionalized enforcement mechanisms, yet are taken very seriously by those who receive them. These incidents, taken together, highlight a number of seemingly paradoxical differences. The 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 embedded 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. Though 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 compliance problems that arise out of enforcement loopholes. The 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 enforcement, people take fatwas they ask for very seriously. The Fatwa Council is, of course, not a law court, and should not be mistaken 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 from 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, despite that there are none? And why does the former have so little apparent 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. As 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 absolute 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

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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 something that is both true and extremely important. As this example suggests, relative 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.11

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 overwhelming suspicion, neither do 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 Council (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 Council, 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. And that in comparison to the judgments of the courts, people receive the fatwas of the council with far less cynicism and far more seriousness. Although 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 suspicion 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 intuition—as when I highlight the convergence between the considered pronouncements of social theorists and the un-thought-out intuitions of diverse undergraduate 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 milieu. Attitudes 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 possibilities of Shari‘a justice being delivered by personal status law. That this

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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 action—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 together help form the grounds of the secular—which spans the divide between 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 secularisms.12 But while there are no doubt varieties of secularism, the key to understanding 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 status 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 And yet one might object that the stated differences are not paradoxical at all and are easily explained. One might, for example, be inclined to explain them by noting that law, as manifested in the courts, involves adversaries. 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 material 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 truth— even if that truth is only a construction of its

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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 willing, 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. On top of that, the mufti directly accesses, or claims to directly access, classical 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 questionable. 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 plausible. Yet it is precisely this plausibility that is misleading. And 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

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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, contemporary judges in liberal legal institutions describe and understand themselves 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 demonstrate 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 factfinding. 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 developed 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,”15 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

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Frisch has shown how judicial witnessing in medieval France was not primarily 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 witnessing 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? Or 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. As I mentioned above, it was only a century and a half ago that they inhabited the same space of action and sensibility. However, through modernizing state reforms, the fatwa was gradually 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 became 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-ayta¯ m).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

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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. After 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 On 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 distinguished mainly in terms of its coercive character and authority is defined as willing obedience irreducible to coercion, then the concept of legal authority becomes something of a contradiction in terms. And 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 coercive 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 assumptions about the self that has come to prevail in contemporary liberal thought. Among 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 appear paradoxical (one can only either obey oneself, or else be coerced by another), but also coercion and free choice are positioned as irreconcilable 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

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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 completed. 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. All of this creates intractable difficulties for liberal legal thinking on the question of legal legitimacy. For it tends to construe law as subsequent 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 historically cultivated sensibilities whose cultivation depends integrally on modern 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. As 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. And that is why one cannot simply say that the fatwa is more authoritative than the judgment because 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-à-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, Al-Azhar has long been under state control and has a curriculum authorized by the state,

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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 Al-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 codification—a mark of modern law—will 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 traditional authority help to explain, in even a cursory way, the relative differences in authority under discussion here. The personal status law, for example, displays many of the crucial characteristics of what we call modern 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. On 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 predictability, 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 All of this confounds any simple distinctions or oppositions between modern and traditional authority and immeasurably complicates them both. These, then, are some of the reasons why I find the proposed explanation inadequate to the differences in authority between fatwas and personal 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 explanation is that it presumes the standpoint of liberal law’s valence, the very thing I wanted to investigate in the first place.

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With this the paradoxical differences in authority between the personal status courts and the Fatwa Council of Al-Azhar become even more pronounced. How then to proceed? We can begin by considering more carefully 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 The rise and consolidation of the modern rule of law should not be understood 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. While there is some literature that documents the emergence of a diffuse and increasingly 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. The 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. As 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. One theorist who has remarked on modern law’s suspicion is Talal Asad. He 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 organized suspicion, incorporate margins of uncertainty. Suspicion is like an animal, “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

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I do not think Asad’s statement should be understood to mean that the suspicion of the law exists solely in an active mode—that 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 between 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 application is a source of anxiety or concern depends on historical, and not purely logical, conditions. And 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. As 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 accused, 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 application 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. At 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. As I will argue here, these conceptual and affective affinities must also be understood as part of a distinctive structure of suspicion, whose modalities 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

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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 arbitrariness. 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 impartiality 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 Constitutional 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” (taqlı¯d al-taqa¯di). 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 structured 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 understanding 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. One could feel the fear and anxiety that one often saw on the faces of clients. The judge, in

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most instances, would not outright humiliate clients, but a sense of humiliation 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. Even 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 immune to his severity. In between cases, before clients entered the courtroom, the judge 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. At first I thought this was a persona he donned, just for show, but as I attended 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. He would often work one or two hours overtime. I would stay the entire time; afterward the judge would give me a long stare. Then he would declare: “I am a bit harsh (qasi), isn’t this so?” 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. The harsh, stern manner of the judges was one of the ways they embodied the public virtues of neutrality and impartiality. 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. Asad, 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

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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 judicial 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. The 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. The 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 h a¯gib (court usher); once inside they would ˙ greet me with cordial smiles and nods of acknowledgment. The demeanor of distance also came up in an interesting way during my discussions with Khalı¯l, a highly experienced lawyer who had become a friend during my fieldwork.4 Khalı¯l had just begun working as an official of the general prosecutor ( al-niya¯ba al-‘amma) in a governorate in southern Egypt. The 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 police 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 niya¯ ba: 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 general 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 police” 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

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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,” “district 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 investigated, 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 authority to suspend investigations and “file” cases, as well as to recommend that a case be brought to trial. The niyaba is considered “indivisible.”5

As 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, Khalı¯l explained to me that there has been much debate as to whether it is really part of the executive branch of government. This is because all officials of the general prosecutor are representatives of the general prosecutor himself and must obey his orders. The general prosecutor, in turn, must obey the orders of the minister of justice, who is part of the executive branch. Since Khalı¯l 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 The 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. The general prosecutor thus stands ambiguously between judiciary and executive power—an important point to which I will return later in the chapter. Despite this ambiguity, an appointment to its office is typically a first step toward the position of judge, to which Khalı¯l very much aspired. He 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

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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 acquaintance because that would give the impression of bias. It was very important, he said, to maintain the appearance of impartiality (hia¯ dy), ˙ and he interpreted this in terms of an enacted display of distance and disinterestedness.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 neutrality and impartiality, and the reality of acquaintance or knowledge, produces—when combined with judicial suspicion—an interesting set of problems. Khalı¯l spoke to me of his job’s many challenges, and of the insight required to discern the truth in a situation out of the complex set of motives and testimonies that arose from the densely interwoven relationships within the community in which he worked. Not everybody had the sharpness and capability of Khalı¯l, 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 experience from which he emerged bitter and disillusioned. He said that the fact that many people lied, exploited their influence, and manipulated witnesses 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. On 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 otherwise lucrative career in the general prosecution.

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The instances I have described above show up an apparent gap between the enactment of justice—as expressed in the public ideals of neutrality and impartiality, and the appearance of it— 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. On the other hand, strict adherence to judicial procedure in order to maintain the appearance of justice risks failing to capture the complexity of the situation 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 distinction between appearance and reality but to point to a historically particular 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 wrong—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, contours, 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 performed, 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 knowledge, anxiety, and elaboration in relation to power.11 As 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.

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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 distrust 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 prices—for 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. And 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 manipulated spurs on legislation intended to mitigate legal abuse. Such legislation rarely succeeds, however, as it opens up new possibilities for manipulation, 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 suffering. 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 rights—such as the retention of the dowry (mahr), alimony during the specified waiting period (nafaqa), and financial compensation (mut‘a)—that typically go with a standard divorce. Although a practice derived from and sanctioned by the Shari‘a, the khul’ provision was widely opposed and hotly contested, not least because most

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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 divorce 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 personal lives, all because they did not know if they would ever succeed in finally obtaining a divorce. And 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 stratagem 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 advantage from her husband and subsequently marry another man. In such cases, they would make every effort possible to secure the husband’s financial 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’zu¯n) 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 century, 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 forbidden, as it was sanctioned by the Shari‘a, the courts were forbidden from

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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 regulations, 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 involves 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 litigants in full. And yet the exploitation of such allowances can easily subvert 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 resolution of a dispute. Thus legal procedure, which was intended as a protection, 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 without 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. And even after the judgment, there is the issue of implementation (tanfı¯dh); 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

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al-tanf ¯ı dh) to enforce judgment. As 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. All of this illustrates a particular phenomenon, what I see as a looping 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. And 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 exhibited 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 khul’ provision changed the way marriage contracts were subsequently written. 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 generalized phenomenon that Foucault identified of liberal traditions. The incessant 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 governmentality 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. Governmentality is thus a process that involves an increasing legalization of social relations.16

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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 legalization, the authorities they traditionally embodied come to be imbued with (and eroded by) the very suspicion and distrust that the law engenders 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 under 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 exception— 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, indeterminacy, and sovereignty through his explorations of the sovereign exception.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 sovereign 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 image 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

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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, Jewish, Islamic—and their relation to life. Consequently, the relationship between 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 essence that transcends time and place. I, however, would like to emphasize some of the historical features of the relationship between governmentality 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 producing 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 aspect of the Shari‘a, under a subject called makha¯ rij— or “exits.” This was a literature about loopholes (h iyal )19 —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. On the contrary, it was about how to effectively use them. Neither was this a clandestine literature — it was considered perfectly legitimate. Loopholes 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 loopholes 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

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suspicion that accompanies modern legal practice, which tends to see loopholes 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 makha¯ rij 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 law—it is felt—will become subverted, order will dissipate, 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 modality 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 makha¯rij 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 associate 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 police 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 inadequate evidence. The investigations, however, were continued not so the police could raise cases in the Shari‘a courts. Rather, the investiga-

