The politics of religious freedom:

Paradoxes of “religious freedom” in Egypt

posted by Tamir Moustafa and Asifa Quraishi-Landes

The place of religion in the political order is arguably the most contentious issue in post-Mubarak Egypt. With Islamist-oriented parties controlling over 70 percent of seats in the new People’s Assembly and the constitution-writing process about to begin, liberals and leftists are apprehensive about the implications for Egyptian law and society, including the rights of Egypt’s millions of Coptic Christians.

Mindful of these anxieties and pragmatic in its approach, the Muslim Brotherhood’s Freedom and Justice Party (FJP) has backed away from earlier calls for an “Islamic state.” Its 2011 election platform opts instead to promote the sharia as a “frame of reference. ” Working hard to assuage anxieties both at home and abroad, the Party explicitly calls for a “civil state” and repeatedly stresses the importance of equality of citizenship among Muslims and Christians:

Egyptians, Muslims and Christians, are integral parts of the fabric of the one homeland, with equal rights and duties, and without distinction or discrimination, and all together they must remove the injustice inflicted upon them.

Yet the FJP operationalizes this commitment to equal citizenship and religious freedom by declaring further that, “the basis of citizenship is full equality before the Constitution and the law and fully sharing all rights and duties, with the exemption of personal status matters where ‘each has his own rules’” (emphasis added). Elsewhere in the FJP platform, the party reiterates its position that “non-Muslims have the right to refer to their own rules and laws in the fields of family and religious affairs.”

As benign as this aspect of the FJP platform may sound, provisions guaranteeing “special rights” for different religious communities often carry illiberal implications when codified as state law. But the presumed alternative—banishing religious law through strict secularism—is also not an unqualified good. It imposes restrictions on “religious freedom” in another way, by disempowering citizens from entering into legal arrangements inspired by their own religious commitments. This paradox of religious freedom—the difficulty of reconciling the individual’s right from religion, while providing for the right to religious law is a paradox rooted in the modern state’s capacity and proclivity to codify and monopolize law. And, ironically, it is not modern state law but the Islamic legal tradition itself that may point the way out of this impasse.

It is important to note that the codification and implementation of religious law as state law is not only troubling from a “Western” liberal rights perspective, but also from the standpoint of the Islamic legal tradition. The core epistemology of Islamic jurisprudence dictates that Islamic legal doctrine is unavoidably pluralistic. Sharia is believed to be the perfect Law of God, but Muslim jurists have always insisted that it is impossible for fallible human beings to know that Law with certainty. Thus, the legal rules they extrapolated from scripture were treated as only “probable” articulations of sharia, all equally valid because there is no way to know for sure which jurist is correct (and no Muslim “church” to designate favorites). The legal doctrine they crafted is called “fiqh” (literally, “understanding”), and it eventually formed into schools of law that disagreed with each other, sometimes in significant ways. For Muslims, then, there is one Law of God, but there are many schools of fiqh articulating that Law on earth. That simple fact is what makes discussing sharia so challenging in the West, where it is assumed by many to be exact, uniform, and uncontestable by believers.

Fiqh pluralism allows Islamic law to be tangible enough for everyday use, but still flexible enough to accommodate evolution and personal choice. This pluralism is lost with state codification. Because sharia doesn’t exist as one code of law but rather as multiple fiqh schools, any state “legislation of sharia” is purely an exercise of state power, selecting one (humanly-created and fallible) fiqh rule out of several equally valid choices and enforcing it as state law, often in the guise of divine law. State codification of fiqh rules (and calling them “sharia”) undermines the dynamism of Islamic jurisprudence and the organic relationship with society that these jurisprudential traditions have had in the past. It freezes certain rules from a past time, anachronistically applying them in today’s different social, political, and technological contexts.

This is seen most clearly in the field of family law. A growing body of scholarship suggests that the codification of Islamic family law in Egypt and most other Muslim-majority countries was selective and partial. Far from advancing the status of women, the codification of Islamic family law actually narrowed the range of rights that women could claim in the diverse doctrines of multiple fiqh schools. Thus, the limited (and antiquated) laws of divorce that are applied today to Muslims in Egypt are dictated by contemporary politics, not by sharia.

All of this means that, from the perspective of both secularists and religious Muslims, collective rights for specific religious communities will stand in tension with the individual rights of citizenship as long as religious law remains wedded to state law. Moreover, this situation begs a perennial question of religious authority—that is, who has the right to define the rules of a religious community. In their current mold, the governments of most Muslim-majority countries essentially claim to be both authors and enforcers of sharia. The theocratic dangers of this arrangement should offend not only secularists who feel that state law should be separated from religion but also Muslims because it disrespects fiqh pluralism and allows the state to claim control over what used to be left to the autonomy of independent fiqh scholars. For both sides of the “religious-secular” divide, if “religious freedom” is to have any meaning, this paradox needs to be addressed.

