Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). 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 (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of 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 which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right 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 motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books 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 imperative 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 promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious 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. … 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.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, 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 to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’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 this is facilitated by resort to a certain kind of semiotics. A 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.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be 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 U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure 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 those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal 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. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. 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 and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

But it behooves us to think more deeply about what this regional stability is understood to consist in. It is clearly understood to include the maintenance of existing treaties and strategic military arrangements with Israel. And this is interesting, because Israel defines itself as a religious state. So, we have a situation in which Egypt’s becoming a secular democracy is thought to assure its continued diplomatic and military commitments to a religious state. One might object here that Israel is not a religious state and that it does not define itself in that way. This objection would be partly correct: Israel’s secular and religious identity constitutes a continual ambiguity, one with which it continues to struggle internally. Thus, although much of the population defines itself as secular, explicitly self-identified religious groups exert enormous power in government and society, well out of proportion to their actual numbers. This creates enormous controversy over central issues, such as the accepted criteria for deciding whether or not one is Jewish. Moreover, like Egypt, Israel’s personal status law is heavily rooted in religious law. Israeli religious authorities have so far successfully resisted the institution of civil marriage—a situation that forces non-religious couples in the country to choose options that provide them with fewer rights and guarantees. Unlike Egypt, however, Israel’s profound secular-religious ambiguities are not seen to threaten the existing treaties and security arrangements upon which regional stability is thought to rest. We might ask why this is so.

It is also unclear why it is assumed that if Egypt becomes a secular democratic state, it would be necessarily sympathetic to Israel. Egypt’s commitment to secular democratic ideals might well lead Egypt to distance itself from Israel on account of Israel’s ambiguous religious-secular character. Both Turkey and Saudi Arabia maintain strategic relationships with Israel, but while Turkey is a country that imposes a particular brand of secularism on its people, Saudi Arabia is one in which a narrow version of Islam is imposed on the population. Moreover, Saudi Arabia’s Islamic character is not seen as a threat to the region’s stability, even though its Wahhabism has been cast by some (largely lay) commentators as an ideological source of terror.

These are some of the ways in which our discourses on the secular and the religious so often twist and turn, get entangled in, and finally confound, each other. What gets lost, however, in all of the talk of regional stability and of secularity and religiosity is the crucial issue of Palestine. Few have emphasized this link in the regional chain, with the exception of Rashid Khalidi, who, thankfully, continues to remind us of it. What matters here is not whether Egypt, or even Israel, is a secular or a religious state. What matters is how Israel treats—or continually mistreats—the Palestinians, denying them their internationally agreed upon rights, and whether Egypt will continue to support this ongoing mistreatment. Here, it is important to note that the repression of the last thirty years in Egypt has been allowed to grow unhindered—both tolerated and supported—by the U.S., precisely because of its interest in maintaining those political and strategic arrangements with Israel that enable the continual and increasing violation of Palestinian rights. And it is this repression that Egyptians have so powerfully protested against.

In the end, it may be doubted whether the regional stability that so many are concerned about, and which Egypt is hoped to help sustain, can really be counted as stability. After all, this “stability” has allowed both Israel and the U.S. to conduct a number of aggressive wars throughout the region, from Lebanon to Gaza to Iraq. If commentators are genuinely concerned with democracy in Egypt and stability in the Middle East, they should fear less the Muslim Brothers and more the U.S. funding and regional alliances that aim to enact American foreign policy in the region, and which have choked off democratic possibilities for so long.

Having made these points, important for our considerations of the present moment, I would like now to turn to some more broadly theoretical reflections concerning what the events in Egypt might teach us about questions of secularity and religiosity more generally.

The question of whether Egypt is or will be a secular or a religious state has been asked for a long time, because of both the country’s strategic geopolitical location and the genuine religious-political ambiguities that it exhibits. It is therefore a question that I have not been able to avoid in my own research. However, I have tried to approach it not by looking at the norms that secularism imposes but rather the questions that it obliges us to ask and answer. That is, I do not assess the norms found in Egypt by judging whether or not they conform to secular standards, because those standards are seldom clear, highly contested, and often changing anyway. What I explore instead are the underlying, longstanding questions against which those norms are continually adduced, established, contested, and transformed as answers. I see 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. That these questions and stakes are longstanding 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 (in medieval Christian and Muslim times, for example, 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 indispensable to the practical intelligibility of our ways of life and to many of the ethical positions we take. It is difficult to remain indifferent to it.

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 principle and practice of the state’s sovereign power. We can therefore say that the power of secularism is not the power of the norm but of the question and of the sovereignty that decides it. The question of whether Egypt is a secular or a religious state is but one manifestation of this power; that it 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 Israel, the United States, England, 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 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. (I have discussed these points in greater detail here.)

The approach to secularism as a historical problem-space, and the central role of the state’s sovereign power within it, has consequences for some of the critical claims of political theology. It may also help to frame the recent events in Egypt in a particularly revealing light. 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. In other words, pace Carl Schmitt, some significant political concepts are not secularized theological concepts. This is especially the case with state sovereignty, because it stands prior to religion and politics and decides the distinction between them. Importantly, however, while state sovereign power stands prior to religion and politics, it is not indifferent to the question of how to distinguish and separate them.

This conception of state sovereignty contrasts with the manifestation of sovereignty that we saw in the protests. From the vantage point of the tradition of democratic legitimacy, the protests were a manifestation of pure popular sovereignty. I will contrast this to state sovereignty by calling 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. Not surprisingly, the protests expressed every potential language of justice, secular or religious, but embraced none. In the sense that it stands prior to religion and politics, and that it is indifferent to the question of their distinction, the bare sovereignty manifested by the protest movement stands outside the problem-space of secularism. In that sense, it represents a genuinely asecular power.

(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. That principle has been frequently used by the state 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. For more on this point, see the remarks of legal and political theorist Samera Esmeir.)

Why have I chosen the term “asecular,” and not, say, “non-secular” or “post-secular,” to describe the power manifested by these protests? The term “non-secular” is too easily confused with the notion of the religious. And unlike post-secularity, 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 from which state secularity arises. Explorations of post-secularity typically try to identify the emergence of new norms. Such attempts fail to recognize that the process of identifying and distinguishing secular from non-secular norms is part of what secularism is, and that this process is integral to its power. In contrast, the term asecularity specifies a situation not where norms are no longer secular, but where the questions against which such norms are adduced and contested as answers are no longer seen as necessary. It is a situation where we can be genuinely indifferent to those questions, the ways that particular stakes are attached to them, and their seeming indispensability to our ways of life.  As a result, such moments open up spaces for us to think beyond our current predicaments. Here, it is worth noting that the condition of asecularity manifested by these protests was also associated with a genuine ethos of democratic sensibility.

In regard to this connection, Talal Asad makes some important remarks, with which I would like to end. In an article entitled “Thinking about Religion, Belief, and Politics” (forthcoming in Cambridge Companion to Religious Studies, Robert Orsi, ed.), 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, and its expanding regulatory capacities. But what this manifestation of asecular, bare sovereignty shows us is that it may not be necessary to have a principled distinction between religion and politics 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, non-judgmental 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. This might be one way to construe Asad’s statement at the end of 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.”

I thank Samera Esmeir and Saba Mahmood for their comments and suggestions on an earlier draft of this piece. I also thank Talal Asad, especially for his help in clarifying my ideas on bare sovereignty.