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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 increasingly justifies the use of emergency measures, and thus the assertion of sovereign power. As 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 variable temporal rhythms of everyday life. Governmentality, through law, is always temporally out of joint with the domains of everyday life that it encompasses. The disjuncture between the delays of an increasingly complex law and the speed of everyday life can thus always be used to justify emergency measures and the establishment of discretionary agencies authorized 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 provisions that authorized presidential emergency powers. The claim was that the inadequacies of the personal status law represented an immediate danger 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 chapter 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

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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 Abu 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 attention to the question of suspicion. As 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. As 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 concern 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 Abu 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. As a result, hisba acquired a different sensibility of suspicion, one that was characteristic 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 unclear just which actions or activities those might be, for the court had not provided any criteria for determining this. Notably, Abu Zayd’s academic writings offered one interpretation of Islam, one that arguably had antecedents within Islamic tradition. And yet it was precisely for these writings that the court judged Abu Zayd an apostate, and that he was legally separated 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-

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gal, was one source of the enormous anxiety the hisba judgment provoked. The Abu 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 Abu 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 consistent 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 prosecutor.24 As mentioned earlier, the general prosecutor has very wide investigative powers, is charged with protecting the public interest, and has the right to intervene in cases that concern the public order or public morality. 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 indeterminacy 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 Abu Zayd judgments. It had become part of the already vast investigative powers and forms of organized suspicion that characterize the general prosecutor’s office. Also, 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 indeterminacy of hisba nor the suspicion that came with it. The legislation only placed hisba within the structures of the state—and ambiguously between

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judicial and executive power. As a result, both Islamists and liberals opposed the new legislation: Islamists, because it denied them their courtsanctioned 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. To better understand how this modality of suspicion is structured, it is important to pause here and return to a central passage from the Abu Zayd 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‘tiqa¯ d). 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 not. . . . 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 (‘aqı¯da) 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. On the basis of this distinction, the court took only

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Abu 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; finding them to be similar, it thus pronounced him an apostate from Islam. Many commentators on the case have remarked on this separation between 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. As 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 are—as it did with Abu Zayd.25 Acts and expressions of belief are therefore objects of especial suspicion for potentially harboring ulterior, corrupting motives. As 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 Abu Zayd was writing these books, but that he was teaching 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 freedom 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 becomes 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 central criteria in US jurisprudence for determining the genuine religiosity of acts and expressions. They parallel the ones found in the Abu 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 Abu Zayd case, this

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was the question of whether these acts and expressions were authorized and mandated by orthodox religious texts.26 In US courts there seemed to be a disposition to presume the sincerity of litigants’ religious belief—a presumption that may be due in part to a traditional American 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 freedoms—a prerogative that it has exercised.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 investigate 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 freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure involved in the wearing of the veil—a concern that entailed knowing about the circumstances of people’s private lives. But if the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore not essential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.30 But even as a personal belief and choice not necessarily mandated by religious authority, the state still construed the veil as an essentially religious and fundamentally Islamic sign. For state officials it indicated a will and a desire to manifest one’s Islam. Some 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 investigation, Talal Asad 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 subjectivity—and that this is facilitated by resort to a certain kind of semiotics. A

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governmental commission of inquiry claims to bring private concerns, commitments 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, encourages 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 motives is a practice of suspicion becomes fully evident when it comes to Muslims 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 Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While 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. And 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 freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee. These examples highlight a distinctive structure of legalized suspicion. On the one hand, private belief and public act /expression are made separate, but on the other they are brought together in order to define and defend religious freedoms. Even though the act /expression is considered separate, it comes to be characterized in relation to private belief in order 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. As such, it can become 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. What is interesting is that it brings together two tenets under the pretext of religious freedom: a vigilance against power and its abuse—a fundamentally liberal tenet, and a desire to draw a line between religion and material power—an ostensibly 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.

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The passage of the Abu Zayd judgment cited above brings this contradictory structure of suspicion into the boldest relief. At one level, Abu Zayd’s written statements were taken at face value — to say what they mean — and 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, Abu Zayd’s words are paid extra attention, meaning more than what they say, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—must be defended. In this case, the court did not actually investigate Abu 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 Abu Zayd judgments and subsequent legislation, has come to embody precisely this structure of suspicion, and the discretionary 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 status 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 investigation 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 Abu Zayd. To focus on literal statements, however, is to risk failing to capture the complexity of people’s individual religious lives. As 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 dilemma highlighted earlier in this chapter: between the enactment and the appearance of justice. The more zealously the judge or prosecutor investigates, the more abusive of justice he might seem to be. Yet if he falls back

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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 Abu Zayd judgments to show how hisba has come to embody a distinctive structure of suspicion. As a result of the judgments, hisba became a power potentially threatening an entire domain of private rights. In restricting its use and absorbing the indeterminacy 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 suspicion. 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 defense, it has become an essentially secular principle. As a result, the question 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—indeterminacies 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 characteristic 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

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justice. As 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 another 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 (harı¯m)” to phone. As 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 (h arı¯m) with ˙ all sorts of problems.” Any 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, feminist lawyers in Egypt are always most concerned with the state of personal status law. One 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. As 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

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that it is a space that women own, or in which they have a voice— on 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. As 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 status 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‘a? One might cite a straightforward reason for this: laws can be changed while fatwas and their content, because of their multiplicity within quotidian 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. One 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. Any consideration of women’s legally prescribed rights and status must therefore include how such rights and status affect the harmony of family relations, and consequently, 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

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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, society 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 manipulation 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: (1) society must be protected; (2) the harmony of the family, as the integral 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 images 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 agendas, 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

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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 opponents 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 distrusted. 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. As 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 ensured 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 debates 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’ jurisdiction solely to those issues now defined as family matters. At 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 affective affinities forged by these transformations were discussed at length in chapter 2. However, the 1897 reforms also introduced something of crucial importance 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

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al-ta‘a, husbands could subject their wives to the violence of the law. At 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 understandings and interweaving of liberal concepts of family, of the Shari‘a, and notions of the public order.37 As 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 (maja¯lis milliyya) as well. Legal historian Amira El-Azhary 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 defense 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 interference 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).38

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 practices — like 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 (indha¯r 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 itself—that 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

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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? Or 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 various 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 modern 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 impossible 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 different 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

I

n 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 suspicion 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 understand 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 Al-Azhar Mosque, who were all studying 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-

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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 divorce 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. And anyway, the older sheikh asked, why would you want to be with someone who hates you? The man had no answer for this. After 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. No one noticed when he got up and left. I first became aware of the importance of the fatwa through this incident. 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 typically were, with the exact words the husband uttered to ascertain if they

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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. The 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 lacking 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 As little as there has been written on the suspicion that pervades the modern 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 doctrinal creativity and change.1 The emphasis is on how the fatwa adapts otherwise 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 understandings, 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 ijtiha¯d—ijtiha¯d being a form of doctrinal interpretation

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that was relatively unconstrained by previous doctrinal rulings. All that was left to muftis after this was taqlı¯d (imitation), that is, the reproducing of previous rulings. Without the creativity intrinsic to ijtiha¯d, the gap between doctrine and practice became an irremediable problem in Islamic tradition, one that has grown particularly acute with the rise of the modern 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 ijtiha¯d was not as widely held among Muslims as Schacht had presumed.3 Since Hallaq’s article, scholars have sought to show how ijtiha¯d continued on, especially in and through the work of muftis and their fatwas.4 They have also argued that even without ijtiha¯d, muftis have always been quietly, creatively adapting ostensibly rigid doctrine to everyday needs under the guise of taqlı¯d, 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. One 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 controversial, 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. At 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 fatwas as doctrinal pronouncements, as formal judicial opinions and thus a species of law conventionally understood, this view of the fatwa also undercuts 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 persuades its recipients of its doctrinal conclusions, ignores the fact that most fatwas do not include their specific reasoning and so are not involved in

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persuading people about correct points of doctrine. And thus the emphasis 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 unnecessarily complicates the question of the authority of the fatwa, creating a puzzle of its own that it rarely ever addresses, or ever really recognizes. The puzzle can be put like this: how does the fatwa retain its authority based on the claim that it only, or mainly, applies time-honored doctrinal rulings (i.e., taqlı¯d) when it in fact continually changes them (i.e., through ijtiha¯d)? The few attempts to explain this apparent puzzle commonly resort to the idea that there is some sort of manipulation or deception— including possibly even self-deception— on the part of the mufti, often for the purpose of securing a set of predefined interests. Such explanations, however, only make 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 who cleverly shapes doctrinal material to craft a fatwa that accords with them. As 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 Sherman Jackson7 on a fatwa given by sixteenth-century Cairo mufti and judge Badr al-Din al Qarafi. Jackson writes, with respect to taqlı¯d, Rather than a return to scripture directly in an effort to effect new interpretations 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 inventing — 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. He posits construction within already 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 been equally possible to assert that the mufti discerns in the doctrine already existing distinctions, exceptions, definitions, and such that

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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. On 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 contend 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 hadith. . . . 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 mashhur 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

But which one is it? Does the mufti reconcile his view to the established 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 contemplated function, Muslim jurists were powerless to abolish existing law. Instead 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 gotten through some kind of manipulation or deception. Thus at one point,

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Jackson notes that “Al-Qarafi 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 overall” (45). To depict the authority of fatwas as essentially manipulative or deceptive 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 between the mufti and his doctrine and renders his relationship to it primarily in terms of instrumentalism. In treating interests as essentially given, this view of the fatwa precludes an exploration of how interests (and desires and passions) might be constituted and shaped through the doctrines, the practices, and the broader tradition to which the mufti and the fatwaseeker 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. About 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 doctrinal creativity. The first assumption is that tradition, rooted in imitation and emulation, 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 criteria 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

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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 fundamental rift between the past and the future, in that the future generally brings on fundamentally new situations and circumstances, not just different from past ones, but always potentially containing elements that are irreducibly different. And 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. And that, in turn, is to risk becoming increasingly irrelevant as irreducible 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 certainly make sense after the initial founding and early expansion of Islam. Under the temporal assumptions commonly associated with a modern historicity, 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

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extensively, argues that it was a means for taking positions on controversial 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. Under such assumptions, other skills and capacities might be prized over and above creativity. Notably, among the muftis I talked with, creativity was never a qualification 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 contains 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 creativity.16 At 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 associations 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. As 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 notion of freedom— of a primarily aesthetic kind—now widely considered integral to the self and its true expression.18 In other words, the idea that creativity is requisite to a tradition’s success is a product of specifically modern assumptions about time as well as the self and its essential freedoms. They are, however, neither as selfevident as is often surmised nor the only ones to which people adhere.

