Egypt’s post-revolutionary environment—and especially its constitutional process—has touched off debates within the country and confusion outside of it regarding the role of the Islamic sharia in the emerging legal and political order.
In a Q&A, Nathan J. Brown explains what the Islamic sharia is—and is not—and how it might be interpreted in Egypt’s new political system. In explaining the complexity of the Islamic sharia, Brown warns that one of the most striking features of the debate is the flexibility of key concepts and positions. Therefore it is far more important to understand who is to be entrusted with interpreting and applying sharia-based rules than it is to search for the precise meaning of the sharia.
What is the Islamic sharia?
The term “Islamic sharia” has subtly different denotations and sharply different connotations in Egypt than it often does in the United States or Europe. There is a reason many scholars insist that defining it as “Islamic law” (as it is often described in non-Muslim countries) is sometimes overly narrow. Sharia includes large areas of personal conduct not generally covered by legal rules in many societies (such as the regulation of prayer or ritual purity). Not only does it blend private practice, ethics, and public law, but it also includes categories such as detestable (but not prohibited) or preferred (but not required) that make ethical but little legal sense. A vaguer but more accurate translation might be “the Islamic way of doing things.”
And that is the definition accepted by many who follow sharia. Such a translation makes clear why the Islamic sharia is hard to oppose. It is one thing to question hudud punishments (for serious crimes) by claiming to wish to follow the spirit but not the letter of traditional understandings. It is something quite different to proclaim that one prefers to do things in a non-Islamic manner or that Islamic teachings have no relevance in public life. It would be as unexpected as U.S. politicians claiming they prefer the “un-American way.” Public opinion polls on the subject provoke the same response among the broader society.
Of course, the Islamic sharia is not merely the equivalent of a flag pin for a politician’s lapel; it has enormous practical and not simply symbolic content. But observers should not expect many calls to abandon the Islamic sharia in Egyptian political debates.
There is another terminological oddity that can shed some light on the connotations of the Islamic sharia: following Egyptian usage, I have been referring to “Islamic sharia,” a phrase that seems almost comically redundant in English, like referring to a “Jewish rabbi.” A non-Islamic sharia might seem to be something like a “Protestant pope.” But Egyptians will sometimes refer to other religious communities as sharias. Muslims would still regard the Islamic sharia as superior—and indeed, as historically superseding those that came before—but they will sometimes refer to other religion’s sharias, especially regarding their provisions for personal status law (covering marriage, divorce, and inheritance). And since the Hebrew word for Jewish law is halachah (also meaning way) the idea of Jewish and, for that matter, various Christian sharias may strike some readers as odd but reflects occasional Arabic usage.
While the Islamic sharia sometimes means more than simply Islamic law, it certainly has extensive legal content. Exploration of its nature has led to over a millennium of intellectual inquiry. Business transactions, criminal punishments, inheritance, and legal procedures, among many other areas, have been the subject of scholarship by those who probed religious sources to discover the ways that a community of Muslims should operate. And the Islamic sharia also provides some guidance on how violations must be treated—by compensation, penalties, or the voiding of contracts, for instance. Because of this, referring to the Islamic sharia as law is not always misleading.
As with any intellectual tradition, opinions over the centuries have varied considerably about what God has required and what the earthly consequences are of violating a rule. For that reason, Muslims will sometimes take pains to distinguish between the Islamic sharia as unchanging divine guidance, and fiqh, or jurisprudence, as the fallible human effort to understand the content of that guidance. There is, in that sense, one sharia but many different interpretations. Nor is the diverse nature of fiqh seen as a problem; it is not uncommon to hear many Muslims today cite the multiplicity of interpretations in their legal heritage as a virtue, since it shows how attempts to discover and apply the Islamic sharia naturally evolve with prevailing conditions and community needs.
Ultimately, then, a call to apply or follow the Islamic sharia will have to confront the questions of which rules to apply from this rich tradition of legal and ethical speculation and—perhaps more critically—who has the authority to decide which interpretations are to be enforced. These are difficult issues, but there are surprising areas of convergence on them in Egyptian discussions. Such convergence sets the terms for debates but it hardly resolves them.
My answers are more of a guide to observers on what to watch for, rather than an attempt to advise Egyptians in any way on what choices to make or to advance some interpretations or approaches as preferable to others. After all, one of the most striking features of the debate is how flexible key concepts and positions are.