One possible resolution is to examine the historical roots of the problem—to interrogate the codification and incorporation of Islamic family law as state law and to delink and reconfigure the relationship between religious law and the state. A first step would be to recognize that most political Islamist movements operate on an image of Islamic government that is a stark departure from the structure of nearly every pre-modern Muslim government, in which there was a separation of legal authority between fiqh scholars and government lawmakers. Rulers made and enforced laws ostensibly to serve public order (siyasa laws) but they did not make or codify fiqh law. Siyasa power was used to enforce judicial decisions of fiqh-based legal disputes, but fiqh did not need state enactment in order to be authoritative. And before “legal monism,” a term adapted by Sherman Jackson to denote the presumption that all law must emanate from a centralized state, siyasa enforcement of fiqh-based judicial decisions was generally done with respect for fiqh pluralism.

Today’s reigning assumption that a Muslim state may codify religious laws for an entire religious community undermines the legal pluralism that religious communities (Muslim and non-Muslim) used to enjoy in pre-modern systems. Before centralized nation-states, Muslim governments operated on a “to each his own” approach to religious law that included not just the many Muslim fiqh legal schools, but also the religious law of Christians, Jews, and others. It is this model of religious pluralism from the Islamic legal tradition that the Muslim Brotherhood ostensibly invokes in its 2011 election platform, but there is a key difference: individuals in pre-modern Muslim systems enjoyed official recognition of their preferred religious law without the state codifying it for them.

Contrary to the impression created by many contemporary Islamists’ focus on codification, “legislating sharia” is not what makes a country Islamic. Pre-modern Muslim rulers enjoyed sharia legitimacy for their lawmaking on the premise that they served the public good, not because they were selecting and enforcing a preferred interpretation of scripture. In fact, it was their early attempts to do the latter that led to the separation of fiqh and siyasa legal realms in the first place.

State codification of sharia also flies in the face of the core epistemology of Islamic jurisprudence: that no human can ever know God’s Law for sure. Codifying fiqh on the premise that “it is sharia” rejects the humility exhibited by centuries of fiqh scholars and implies that the state can declare what is the correct interpretation of divine law for their society. This is a radical and unprecedented move.

Unfortunately, many lay Muslims and Islamist political activists seem to unquestioningly assume a centralized state model, and this presumption bolsters the idea that an “Islamic” government should use the state apparatus to legislate and enforce its preferred interpretation of sharia upon the population. Few think of law in terms of the fiqh-siyasa bifurcation of legal authority that was built upon the hard-fought lessons of Muslim history. In fact, the average Muslim conception of sharia itself has largely mutated over the past century. Many are so unaware of fiqh pluralism that government assertions of “the” sharia rule are often blindly accepted as true, even when there are actually multiple fiqh opinions on the topic. Many Muslims even defend “sharia legislation” as if defending their very faith, fiercely opposing anyone challenging it as a perceived enemy of Islam.

All of this manifests in the familiar and seemingly endless war between secularists and Islamists discussed and analyzed by political commentators. Unfortunately, both inside and outside Muslim-majority countries, the focus is usually on whether one or the other side will win the latest battle. A better path is to explore creative alternatives to end the war.

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5 Responses to “Paradoxes of “religious freedom” in Egypt”

  1. Very interesting. But while the Islamic schools of fiqh have always been multiple, wasn’t it true that each national area (pre-state) tended to adopt a particular school for the population at large? That is, judicial rulings for area X were always from school 3, for example. Could a citizen of area X request a ruling from school 4, or could a judge from area X rule from school 2?

    If not, then isn’t this practical codification, even if the diversity of schools held in theory? Thanks for a worthy article.

  2. avatar Alan Jay Weisbard says:

    This is a wonderful, illuminating piece. Thank you.
    When one moves from historical practice and pluralist theory to the practical exigencies of the modern nation state, how would a more pluralist approach be practically implemented? How, for example, would a divorcing Muslim couple choose which fiqh school to follow, where the decision might well be predictably outcome determinative and the members of the couple might come from differing Muslim backgrounds—let alone in cases where marriages would cross denominational lines? (This shares certain quandaries with how disputing Jews choose a rabbi to determine a halachic dispute, and how the Israeli legal system, which inherited some practices from Ottoman times, struggles to cope with intercommunal marriages outside the jurisdiction of any single denomination.) Would such a system necessarily be antithetical to practices now taken for granted, not only in the modern West, but in much of our interconnected globe?

  3. avatar Sumita Pahwa says:

    Wonderful article. Your point about the risks of codification and standardization of sharia and its application by a modern centralized state is key, I think, to the understanding of sharia today.