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As noted above, contemporary Islamic debates that presuppose a future of continual novelty coexist with understandings of the present and future 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 authoritarianism. 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. Any authority 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 questions, both of the fatwa and its authority. If it is not that the future necessarily brings on radical novelty; if creativity is not necessary to supplement the accumulated wisdom of a tradition, then the fatwa cannot be so selfevidently 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 practice 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? And 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 practice of the fatwa, and how do they relate the mufti to the fatwa-seeker, and

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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 advances 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 necessary; that even those concepts within the Islamic Shari‘a that were considered 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 umu¯rohom). Sometimes, they said, it was necessary to use a marginal concept or ruling from the Shari‘a in order to do just that. Different muftis reiterated 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 allowing the questioner to talk at length. There was a sense that he was fashioning his answer to the specific situation of the questioner. This may have partly explained why sometimes different answers were given to similar questions.

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Questioners well understood the sense that the purpose of the fatwa is to facilitate people’s affairs. Often, when couples were trying to reconcile 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 threetime 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. He 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?” “Eh—I mean—what 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-nika¯h). 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 together 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. “When?” She replied that this was during the third and the fourth pronouncements. He slid the Qur’an from the husband to her, told her to swear with

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her hand upon it that she was on her period during these pronouncements. She hesitated. “What now?—you must be lying,” exclaimed the mufti. “No, no just unsure,” she laughed, and explained, “he pronounced divorce 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 interacted 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 reconciled 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.” After discussing more of the particulars, the mufti came to the conclusion that none of the pronouncements 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

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to the Prophet to know if there was anything that could be done to reconcile 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 situation. He replied that he had none. She returned yet again on the third day, but again, nothing. On that day, however, after she left, a verse of the Qur’an referring to the incident was revealed, saying that God had heard the complaints of the woman to the Prophet, and had provided the following 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 (addib lisa¯nahom), and this was among the hudu¯d Allah (limits of God).” ˙ Hudu¯d is usually referred to in terms of punishments—but here the mufti associated it not with punishment but with disciplining. That hudu¯d 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 considered sufficient to reconcile his wife to him. It is noteworthy that divorce, though it is permitted in Islam, is considered among the most reprehensible of permitted acts (makru¯h). As 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 patience 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. As 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 words—a promise to pray, began to cry silently; his voice shook as he finished, lips trembling, repeating the

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mufti’s words. The mufti in this instance was using the event of reconciliation 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 husband 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 signifies 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 (khalla¯ni ahis bi shaba¯bi).” 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 reprehensible (makru¯h) acts to prevent them from doing forbidden (hara¯m) ˙ acts. There was the instance of a young man—apparently an orphan, a third year student at Al-Azhar 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. “Why 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.” He replied that she was already married. “Ho!” 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

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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 ablutions, and they prayed the noon prayer together. Afterward, the student signed the statement and got up to leave. As 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-‘amala¯ya-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.” An official of the council who had been listening to their conversation interjected: “Yes, of course! These desires are natural to the human being. God 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 dispenses 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

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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 opposed 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 discussions 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 Egyptians—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 haya fi-l-dı¯n).” In many instances the mufti would ˙ counsel the questioners about virtues like patience, forbearance, reconciliation, and then turn to me and ask, “isn’t this so?” In other instances,

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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 situation. 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. And 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 responsibility for it. This raises another important point. It matters how the mufti conducts his inquiries. The inquiries themselves are not, for the most part, routinized, 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. One 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. At this the mufti became hesitant, unsure of whether it was possible for the two to be reconciled. The other man, who turned out to

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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 impossible. The brother, however, continued to insist that this counted as only a single divorce. At 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. After 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 community) 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 display 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 displayed 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

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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 conceptions 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 ijtiha¯d 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 Al-Azhar by adapting the notion of “the care of the self.” As 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 ideological inversions that characterize his work—is 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 precisely through its form of individuation. Consequently, Foucault tries to find different forms of individuation—through alternative practices of the self—in an attempt to refuse the kind that is brought on by, and is a vehicle for, the historical mode of power he analyzed so acutely. Since power,

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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 refusing 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, nevertheless 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 authority of the mufti is that of a guide. We can put it this way: a typical question 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 responsibility 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. As the ethnography here shows, the fatwa is involved in a practice of tarbawayya— ethical cultivation, that is highly attentive not just to questioners’ particular situations but also their weaknesses, drives, desires, hopes, fears, and sufferings — 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 replied in the affirmative. When confronted by the contradiction, the mufti said, “As for the first—I saw in his eyes a desire to kill [someone] and I

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prevented him from it; as for the second—he came in surrender, having already killed [someone] and I did not cause him to despair.”23 The 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 emphasis has been to explore and detail the diverse practices of ethical cultivation 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 self—by the self and by others—in order to cultivate and sustain the requisite virtues. (That is one reason why they came with careful safeguards against the undue suspicion that would undo the very virtues they aimed to cultivate.) The fatwa of the council, however, implies no such constant vigilance 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 immediacy 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.

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Concerned with the issue of tarbawayya, involved in “facilitating people’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 tarbawayya, 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 (salih¯ın). Following the sheikh’s words, he set out toward ˙ the town, but died along the way. At 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. As they measured, however, God 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 destination. One’s place on that path, however, is always rendered uncertain, but this is not because endlessly, irreducibly “new” 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. And 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 discerningly 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.

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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? And 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 specific, 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 accompanies 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. As law becomes more widely entrenched, it becomes more widely distrusted. And as more social relations become more intimately legislated, they too become subject to the suspicion, distrust, 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 creates 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 introduces new ones that then invite even more intervention. As 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 produces spaces of exception wherein it constantly expands its range, and through which sovereign power asserts itself with ever greater force and

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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 discussion of hisba, and how it became a state power of unspecified range, an ambiguous expression of both judicial and sovereign capacity, indeterminate 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 paradoxical authority, and how it thereby became entangled in ambiguity, suspicion, 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 particular 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 possibilities, their structures of authority could not be more different. And while the suspicion evoked by the Shari‘a (and religion more generally) and the frameworks of its politicization—marriage, family, and gender—are 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

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arose during the debates on personal status reform in Egypt are not unfamiliar, as they also resonate with current debates on, and the connections 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 impetus 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 legalmoral 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 political 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

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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 political theological claims acquire the force and efficacy they have (a subject to which I will return in the next chapter and the epilogue). As 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 practice 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. As 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 between public order and family; it does not express the same forms of suspicion, 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. And 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-

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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 disengaged from it. And though disengaged, the council is not, however, explicitly 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 distinction 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 postsecular 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. And 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. Explorations 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 situation 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, indifference to the questions and stakes that constitute secularism as a problemspace, 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.

chapter six

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 café next to the Court of Cassation, right across from the Gamal ‘Abd al-Nasser metro stop.1 Since I was a regular at this café, often spending long periods of time writing up my field notes, the café’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). At first I refused, indignant, but to prevent further trouble and the stigma of getting kicked out of the café, 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 ‘Abd el-Ma¯ged, 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

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emergency powers to detain indefinitely thousands of people suspected of being involved in Islamic groups allegedly committed to the violent overthrow 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 between 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 lan­guage was critical of the notion of the human subject as essentially a sub­ject 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 apolitical, 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 ambiguous 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 religion, 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 lawyers’ 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 ‘Abd el-Ma¯ged 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.

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The Discourse of Human Rights Although ‘Abd el-Ma¯ged identified himself as an Islamist, the one who put me in contact with him was a leftist lawyer with well-known activist credentials. The two greatly respected each other despite their very different 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, had—so 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 differences, however, lawyers of all factions had worked together, in some cases representing each other in litigation, and all retained a strong commitment to the legal profession and the ideals of the rule of law. For all the strong friendships, growing cooperation on syndicate matters, and general commitments to the legal profession, ‘Abd el-Ma¯ged 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 organizations began to proliferate in Egypt (also probably due to the vast growth of outside funding for NGOs) 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 detainees. 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.