How do Egyptians feel about the Islamic sharia?
Debates about the Islamic sharia touch many areas, but perhaps the two most significant concern personal status and constitutional text.
The least controversial matter—but perhaps the most consequential one for Egyptians—involves the principle that the Islamic sharia should prevail in matters of personal status (covering marriage, divorce, and inheritance). This consensus within Egypt is a bit surprising since the term “personal status” itself, while widely used in Egypt today, does not derive from the Islamic legal tradition.
But this was the one area of law that has been continually informed by sharia-based rules, up to the present. It is thus for historical and not religious reasons that personal status has emerged as central to sharia debates. In purely religious terms, there is no reason to regard it as more important to ensure that a Muslim’s family relations are regulated in a manner pleasing to God than it is to enforce strictures regarding commercial transactions or criminal law.
Thus, even among Egyptians who feel no impulse to abandon the country’s current law for business transactions (largely French in origin), there is still little debate that when Muslims are born, marry, divorce, and die they should do so within a legal framework derived from the Islamic sharia. There are almost no calls for a civil law of personal status—one that applies to all regardless of religious affiliation.
But even if the laws of personal status are supposed to be rooted in the sharia, it is not clear what interpretation of sharia they should be based on. The task has fallen to the parliament—the current law of personal status in Egypt, even if it has been derived from Islamic sources, is still legislated by a popularly-elected body. And that is where most of the debate therefore takes place: what parts of the Islamic legal heritage should be codified through parliamentary legislation? And which interpretations are most appropriate for Egypt right now?
Personal status law affects every single Egyptian and is thus potentially the most significant area of law, but generally the debate over sharia’s role in the constitution is drawing far more attention. This is partly because for the last century, Arab constitutions have experienced what might be termed “Islamic inflation,” in which Islamic provisions have become more fulsome. Documents that were originally seen as merely arranging structures of government (and therefore made at most passing reference to Islam) came to be viewed instead as broad definitions of the purpose of political community, the nature of identity, and the character of public life. By 1980, the inflationary spiral had reached the point that Article 2 of the Egyptian constitution was amended to read that “the principles of the Islamic sharia are the main source of legislation.”
That text, as expansive as its prose, was attached to no clear implementing structures, so it was not clear at all what it meant when it was first adopted. It referred not specifically to the Islamic sharia but to its “principles,” a particularly ambiguous term. But the amendment led to a series of litigants—with one of the early challenges coming from al-Azhar University, the main Islamic center of learning, contesting the interest rate on a debt it had not paid to a contractor—challenging bits and pieces of the Egyptian legal order on the grounds that they violated the amended Article 2.
Over time, the country’s Supreme Constitutional Court (SCC), charged with measuring Egyptian laws against the constitution, worked out an approach to such cases, drawing on a century of modernist Islamic thought, led by a variety of religious scholars, intellectuals, and legal specialists, that centered around the question of how to understand the Islamic sharia in a manner appropriate for the needs of a modern society. The understanding developed by the SCC has seeped into current political debates and its terminology is cited across large parts of the political spectrum.
The SCC—and now many Egyptian intellectual and political figures—have come to see the Islamic sharia as relevant to modern law in two ways. First, the Islamic sharia is based on certain general goals or maqasid (such as the protection of life or religion), a concept derived from medieval jurisprudence to guide legal scholars in determining the law in difficult or ambiguous situations but now employed in a fairly expansive way by specialists and increasingly non-specialists (with some intellectuals, even those firmly in the Islamist camp, arguing that the maqasid have to be expanded still further beyond the older concepts to include additional goals like freedom).
Second, for all the diversity in the Islamic legal traditions, there are a small number of rulings or provisions which are not contested—so clearly founded in the sources and unambiguous in their meaning that they are not reasonably denied and therefore must be obeyed.
What is likely to be included in Egypt’s new constitution?
Probably something close to what was in the old one.
There is surprisingly widespread agreement in Egypt—albeit sometimes reluctantly among some non-Islamist forces—that something like the current Article 2 will appear in Egypt’s new constitution to be drafted this year. It was already copied directly from the abrogated 1971 constitution into the text of the currently governing but interim Constitutional Declaration of March 2011.
Indeed, it is striking how few changes have been suggested to the article. Occasionally a voice might meekly suggest that the word “the” (added in a 1979 amendment) be dropped so that the principles of the Islamic sharia become merely a source of legislation, rather than the source.