    You also note: “Contrary to the impression created by many contemporary Islamists’ focus on codification, “legislating sharia” is not what makes a country Islamic. Pre-modern Muslim rulers enjoyed sharia legitimacy for their lawmaking on the premise that they served the public good, not because they were selecting and enforcing a preferred interpretation of scripture. In fact, it was their early attempts to do the latter that led to the separation of fiqh and siyasa legal realms in the first place.” I think Islamists like the MB can be more subtle on this question than they are sometimes given credit for – there is lots of debate on the ways in which sharia can serve the public good and the argument for the Islamic minhaj as derived from but not limited to sharia, is key to the MB argument for sharia as a comprehensive social and economic project. The problem of course is the risk of radical flanking and challenges to moderates from those who would accuse them of neglecting God’s law for treating sharia as a set of principles. But the Brothers and their allies have long insisted that they did not want to simply codify and apply fiqh…

  4. Mr. Casper and Mr. Weisbard:

    We’re glad you both enjoyed the piece and thank you for these good questions. We are especially encouraged that you both are asking about the real-life implications (past and present) of Islamic legal pluralism. This is very much the direction we would like conversations about sharia to take, so we are happy to engage with a few more details here. A full answer is, of course, beyond the scope of this forum, but we offer the following as a beginning.

    Mr. Casper asks about whether fiqh legal pluralism was actually recognized in real-life adjudication, given that many Muslim governments tended to favor a particular school. He suggests that this favoritism stifled (or, practically speaking, eliminated) the fiqh pluralism that otherwise existed in theory. Actually, it did not. While it is true that most Muslim governments had a favorite fiqh school, Muslim rulers nevertheless often appointed a variety of judges (belonging to different fiqh schools) corresponding to the schools most popular in each geographic location. It was also common for judges of the government’s favored school (and, granted, there were more of them than of the unflavored schools) to take judicial notice of fatwas (nonbinding legal opinions) from fiqh experts of other schools, usually presented by one of the parties as part of a request for adjudication according to that school. Judicial treatment of these requests were of course not uniform, but the important point is that it was considered relevant, and sometimes dispositive. In this sense, the reality of fiqh-pluralism was a bottom-up, versus a top-down, process. So, yes (using your terms), a citizen of X fiqh school could request an X-based ruling, even if the ruler favored Y fiqh school – either by the existence of a judge of school X for the X Muslim population residing in the area, or by presenting to a judge of school Y a fatwa based on school X. It is also important to realize that, while schools were largely geographically-organized, they were not exclusively so. There were many areas featuring Muslims of more than one school, especially some large cosmopolitan cities. Finally, it is important to note that there was not only pluralism across the different schools of fiqh jurisprudence, but also within those schools as well. Even if one fiqh school was dominant in a particular geographic area, there was considerable variability.)

    Mr. Weisbard asks about the present – namely, how fiqh pluralism could work with the practical realities of legal and political systems today. This is a large focus of my (Asifa’s) current book project. It is a large topic with lots of room for different manifestations to take into account to the individual needs and realities of each country. Nevertheless, the argument that I will make is that the idea of individual-driven resolution of legal disputes according to fiqh schools is not one that is unworkable, or novel. This is true even in modern western countries. For example, the practice of alternative dispute resolution (ADR) in the United States is an example of a method by which legal disputes can be (and are) resolved by criteria other than the uniform law of the land. Modern Muslim governments could likewise allow a robust parallel legal realm through which individuals could consent to adjudication of their legal disputes according to a selected fiqh (or other religious) legal authority. You point out potential complications with legal relationships that cross-denominational or religious lines – like marriage. I imagine parties could avoid jurisdictional complications by, among other things, a choice-of-law clause in the initial contract similar to those used by international entities around the world today. There are, of course, complex legal questions where issues get messy between the lines, but overall, this is generally dealt with through creative crafting of legal and administrative rules, rather than rejecting choice-of-law clauses altogether. I will argue in future writings that the benefits of fiqh pluralism are, likewise, worth the effort.

    Thanks again for a great discussion.

    Asifa Quraishi-Landes and Tamir Moustafa

  5. avatar Brian Wright says:

    Great article but I had a few issues that I wanted to throw out and discuss:

    1. What’s the solution? Codification and the centralization of state power has been the dominant force in legal theory since the 1700s, and it seems like it’s going to stay that way for a while, and there seems to be no viable alternative.

    I would also question whether this pluralism exists because Muslim jurists developed it this way, or because of the historical reality that it was impossible in Egypt for example to apply a unified law system in the outskirts of Cairo, much less in villages. I think that the justification given by many Islamist groups would be that today we can apply this Shari’a in a uniform fashion because we have the methods (technology, media, etc.) to do so.

    2. Codification removes much of the diversity in legal opinions, yes, however codes can be interpreted by the judicial powers and codes can change just like anything else can as the interpretation of the text changes, albeit with much more difficultly than traditional case-by-case interpretations.

    Also, returning to older interpretations for application in a later period was a common practice throughout the Sunni legal tradition and can be seen through any later text in a fiqh school. In Egyptian history, for example, throughout the Mamluk Period judicial references were commonly made to the rulings of Qadi Khan, even in non-Maliki courtrooms. The same would be done to Al Qaddouri, with a number of Shafi’ judges actively quoting him hundreds of years after his death.

    And finally, there is on the other hand the common law system, never really applied in Muslim countries but something that seems closer to the past Islamic reality. Does this system have the same form of restrictions of pluralism or does its reliance on precedent and more judicial freedoms give the answers that are necessary?

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