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Thus ‘Abd el-Ma¯ged saw these leftist lawyers and their organizations, with their claims about the pursuit and protection of human rights, as hypocritical. At best they were just out for their own, at worst for themselves. ‘Abd el-Ma¯ged’s accusations reflected the detailed criticisms of another well-known Islamist lawyer: Montasar Al-Zaya¯t. Al-Zaya¯t was widely ˙ known as a lawyer who specialized in the legal defense of Islamists against the government. Although not formally a member of any Islamist organization (all of these organizations are legally banned as independent political parties), Al-Al-Zaya¯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 organizations 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 during 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 (instead) 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 human 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

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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-Zaya¯t’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 highlight 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 NGOs in Egypt, such as the Egyptian Organization of Human Rights, the Legal Resource and Research Center, the Hisham Mubarak Center, the now defunct Cairo Human Rights Legal Aid, and other such organizations had done (and continue to do) commendable work. But the claims of ‘Abd el-Ma¯ged (and Al-Zaya¯t) did parallel critiques that have since been increasingly made of NGOs, the ways their agendas come to be shaped, their growing power combined with their continuing unaccountability 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 leaving long-standing problems to languish unattended, or sometimes even making them worse.3 With these critiques, ‘Abd el-Ma¯ged’s and Al-Zaya¯t’s claims acquire a ring of plausibility. Over time, however, it seemed more and more to me that ‘Abd el-Ma¯ged was just as hypocritical as the leftist groups he criticized, if not the more so for having criticized them. He and his association, the Association of Islamist Lawyers, focused almost entirely upon Islamist political prisoners, and more than that, only those prisoners who were of their particular political orientation. Thus, for example, they did almost nothing to help the many political prisoners who happened to be from the Muslim Brotherhood. Although 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

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mention it in passing, though, during one of our conversations. He, however, 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. And that left me even more confused. As 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 answered 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? Why exempt yourself but not them? Isn’t that even more hypocritical? At 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 impossible. 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 anyone. 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 As 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 ‘Abd el-Ma¯ged and other Islamist lawyers, one must place it in the context of the strange structure the emergency 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 assurances of a relatively independent judiciary, however, are less than they seem. Their commitment to strictly applying the text of the law and to

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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 constitution. The normal situation is also rendered ambiguous by the state’s increasingly deft use of ostensibly regular laws in ways that simulate exceptional powers. In what follows I detail aspects of the Egyptian emergency state’s complex architecture, with particular attention to its powers of administrative detention, the structure of its exceptional courts, and its simulation of exceptional 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 self—as 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 ‘Abd el-Ma¯ged 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 president 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 extensively 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 worked—the laws for the proper treatment of prisoners require that detainees and convicted 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

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(al-tazallum fi qira¯r al-‘itiqa¯l) 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. Any decision for continued detention is open to a new petition for release thirty days after the decision 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 detention 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 law—Law 98 of 1945 on “Vagrants and Suspects” (al-mutasharridı¯n wa-l-mushtabah fihum). Article 5 of that law identifies a suspect as one who has been subject to an irrevocable conviction 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 penalties 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 promulgated law 110 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

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Supreme Constitutional Court declared article 5 of the Law of Vagrants and Suspects unconstitutional, thereby removing the legal basis for restricting the definition of a suspect. The question, however, remains unanswered 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 defined 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. As 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 (maha¯kim amn al-dawla) ˙ and the military courts (al-maha¯kim 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 defining a different jurisdiction: the first is often referred to as the “regular” State Security court, and the second is known as the “emergency” State

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Security court. Law 105 of 1980 is understood to have defined the jurisdiction 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 issued 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

That Supreme State Security court verdicts can only be appealed to the Court 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 Law 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 effectively 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 commodity price controls based on the idea that these issues affect national security. The 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 structure . . . 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

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basis of . . . 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

The emergency State Security courts display a different structure. Their verdicts cannot be appealed in any other court and are subject to the president for approval—thus he can annul any of their verdicts. The 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 president wishes to transfer to it. The 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. Before 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. To quote Brown again, Egyptian judges are educated in a small number of law schools; it is not uncommon 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 conscious 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’ Club (nadı¯-l-qudaa’), which was established in 1939 with the initiation of the national courts, out of the callings and concerns of foreign judges in Egypt that an independent judiciary be maintained after the abolishment of the Mixed Courts.11 The Judges’ Club habitually held public conferences and published a monthly journal (AlQudah) in order to create forums in which judicial matters could be discussed and debated. The board of the Judges’ Club was an elected one; the

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members of the club also staffed and thus controlled the Supreme Judicial Council, a government body that was officially responsible for administrative matters within the judiciary, including judicial appointments. As 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 procedure. This has led the emergency State Security courts to issue acquittals in a number of high-profile cases, thereby embarrassing government authorities. One example of this was their 1984 acquittal of alleged members 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 military 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 degree. 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 Constitutional Court has supported the widest interpretation of the president’s authorized power to transfer cases under it. This last point is just one instance 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 rendered even more precarious, however, due to the potentially wide scope

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given to executive powers through a combination of provisions embedded in the Egyptian constitution, specifically its articles 74, 108, 147, and 136. Article 74 authorizes the president to take immediate action in case of danger to national unity or security; he must publish a statement explaining these actions and hold a referendum on them within sixty days of their enactment. Article 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 Assembly is in recess or suspended, article 147 authorizes the president to issue decrees with the force of law in cases requiring immediate action. However, the decrees must be presented before the People’s Assembly 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 Human Rights Legal Aid 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 represented 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 decrees through the People’s Assembly. One striking example of this, mentioned in the previous chapter, was the 1979 decree amending the law of personal status in order to establish greater gender equality on the argument 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; however, 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

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government to detain and press charges against journalists whose publications 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 Democratic 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 intensity of the uproar, the government referred the law to the Supreme Constitutional 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, ‘Abd al-Ha¯rith al-Madani, was detained by the State Security 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 appointed 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 allies—judges, who were now charged with overlooking their affairs. Within the structure I have just outlined, where the normal and emergency aspects of the law crosscut and at points fuse into each other, lawyers like ‘Abd el-Ma¯ged are the first and last line of defense against the

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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 become targets of the state, then there is little that can be done. Within their work, hope, despair, and anxiety are intimately woven together. 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 interweaving of hope, anxiety, and despair within the state’s normalized emergency structure is well illustrated in the story of ‘Abba¯s and the Lawyer’s Syndicate sit-in.

The Story of ‘Abba¯s and the Lawyers’ Syndicate Sit-In One of the members of the Islamist Lawyers’ Association was named ‘Abba¯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 short—he always wore dark sunglasses and, as he was constantly talking on his cell phone, seemed to exude a cool, distant authority. ‘Abba¯s 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. ‘Abd el-Ma¯ged, however, advised me not to pay attention to him and rarely spoke about him in general. That only increased my anxiety. I thought ‘Abba¯s might at some point accuse me of something due to my American background, interrogate my religiosity, expose me as a hypocrite 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 possible. But the inevitable encounter came. After staring at me pensively from afar for a long time, ‘Abba¯s stood from his seat and approached me. I looked up at him, trying to keep my composure. “You’re from America?”

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“Uh . . . yes . . . ?” He stared at me pensively again. Then he pulled out his cell phone. “See this phone?” “Eh . . . yes . . . ?” “Do 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. “Well—I don’t know, I am not sure.” “Then what kinds of models do they have in the US? And would they work here? Do you think you might be able to get me one? . . .” ‘Abba¯s, 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 ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged had advised me to avoid him. ‘Abba¯s 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 affairs—a judicial control, as I mentioned earlier, that had been sponsored and maintained by the government 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 syndicate 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 government’s stationing of security vans, though blatant, turned out to be a highly effective strategy of intimidation. As each day of the sit-in wore on, the anxiety of a raid only increased. And 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. At times, however, particularly the late afternoons, the numbers dwindled dangerously low. On 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

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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 idea — a practical joke, something to pass the time. They picked up the phone and called ‘Abba¯s— on, of course, his cell phone. Speaking in muffled, authoritative voices and smirking among themselves, they declared that they are the investigative security forces (mabha¯ 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 ‘Abd el-Ma¯ged arrived, they recounted to him, in whispered tones, the story of ‘Abba¯s’s betrayal. ‘Abd el-Ma¯ged 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 ‘Abba¯s, his betrayal, and his character. At that moment, ‘Abba¯s walked into the syndicate, provoking a ferocious explosion of shouting and an argument whose vehemence sent him lumbering out the door. ‘Abd el-Ma¯ged could not defend ‘Abba¯s’s actions. Neither could he defend ‘Abba¯s’s character against his fellow members’ critiques, which ranged from how ‘Abba¯s shamelessly steals other lawyers’ clients to how he lustfully stares at passing women even as he recites the Qur’an. ‘Abd elMa¯ged agreed that ‘Abba¯s 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 ‘Abba¯s. The lawyers continued to criticize, but ‘Abd el-Ma¯ged held his ground. They abruptly broke off their critique and walked away not only from ‘Abd el-Ma¯ged 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 secure its independence from judicial oversight. But the trust between lawyers in the Islamist Lawyers’ Association had been deeply eroded. ‘Abba¯s, though he was disliked for his demonstrated selfishness and distrusted for his apparent stupidity, was nevertheless, due to ‘Abd el-Ma¯ged’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

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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 ‘Abd el-Ma¯ged.

Waiting with ‘Abd el-Ma¯ged I met ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged would work to get power of attorney (tawkı¯l ) for several detainees. Such power of attorney is usually the first step toward filing petitions for release in the state security courts, appeals against detention orders in the administrative courts, and civil suits for compensation 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 waivers for university exams, as many of the detainees were students, or to ensure that the regular payments guaranteed by the doctors’ and engineers’ syndicates for detainees come through, and other administrative procedures from visitation to applying to university. Important as it is, power of attorney is not so easy to get for these detainees. ‘Abd el-Ma¯ged told me not to expect to get home until after sunset. As we started on our way in the crowded bus, its several TV screens flickered on and began to play a bad Egyptian comedy. Bored of the comedy, 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 being a major industrial center, also housed four major facilities: Prison 430, Prison 440, Lı¯da¯n One, and Lı¯da¯n Two, also known as Wadi Natru¯n. The

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first two were prisons, while the second two were mostly for detainees. ‘Abd el-Ma¯ged today would be trying to get power of attorney for several detainees in Wadi Natru¯n. We did not, however, get off the bus at Wadi Natru¯n; rather, we got off at the local Office of the Registry (Al-Shahr al-‘Aqa¯ri). In front of the building we met another lawyer from Cairo—Mustafa—who was a friend of ‘Abd el-Ma¯ged and was also working to get power of attorney for detainees in Wadi Natru¯n. We entered the small building, walked up to the second floor, and there met Zaynab, an employee of the registry who also knew both ‘Abd el-Ma¯ged and Mustafa. After 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 intense concentration and subtle anxiety—much like what is felt in a classroom during the final exam. At 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. ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged and Mustafa were filling out were forms documenting 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-Mahfu¯za¯t); 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 attorney 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

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all then set out in a car, with a driver, down to Wadi Natru¯n. 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. And there we waited . . . and waited . . . and waited . . . and waited. About three hours later, ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged 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. And all this takes a lot of time. The important thing about Zaynab, he told me, was that “her work was clean” (shughlaha nadı¯f ), that is, she did her job correctly and as best she could, unlike other notaries, who never seemed to be able to get the signatures 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. ‘Abd el-Ma¯ged 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’u¯n al-M‘otaqalı¯n) to get permission to obtain 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. As we sat in the car we saw a bus approach; a woman and a younger man—her son, it seemed—stepped out of it. They were carrying two boxes of clothes and other items. ‘Abd el-Ma¯ged tried to figure out whether they had come to visit a detainee or one of the few regular prisoners who were confined within Wadi Natru¯n. After 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

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prohibited for detainees in order to prevent any unmonitored communications with the outside world. Lastly, ‘Abd el-Ma¯ged noted that the woman’s clothing was colorful, in contrast with those of the Muslim Brotherhood or the Islamist groups. ‘Abd el-Ma¯ged 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. But most lawyers tried to avoid that as much as possible, often asking the families of the detainees to get or deliver information concerning them. Whether for families or lawyers, visitation was a most frustrating and exacerbating experience. Here are some descriptions of visitation experiences, by the lawyer Montasar Al-Zaya¯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 resting 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 from 5 a.m. in the summer heat until at least 3 p.m., when the first batch of visitors 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

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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. ‘Abd el-Ma¯ged told me that these were detainees who had either been released or transferred to another detention center. He 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 ‘Abd el-Ma¯ged what the point was of trying to free detainees when they just got sent back? He 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 particularly abusive guards; a change of place helps lift their spirits a bit. At 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. And so began the first glimmers of understanding that eventually led to the chapter that you are now reading . . . Zaynab emerged out of the prison. In the car, she handed ‘Abd elMa¯ged 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 Office 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 Mustafa and walked together toward the metro stop. ‘Abd el-Ma¯ged turned to me: see how difficult this work is, the way we suffer when we do this work? He 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 exhausted—my body felt slow and heavy as if I were suffering from jet lag. ‘Abd el-Ma¯ged 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. No thanks.

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It dawned on me that ‘Abd el-Ma¯ged 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 hearings, 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. ‘Abd elMa¯ged’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 difficulty of the work that ‘Abd el-Ma¯ged 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. No wonder that ‘Abd el-Ma¯ged 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. As he said, one would have to be a saint, or purely a lawyer—that is, more than human or less than one—to 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. As 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 associated with. That is one of the reasons why ‘Abd el-Ma¯ged refused to allow ‘Abba¯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 ‘Abd el-Ma¯ged also helped me make better sense of some of the writings of Islamist lawyer Montasar Al-Zaya¯t in relation ˙

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to his sharp criticisms of human rights groups, which I had quoted earlier. In the same book 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 (‘onf asli) 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 them. . . . I am one of those who defend the Islamist idea and who are from the sons of the Islamist movement.19

My trip with ‘Abd el-Ma¯ged, along with his explanations, helped me understand how Al-Zaya¯t could in the same breath criticize the biases of human rights groups and yet openly acknowledge his own. It was not that ‘Abd el-Ma¯ged 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; ‘Abd el-Ma¯ged, for example, envied the respect he thought lawyers were given by the US judiciary. But he saw himself as both a lawyer and a Muslim, and while this presented no 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 cases—such as cases involving drug use—because they tended to put one in contact with people and situations that could potentially corrupt a person. He also understood his actions as providing a model in the Lawyers’ Syndicate for how a lawyer should act.

Zulm ‘Abd el-Ma¯ged acknowledged that for all the effort he put into this work, it brought little financial return or political success. Why, then, continue

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it? Besides being a way of offering a small hope for the detainees and their families, ‘Abd el-Ma¯ged 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 fellow 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. The notion of zulm is not an explicitly Islamic concept, and neither did ‘Abd el-Ma¯ged self-consciously evoke the term as an explicitly Islamic one. Nevertheless, it can be and often has been made to resonate powerfully 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 detention as one of the forms of trial and tribulation that distinguish the way of the Call (tarı¯q 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 opposing 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 (niza¯m za¯lim) and despite that detention constitutes an oppressive, unjust order, 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

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That the concept of zulm ‘Abd el-Ma¯ged invoked has a powerful Islamic 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 lawyers 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 associated 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 practicing 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 importance 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

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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 inappropriate 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 ‘Abd el-Ma¯ged employed such discourse often, even if somewhat cynically as part of a legal repertoire. In one civil compensations suit before the court, ‘Abd el-Ma¯ged 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 ‘Abd el-Ma¯ged and other Islamist lawyers, was nevertheless a legal discourse, and as such had some influence on the judge. In this case, ‘Abd el-Ma¯ged 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. Human rights, by contrast, though essentially a legal discourse, was used—as in the case of ‘Abd el-Ma¯ged above—to 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

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abstract rights and obligations than one of specific associations, commitments, 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 traditions, 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. As 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 ‘Abd el-Ma¯ged’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 exceptions—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 communitarian 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. And that consequently there will be greater emotional 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

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that permits the perpetuation of various inequalities, indignations, and cruelties. Yet the argument is not that the range of rights set forth by international human rights discourse should therefore be narrowed. On the contrary, as mentioned earlier, Islamist lawyers support nearly all of the rights set forth in the UN 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 human 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 sensibilities 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 UN 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 discrimination. Gender segregation within a bus, or within the seating arrangements of a classroom, however, would definitely raise the question of discrimination. In another vein, a case of attempted or successful censorship 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 UN declaration. Involved in these differences are variable and deeprooted 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 protection 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

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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 cannot 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 selectively 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. On the other hand, Islamist lawyers are not at all ambivalent about those principles espoused in the liberal rule of law that are central to human 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 committed 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 possible 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 narratives that constitute both its legitimacy and the cohesiveness of the state, and which are reflected in notions of “the public order.” The public order 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

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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 equality, is nevertheless rooted within a state that must both define itself and promote a level of cohesiveness through particularist narratives. The sensibilities 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 freedoms—the tensions between legal equality and majority sensibility. Within legal doctrine, the public order is seen to be a fundamentally flexible concept because it is acknowledged 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 sensibilities 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 tolerance, 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

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constitute an independent discourse, but one that is dominated (and enabled) 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. And this, in turn, explains why Islamist lawyers were able to use Qur’anic verses to facilitate the liberal 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 cohesiveness. 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 motion. 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 Café . . . ‘Abd el-Ma¯ged never arrived. As our friendship had grown, he had become more and more lax with our meeting times, but this was the first

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time he just didn’t show. It had been over an hour and a half already; the ice cream had since melted, and the café 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 café. I decided not to even call him. Two days later I got a call from ‘Abd el-Ma¯ged. 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 ‘Abd el-Ma¯ged 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. He 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 detainees. 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. After telling me this, ‘Abd el-Ma¯ged sighed and said that as he was sitting in the jail, he kept on thinking that nothing could be as bad as Egyptian 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 US prison life is like with a rare depth of knowledge and an intensity characteristic of Baca’s poetry. I suggested to ‘Abd el-Ma¯ged that we watch the film together, and that I would translate for him. That way, he could better compare US and Egyptian prison life. Watching with growing astonishment the prison scenes unfold, he kept on asking me: this happens in the prisons there? Do they let this happen

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in the prisons there? After a while, he told me to shut the video off, that he had seen enough. ‘Abd el-Ma¯ged 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 US minorities lived under expansive police surveillance and almost unbridled prosecutorial power.31 He sat in a dejected, sunken silence for a long time. For ‘Abd el-Ma¯ged, neither Egypt nor the United States was now any good.

Egypt: An Exceptional State or a Secular Future? Indeed, one wonders whether in fact the situation in Egypt is at all exceptional. Egypt is often described as a repressive, authoritarian state, and many studies of it proceed upon that premise. Its extended state of emergency, 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. Arguments 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 offer no understanding for the nature of modern power more generally. And 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 European 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 Roosevelt’s attempts to counter the Great Depression of the 1930s. Since a long time, according to this literature, the exception has become the norm.33 Exceptional measures have become so profoundly a part of US governance, notes legal and political philosopher William Scheuerman, that one only needs to turn to a revealing 1974 report by the United States Senate—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, ordinarily exercised by the Legislature, which affect the lives of American citizens

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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 constitutional processes.” Even during peacetime, the American president since 1945 has exercised substantial discretion to settle strikes, initiate price controls, limit exports, deal with the exigencies of the so-called drugs war, and counteract unwanted immigration. Nor have recent years witnessed a reversal of those trends that encouraged Senators Church and Mathias to conclude their 1974 report with the observation that “[e]mergency 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 disturbing is how ubiquitous it has become within liberal democracy. Substantial comparative evidence describes similar trends at work in many other liberal 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 exceptional have always been indeterminate.36 Whether 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. And the possibility that it offers lessons for a broader understanding of our contemporary condition. In this regard the relationships between the ostensibly secular and religious 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 noting that political theological claims arise most explicitly and poignantly during states of emergency, whether this be the Weimar Germany of Carl Schmitt’s time or the current “War on Terror” that has encompassed much of the globe today. Is this because the genuinely “religious” core of the state and its significant political concepts reveals itself in full clarity once the veneer of the rule of law is removed?

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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, nevertheless aimed to bring them back into motion. I noted that the concept of public order, its internal tensions and ambiguities, 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 majority 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 principle of secularism and national security is becoming increasingly pronounced. 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. As states of emergency become increasingly normalized, the limits of the rule of law will become more starkly evident. But Egypt has deployed 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 increasingly 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 interwoven with the ostensibly secular legal languages that they critique but nevertheless try to facilitate. A future where the claims of political theology 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

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 o 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 Egyptian 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 former regime. Is there anything that can be learned from these events that goes beyond 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 differences of my approach from some of those that dominate current theorizing on secularism—in particular, the approach of political theology. At the time of this writing, the situation in Egypt continues to change rapidly. No 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 modernization, democratization, and secularization, always liable to serious setbacks 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-

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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 responded to these concerns with assurances that the Muslim Brotherhood had only partial support in the population, were ideologically heterogeneous, would have to rule in coalition with other secularly oriented parties, 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 democratic freedoms and regional stability could be preserved. In this narrative, 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 question, 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 standards are seldom clear, highly contested, and often changing anyway. It

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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 secularism 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 typically identified with liberalism—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 depends 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 intelligibility 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 individual life can therefore be lived. This space of intelligibility is what I call the problem-space of secularism. That the questions and stakes that constitute 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 relatively 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 intelligibility 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 expression 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

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is not indifferent to the question of how to distinguish and separate them. This position puts it at the source of the irresolvable ambiguities continually 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 plausibility, 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 violence—that is, the idea that the violent, sacrificial, and repressive tendencies of secularism 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 problemspace of secularism. But besides confirming conventional notions of religion, 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. And this will remain the case until the question of where to

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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 Armed Forces). Nevertheless, such law-making was seen as necessary to provide a stable foundation for the creation of a genuinely 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 upcoming 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.” At the same time, the new law prohibited 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 prohibited? 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 referendum over a set of proposed constitutional amendments. Almost immediately 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 representative, civilian government. These amendments were to be put to a referendum, and if approved, were to be soon followed by elections. Although

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it was understood that these reforms were deliberately limited in scope, undertaken with the view that the entire constitution would soon be subject 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. And that consequently the winners of the upcoming elections would be overwhelmingly those whose forces were already well organized—in particular, former ruling party members and the Muslim Brotherhood—who would then appoint an unrepresentative constitutional 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 parties— 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 support in terms of “saving” article 2, and thus the explicitly Islamic dimension 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 amendments should therefore be considered a religious duty — an 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 ‘Abd el-Ma¯ged—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 

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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 reform, these lawyers now support it because, again, this fit the spirit of the protest movement, focused on the democratic will of the people. Nevertheless, 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 unrepresentative minority. Moreover, the activists who pushed for these extraconstitutional principles soon came to realize that the military council had a very different idea of what they entailed. It was less concerned with ensuring 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 sovereignty, 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 represents 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 secularreligious 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

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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 problemspace 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 politicaltheological language of justice completely ensconced within the problemspace of secularism and aimed at establishing the liberal legal structures through which secular power worked. The recent protest movement differs 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 different practices, spaces, and movements, some of them readily identified as religious — like the Fatwa Council, others not so easily so— like 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 question 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

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Mubarak’s resignation. On 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 one—no 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. All efforts were deliberately collaborative, 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 of—albeit minor—violence, particularly in defense against police brutality. Rather, as Samera Esmeir and Saba Mahmood 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 terror,” 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 increasingly 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 interesting 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. And that is the peculiar paradox of the protest movement, part of what made it such an extraordinary moment of asecularity. No 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,

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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 manifested was also associated with a genuine ethos of democratic sensibility. In this regard Talal Asad 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 between “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 inclusivity. The latter is jealous of its sovereignty, defines and protects the subjective 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 comparison between sensibility and politics, not to argue that the two are necessarily 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 attitudes he describes of a democratic ethos. This might be one way to construe 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 works—by continually effecting a gap between the aspirations of secularism’s political ideals — tolerance and religious freedom — and the attitudes normally thought to come with them — a generous disposition and a democratic sensibility, as I noted in the introduction to this book. As I have shown throughout its chapters, one of the

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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 politics. 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 sovereignty—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 distress, 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 landslide? Wouldn’t then Egypt’s secular-religious ambiguities become replaced by clarity—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 authors banned, or condemned to prison or even worse. Intransigent dogmatism and unbridled intolerance reigning everywhere, in the midst of financial ruin and economic poverty. And on top all this, strident calls

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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. Of course, no one can predict the future. But against the power and secret savor of these images, I suggest that Egypt’s secular-religious ambiguities will stay, if not become even more pronounced. The conceptualaffective 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 dislodge— even 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 Al-Azhar might be brought under greater state scrutiny and control. It could conceivably become subject 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 control. 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 politics, 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.

Notes Introduction 1. Its article 2 states, “Islam is the religion of the State, Arabic is its official language, 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 Supreme 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 visions and ways of modern life—with the latter irreplicable and probably unsustainable. 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 NineteenthCentury 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.

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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 presumably 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 constitute 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 Philosophy, Politics, and Jihad (University Park: Pennsylvania State University Press, 2005), 214. 17. Reinhart Koselleck, Futures Past: On the Semantics of Historical Time (Cambridge, MA: 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 Effect: Studies in Governmentality; With Two Lectures and an Interview with Michel Foucault (London: Harvester Wheatsheaf, 1991). 20. Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1984), and Whose Justice? Which Rationality? (Notre Dame, IN: University of Notre Dame Press, 1988). 21. Charles Hirschkind, “Conceptual Challenges to Understanding Islamic Movements: Questions in Tradition, History, and Modernity,” unpublished manuscript, 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: An Islamist Fundamentalist Critique of Rationalism,” Journal of Politics 59, no. 1 (1997): 28–55. 24. Among these works are: Talal Asad, Genealogies of Religion: Disciplines

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and Reasons of Power in Christianity and Islam (Baltimore: Johns Hopkins University 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 recently, 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-dı¯niyya, Markaz alMusa‘ada al-Qanu¯niyya l’Huqu¯q al-Insa¯n, 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, Secularism and Its Critics (New York: Oxford University Press, 1998); Partha Chatterjee, “Secularism and Toleration,” Economic and Political Weekly, July 9, 1994; William 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. I discuss these issues in detail in chapter 6. 29. Early works include Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Rajeev Bhargava, Secularism and Its Critics (New York: Oxford University Press, 1998); and Connolly, 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 University 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, MA: Harvard University Press, 2010); Craig Calhoun, Mark Juergensmeyer, and Jonathan 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.

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31. See Talal Asad, “Trying to Understand French Secularism,” in Political Theologies: 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 Enlightenment (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. An excellent discussion of the modern history of sovereignty doctrine and practice, see Anthony Anghie, Imperialism, Sovereignty, and the Making of International 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 domain. 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; and 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, Indeterminacies 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: SAR 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, CA: 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 Michigan Press, 1992), began to take on renewed salience.

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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,” 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: 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 Ruling: 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 University Press, 1981). 2. J. H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and America (Stanford, CA: Stanford University Press, 1985), 2. See also more generally, H. Patrick Glenn, Legal Traditions of the World: A Sustainable Diversity of Law (New York; Oxford: Oxford University Press, 2010). 3. Talal Asad, “On the Idea of an Anthropology of Islam,” in Occasional Papers, 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 excellent overview of the Egyptian court system with a focus on the Supreme Constitutional Court, see Tamir Moustafa, The Struggle for Constitutional Power: Law,

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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-Rahma¯n, ed., Mı¯tha¯q 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 Association 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 Ottoman 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-dı¯niyya, Markaz al-Musa‘ada Al-Qanu¯niyya l’Huqu¯q al-Insa¯n, 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 discuss 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. However, 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: Essays 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

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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 Modern Egypt (Stanford, CA: Hoover Institution on War, Revolution, and Peace, Stanford 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 ‘ada¯la 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 classical 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 process 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). ‘Ada¯la was among those interrelated concepts. 32. Another example of a technique of moral inquiry in the Shari‘a is nası¯ha, 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. As such, ‘ada¯la 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

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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 certain texts, such as Hadith, for example, lay in the practice of carefully inquiring into the ‘ada¯la of each and every person in the transmission chain. It was the resilience of ‘ada¯la 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-rujja¯l— 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 ‘ada¯la. 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 different 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 problems” (47). As 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 effectiveness 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

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of new institutions and organizations that required and upheld new kinds of virtues. 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, organizations. These new kinds of knowledge had different bases than the systematic knowledge of Islamic legal and moral argumentation and practice, which had bases like ‘ada¯la. 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 capacities and sensibilities requisite to the Shari‘a’s proper interpretation and application. 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 “religious 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, CA: 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 Calligraphic 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 shuhu¯d ‘udu¯l or upright witnesses—that is to say, witnesses who possessed ‘ada¯la. However, documentary evidence was typically seen as secondary, and supplementary to oral evidence. Civil law conceptions of documentary evidence reversed this relation, and established criteria for evidence to which the virtue of ‘ada¯la 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, UAE: Modern Printing Press, 1991), 595.

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43. In a later chapter, however, we will see how a dispositional element is reintroduced, 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 of Abd 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, AlSanhuri 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 specified 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, however, 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 norm’ . . . 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 realization 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 anyone who enacts hisba, whether this be in an official capacity or not. 56. Abd al-Fatah Al-Saify, Al-Talabus b’il-Jarı¯ma (Cairo: Dar al-Nahda alArabiyya, 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 Conceptions of Privacy: Dignity versus Liberty,” Yale Law Journal 113, no. 6 (2004):

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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-Rahma¯n, Mı¯tha¯q 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, 1997). 63. Witnessing was also an important part of hisba in its classical Shari‘a elaborations. However, witnessing in contemporary civil law is very different than it was under the Shari‘a: ‘ada¯la, 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 Recent 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 restricted fashion, during the 1960s, in a case in which the husband had officially converted 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,” Social Research 70, no. 3 (2003): 687–710. 2. In particular, it was placed in the purview of the public prosecutor, or alniya¯ba 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 citizens, and subsequently, after state legislation, of state officials who are ostensibly charged with representing their interests. 4. See also Muhammad Salı¯m Al-‘Awwa, Al-Haq fi al-T‘abı¯r (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 Contemporary Egypt: An 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 Salvatore (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:

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An Ethnography of Islamic Legal Practice” (PhD diss., Department of Anthropology, 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 generalized 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 notions 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 historically 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.” Recent 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. Unpublished manuscript, 1972, 52. 12. M‘aud Abd el-Tawwab, The Commentary on Law #1 for the Year 2000 (Arabic) (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.

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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 Incorporation 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 jurisprudence 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 secularizing 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 liberal 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 under the Ministry of Justice (Wiza¯rat 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-à-vis other centers of Islam such as Saudi Arabia, those functions very often overlap. In particular, 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

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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. I 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 letterhead 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 composed 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 relieved 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 Contemporary Egypt: An Evaluation of Recent Cases from Egypt’s Highest Courts,” Human Rights Quarterly 25 (2003): 720–40; Berger, “Regulating Tolerance: Protecting 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-niza¯m al‘aam,” and better reflects that concept as expressed in continental, international, and Egyptian law. 30. Berger, “Regulating Tolerance,” 357.

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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 international law, see Alex Mills, “The Private History of International Law,” International 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); International Covenant on Economic, Social, and Cultural Rights (8:1a; 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.1 (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 International Human Rights Law,” Brigham Young University Law Review 1999, no.1 (1999): 295–96; Bernadette Meyler, “The Limits of Group Rights: Religious Institutions 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 invoked in US religion cases, many of its associated concepts are. See Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University 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 order in international law cases concerning religious freedoms. See Saba Mahmood, “Religious Freedom and Secular Affect: An Incommensurable Divide?” in Is Critique Secular? Blasphemy, Injury, and Free Speech, ed. Talal Asad et al. (Berkeley: University of California Press, 2009), 64–100.

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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 Sullivan, “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 Procedures 27 May 1897, Book 4, Chapter 2, Article 61, in Compendium of High Decrees and Ordinances Issues for the Year 1897 (Bulaq, 1898). 44. I 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, visitation rights, and financial guardianship of orphans. 46. See Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: 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 Revolution: Gender and the Politics of Marriage in Early Twentieth-Century Egypt,” Journal for the Arts, Sciences, and Technology 1, no. 2 (2003): 25–34; Lisa Pollard, Nurturing the Nation: The Family Politics of Modernizing, Colonizing, and Liberating Egypt (Berkeley: University of California Press, 2005). 47. Ursula Vogel, “Private Contract and Public Institution: The Peculiar Institution 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 excellent article with respect to France by Judith Surkis, “Hymenal Politics: Marriage, Secularism, and French Sovereignty,” Public Culture 22, no. 3 (2010): 531–56.

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50. Talal Asad, “Trying to Understand French Secularism,” in Political Theologies: 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 Divorces,” American Journal of Comparative Law 28, no. 1 (1980): 1–38. 52. Julian Rivers, “From Toleration to Pluralism: Religious Liberty and Religious 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 István 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 William 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 recent. 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

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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 German 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 pronouncements. 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 chapters, 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 contracts and the initiation of divorce proceedings. See Jamila Ahmed Chowdhury, “Family Court A.D.R. in Egypt and Some Exemplary Provisions for Other Muslim

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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 Widening 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 evident in the opening pages of A Secular Age (Cambridge, MA: 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 tendency 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, MA: Harvard University Press, 2010), where she asks whether the varieties of secularism 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 Indeterminacy and/as Professional Expertise,” International Journal for the Semiotics of Law 16, no. 4 (2003): 425–34; Pierre Schlag, “Law and the Postmodern Mind: AntiIntellectualism,” 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 opposed 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 juries 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-sadira fi 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,

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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 Authority?” 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, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan 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 eventually came to the conclusion that belief (and hence belief in someone’s or something’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 (Atlantic 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 freedoms against the rights to compulsory education. See, for example, Sylvie Langlaude, 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 theater 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 Renaissance 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 individual 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-

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formist response to Egyptian modernization. The Fatwa Council institutionalized certain practices advocated by the salafayya movement, specifically the practice of talfı¯q—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 University Press, 2006); David Trotter, Paranoid Modernism: Literary Experiment, Psychoses, and the Professionalization of English Society (Oxford: Oxford University Press, 2001). Famously, Paul Ricoeur has written about how the different interpretive 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 Hermeneutics (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 Kafka—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: SAR Press, 2004), 282–83 (emphasis in text). 3. Ibid. 4. I have mentioned Khalı¯l 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 niya¯ba 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, “Prosecution 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

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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, Solutions, 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 counsel. Moreover, deep institutional and ideological pressures . . . lead us to choose the appearance of justice over justice itself. There is a particular irony in this disconnect, 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, I referenced a comment by Judge Brinton of the Mixed Courts of Egypt, about how procedural reform was often a ruse used to achieve substantive 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 appearance and the enactment of justice in common law that arose from the transformation 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.

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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 recounts 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 generally 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 beneficiaries must be present or sign over power of attorney to a lawyer who will be present. . . . 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 Rueschemeyer and Theda Skocpol, States, Social Knowledge, and the Origins of Modern 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 conception 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, CA: Stanford University Press, 1998). 18. Ibid., 21. 19. Hiyal can also be translated as “stratagems.” ˙ 20. The makha¯rij literature is discussed in great detail by Satoe Horii, “Reconsideration of Legal Devices (Hiyal) in Islamic Jurisprudence: The Hanafis and ˙ Their Exits (Makha¯rij),” 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 aldhira‘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

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Conduct: A Study in Early Hadith,” in Studies on the First Century of Islamic Society, 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 established 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 accelerating 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, “Breaking 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 wellknown 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 unconstitutional, but it did not pronounce the determination of sincerity to be unconstitutional. 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 incentive to participate is financial self-interest and not spiritual development.” Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness

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(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. As 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 Science 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 Metaphysics (Gatewood edition; Chicago: H. Regnery, 1972); see especially chapter 3, “On Presupposing.” 34. See, for example, Mariz Tadros, “What Price Freedom?” Al-Ahram Weekly Online 576, March 7–13, 2002, at http://weekly.ahram.org.eg/2002/576/fe1.htm, accessed 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 political 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 ‘marketed’ 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 mentioned in the Qur’an or the Sunna, the qadis held that resort to this mechanism was

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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, Custom, 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. At http://www.musawah.org/docs/pubs/wanted/ Wanted-AEAS-EN.pdf, accessed July 31, 2011. 39. Carolyn Fluehr-Lobban and Lois Bardsley-Sirois, “Obedience (TA‘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 Ijtiha¯d Closed?” International Journal of Middle East Studies 16, no. 1 (1984): 3-41. 4. Thus Brinkley Messick writes, “According to the disputed view that the ‘gate of ijtiha¯d’ had closed, however, the successes of the advocates of active interpretation 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 ijtiha¯d and rethink their positions from first principles, that is, the Quran and Sunna. 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 ijtiha¯d in their fatwas.” Brinkley Messick, The Calligraphic State (Berkeley: University of Cali-

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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. An entire issue of Islamic Law and Society (vol. 3, no. 2, 1996) was devoted to a discussion of this point, as well as taqlı¯d and ijtiha¯d. See especially Sherman Jackson’s contribution, “Taqlid, Legal Scaffolding, and the Scope of Legal Injunctions 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, MA: Harvard University Press, 1996). As 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 Interpretation: 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 plausible 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, Narrative, 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. 1 (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, MA: 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

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creativity is prized today. Mary Carruthers, The Book of Memory: A Study of Memory 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 question 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, CA: Stanford University Press, 2006). 21. Talal Asad, “Law, Ethics, and Tradition in the Story of Egyptian Modernization,” in Religion and Its Other: Secular and Sacred Concepts and Practices in Interaction, ed. Heiki Bock, Jörg Feuchter, and Michi Knecht (Frankfurt; New York: Campus Verlag, 2008). 22. I thank Veena Das for bringing this question to my attention. 23. Kevin Reinhart, “Transcendence and Social Practice: Muftis and Qadis as Religious Interpreters, Annales 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 employed by Machiavelli and as reworked by Hannah Arendt in her distinctive notion of (political and ethical) judgment. Kirstie McClure, “The Odor of Judgment: Exemplarity, Propriety, and Politics in the Company of Hannah Arendt,” in Hannah Arendt and the Meaning of Politics, ed. Craig Calhoun and John McGowan (Minneapolis: University of Minnesota Press, 1997): 53–64. On historical transformations of the conceptions and uses of exempla, see Timothy Hampton, Writing

notes to pages 185–97

265

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-Zaya¯t, Al-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 defunct Cairo Human Rights Legal Aid (CHRLA): “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 Commission of Jurists (ICJ) titled “Egypt—Attacks 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 president 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. Nevertheless, 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 subsequent legal modification had little impact upon them— except to make the work of these activist lawyers even more precarious. 5. CHRLA, “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, “Egypt—Attacks on Justice.”

266

notes to pages 197–216

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 provides 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 Democracy and the Independence of the Judiciary” (master’s thesis, American University 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. CHRLA, “Military Courts in Egypt.” 14. CHRLA, “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-Zaya¯t, Al-Jihad Kilma, 129–30. 18. Ibid., 132. 19. Ibid., 13. 20. Mahmu¯d Abu al-‘Ainein, Al-‘Itiqa¯l (Cairo: Al-Majmu‘a Al-Muttaheda LilTaba‘a wa-l-Nashr, 1994), 3–6. 21. The only exception to this is in personal status law, because its laws are understood to be explicitly derived from the Islamic Shari‘a. 22. Muhammed Khalı¯l, Aya¯t al-Qur’an al-Qanu¯niyya, 1998. 23. Talal Asad, “Redeeming the ‘Human’ through Human Rights,” in Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 127–58. 24. Vernon Van Dyke, “Human Rights without Discrimination,” American Political Science Review 67, no. 4 (1973): 1267–74.

notes to pages 216–21

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”; Jeffery 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 coherent practice for the lawyers who enact it, such that it is not seen as a contradiction 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 foundational 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 (laïklik). 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 Chatterjee, Nationalist Thought and the Colonial World: A Derivative 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 Incarceration 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 Widening 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 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

268

notes to pages 222–30

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: University 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 provoking. 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 Brotherhood 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 salafiyyı¯n, 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 numbers, 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 before the transition and have become even more pronounced in the aftermath of the initial protests.

notes to pages 231–33

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 sovereignty 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 expression 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 directed 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 sensibilities 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 University Press, forthcoming).

Index ‘Abba¯s, 202–4, 210 ‘Abd el-Ma¯ged, 188, 189; ‘Abba¯s 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, 243n31 ‘ada¯la (integrity, or moral uprightness), 54– 55, 57, 58, 60, 243n33, 245n40 administrative courts: advocacy for de­ tainees in, 22, 205, 265n12; highest court of, 241n8; 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, 110, 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, 180; suspicion and, 126– 27, 138, 141

272 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 awqa¯f, 56–57, 245n38 Baca, Jimmy Santiago, 220 banks, Islamic, 8, 18 bare sovereignty, 231, 234, 268n6 bayt al-ta‘a (house of obedience), 157–58, 261n37 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, 256n25; public/private distinctions with respect to, 52, 59. See also apostasy; religious freedom Berger, Maurits, 93, 94, 250n29 blasphemy laws, 97, 103 Brinton, Judge J. Y., 56–57, 258n10 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, 245n37; 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, 258n11 Constitution, Egyptian: as authority in Abu Zayd case, 51, 52; executive powers in, 200; on family as foundation of society,

index 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, 237n1, 249n16, 249n19; State Security courts authorized by, 196, 197 Court of Cassation, 241n8; decision in Abu Zayd case, 19, 45, 51–52, 68; role in ap­ peals process, 265n8; 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, 265n8; delay in, 140–41, 145, 155–56, 183, 259n15; in Egyptian emergency state, 193–94; exceptional, 193–94, 196–99; 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, 111, 249n23 democracy: modernity and, 5, 6, 10; secu­ larity 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, 265n12; Islamist lawyers advo­ cating for, 188–89, 190, 194, 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

index 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, 254n7; 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, 245n37; 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. See also 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, 260n22; 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

273 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), 11–14 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, 245n40; 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, 111, 249n23; divorce cases seen at, 116–18, 119, 171–74, 177–78, 254n7; established in 1935, 85, 111; everyday practice of, 170–79; future

274 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, 256n29; Sheikh Sayyid Tantawi at, 111, 250n25. 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, 168, 169; of Dar al-Ifta, 249n23; 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, 150–51. 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

index 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, 260n22; features of modernity and, 9 Google executive Wael Ghonim, 232 governmentality, 141, 142–43, 145. See also state sovereignty Greenawalt, Kent, 260n28, 261n29 Greenblatt, Stephen, 256n27 guardianship, in personal status courts, 79– 81, 113, 114–15, 138 Hadith: belief and, 61; interpretation of, 55, 243n33 Hallaq, Wael, 163 Hamid, 213–14 Hanafi school of Islam, 242n12; 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; as duty of all Muslim citizens, 69; earlier use in 1960s court case, 247n1; 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

index historicity, 15, 167–68, 169 Horii, Satoe, 259n20 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, 256n27 ijtiha¯d, 51, 52, 162–63, 164, 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, 238n13 Islam: Hanafi school of, 47, 48, 49, 52, 242n12; objectification of, 10–11, 12–13, 15, 17; as religion of the State, 51, 219, 228, 229– 30, 267n30. See also Hadith; Qur’an Islamic Awakening (Al-S·ah·wa Al-Islamiyya), 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, 11, 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, 243n33. See also Hadith; ijtiha¯d; Qur’an Islamism: shift toward secrecy and, 82, 91, 92; social theorists on, 9, 13

275 Islamist lawyers, 21–22, 188–93, 194; ‘Abba¯s, 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-Ma¯ged; detainees; Zaya¯t, Montas·ar AlIslamist Lawyers’ Association, 192, 202–5, 210 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 ijtiha¯d, 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, 258n11; demeanor of judges and, 133; paradoxical relationship between law and, 35, 108, 110, 112, 121, 183; substantive vs. procedural, 137, 258n10. See also judges; language of justice; law Kafka, Franz, 257n1 Kahn, Paul, 267n1 Khalı¯ l, 134, 135–36 khul’ divorce, 138–39, 141; sheikhs’ practices similar to, 161–62 King, Martin Luther, Jr., 215

276 language of justice: of Islamist lawyers, 38, 39, 40, 189, 214–19; political theology and, 223; in protests of 2011, 231. See also justice Lapidus, Ira, 243n31 law: anxiety about, 108–9, 110, 131, 132, 137; Foucault on, 141; interpretation of, in Western legal theory, 263n9; 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; problemspace 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’s authority to draw, 72– 73, 226–27; suspicion and, 151. See also Egyptian state as secular or religious

index Locke, John, 256n25 loopholes (h·iyal ), 143–44, 259n20 Madani, ‘Abd al-Ha¯rith al-, 22, 201 Mahmood, Saba, 181, 232 majority-minority relations, 98 makha¯rij (exits), 143–44, 259n20 Malcom X, 215 mal courts, 113–16, 132–33, 138. See also personal status courts the manifest (al-za¯hir), 61–62, 246n60 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, 261n37; personal status courts dealing with, 113; polygamous, 92–94, 96; secularist questions about, 30 masla¯ha¯ (interest), 66 Mason, John Hope, 168 Merryman, J. H., 43–44 Messick, Brinkley, 12, 257n7, 262n4 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, 258n10; professionals in, 244n37 modernity: contemporary Islamic religiosity and, 10, 16; as natural, 10, 11, 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

index moral inquiry and criticism, 54–55, 58, 59, 243nn31–33, 244n37; 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, 209 muh·tasib (one who applies hisba), 62–63, 246n55 nafs courts, 113, 115. See also personal status courts nası¯ h·a (advice-giving), 243n32 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, 261n37 objectification of Islam, 10–11, 12–13, 15, 17 Omani Muslim community, 13, 14 orphans: fatwas on inheritance by, 118–19, 125, 255n19; financial guardianship of, 79–81, 113, 114–15, 138

277 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, 248n10; 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, 261n35; 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, 267n1 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

278 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, 248n7; 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;

index state sovereignty and, 31–32, 95–96, 97, 100–101, 218, 223; tolerance and, 103–4 public order norms, 96 public policy, 250n29, 251n38 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; ‘ada¯la 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, 111; 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

index as flip side of, 151. See also belief; freedom religious violence: national security para­ digm and, 39; pretext of defending against, 223 Ricoeur, Paul, 257n1 rights: in civil law tradition, 61, 246n53; liberalism and, 72; line between religion and politics and, 27, 28, 72 rights of God (huqu¯q Allah): Abu Zayd case decisions and, 49, 52, 65, 66–67; hisba and, 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, 111– 12, 142–49, 152–54, 183; spaces of excep­ tion within, 112, 142, 143, 144, 153, 183– 84; suspicion fostered by, 35, 112, 113–17, 119–22, 130, 142, 159. See also law sadaqa (charity), 60, 66, 246n47 Sadat, Anwar Al-: 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, 260n22 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, 248n10; Shari‘a court reforms of 1897 and, 99, 100; shift of 1970s toward,

279 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, 71, 72; 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 September 11, 2001, attacks, 17, 37, 40 Shaham, Ron, 261n37 Shari‘a: Abu Zayd case and, 18, 20, 43, 45– 47, 59, 71; as 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, 245n37; 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, 237n1, 249n16, 249n19; 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, 111, 157–58, 255n18 Sheikh al-Azhar, 111 sheikhs, 84. See also Fatwa Council of AlAzhar Mosque; fatwas; muftis silmayya (peacefulness), 232 simulation of emergency powers, 194, 199–202 Singerman, Diane, 261n35 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

index 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, 249n19; military courts and, 199; Press Law and, 201 suspect, under emergency law, 195–96 suspicion: changing conceptions of the self and, 256n27; 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, 259n20. See also anxiety; vigilance against abuses of power Switzerland, ban on minarets in, 103 tajassus (spying), 61, 62, 63 Tantawi, Sheikh Sayyid, 111, 250n25 taqlı¯d (imitation), 163, 164–65

index 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, 218, 226, 233 torture, 22, 199, 201, 202, 205, 208, 221, 265n12 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, 238n13; Weberian notion of, 14, 238n13. 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, 260n27, 260n28, 261n29; 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, 211; exceptional courts and, 198,

281 199; by Islamist groups, and lawyers’ defense, 211; 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. See awqa¯f war on terror, x, 222, 223, 232. See also national security paradigm Watson, Alan, 43 Weberian notion of tradition, 14, 238n13 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, 263n9; publicity requirement in, 132. See also civil law tradition; French law Whitman, James Q., 120–21, 124 witnessing, 54–55, 56, 245n40, 247n63; in divorce cases, 116–17, 254n7; hisba as form of, 60, 66–67; in medieval France, 125; in personal status cases, 57 Wittgenstein, Ludwig, 24 women: Islamic study groups of, 8. See also gender issues Yemen, prosecution in, 257n7 Zaynab, 206–7, 209 Zaya¯t, Montas·ar Al-, 191–92, 208–9, 210–11 Zionism, 30 Zorza, Richard, 258n8 zulm, 211–14, 215