Some Salafis have deployed their newfound interest in constitutional texts by proposing that the word “rulings” (ahkam) be inserted so that it is not merely unspecified “principles” but the “rulings” of the Islamic sharia—a far more specific guideline—serve as the primary source of legislation.
That position has been rejected by the Muslim Brotherhood. And the Brotherhood has begun to muse about dropping the word “principles” so that the provision would read only that “the Islamic sharia is the main source,” an even more general phrasing than what exists currently. It has also offered the idea of incorporating language specifying that other religious communities should be governed by their own sharias in matters of personal status, a formula whose main effect might simply be to burden legal translators with the puzzling task of conveying the possibility of non-Islamic sharias. Such a clause would likely have minimal impact on the Egyptian legal order, since the personal status law for recognized religious communities is so deeply entrenched in Egyptian law and practice.
Thus, after considerable international handwringing and domestic mudslinging, something quite similar to the current language will likely be adopted. But unlike in 1980, when the wording was first adopted, there is now more consensus on the general terms of what that means, at least in theory.
What are the legal implications if Egypt enshrines the Islamic sharia into law?
That is far less clear. We need to first look at the maqasid of the sharia, which are widely accepted as binding under existing understandings of Article 2. Precisely what laws would thus be barred? The maqasid are not infinitely elastic, but they are so general that they could be stretched very far. Indeed, it would be difficult to put forth a non-controvertible invalidation of any legislative enactment primarily in terms of the maqasid.
But it would also be possible to use the maqasid to put forth a plausible argument striking down all sorts of provisions. Developed to aid sharia scholars in their interpretations, the maqasid were simply not designed to serve as clear constitutional norms in the hands of non-specialists. They play a considerable role in current public debates about implementing the spirit and not merely the letter of the law, but that is quite a different role from constituting definitive legal principles. It is thus impossible to evaluate what effect constitutionalizing them (as prevailing interpretations of the current Article 2 implicitly do) would have absent any consideration of which individuals or institutions are deploying them for guidance.
What of the more specific, definitive sharia-base rulings that would seem to give less room for interpretation? Will these necessitate rewriting significant parts of Egypt’s legal order? Or are there a similar set of loopholes that can leave the door open to ambiguity and argumentation? At first glance, such rules are so few in number that they would not seem to be that much of a restriction on legislation. But one entire area of law—hudud punishments—might easily be argued to fall within the category of definitive and unavoidable rules because they are often based directly on the words of Quranic passages rather than on extensive scholarly exegesis. Thus, it is possible that Article 2, under the emerging consensus interpretation, would require bringing Egypt’s criminal law in line with some sharia-based rules that often cause international concern.
Even here, however, there are loopholes—ones that are surprisingly large. Perhaps it would be more fair to their users to term them “windows” for interpretive flexibility, because they are employed not just by the cynical but also by those sincerely dedicated to applying the Islamic sharia to modern conditions. Loopholes or windows, it is often surprising who seeks to use them.
One window is a willingness to reinterpret even those sharia-based rules that have long been the subject of consensus among specialists. A similar one is using the tradition of Islamic jurisprudence to demand the most exacting forms of proof and render application very difficult. Devices like this have made it so hudud penalties are almost never implemented, even in societies that have them on the books (and Egypt does not).
The most notable example here is apostasy (abandoning one’s religion), which even scholars respected by the Islamist camp have argued needs to be reexamined. Some sharia specialists have claimed that the death penalty for apostasy was applicable under the category of hudud punishments only when it was associated with a threat to the community of Muslims at times of peril. In such circumstances it was a community defense against an act of betrayal or treason. But an ordinary renunciation of faith under stable circumstances—unaccompanied therefore by any threat to the beliefs, practices, and safety of Muslims—would not fall under hudud penalties and any sanction should be left to God.
A second loophole often used in modernist circles is the argument that the hudud cannot be applied because of prevailing economic conditions. Citing the tradition that the second caliph (or ruler), Umar, refused to inflict the prescribed punishment on thieves during a time of famine, some activists have claimed that in Egypt today, the state of the economy suggests a similar leniency. Therefore, if a state fails to provide for the basic needs of its citizens, it should not be inflicting harsh punishment on thieves. Such an argument is stunningly capacious, but it has been advanced by leading Brotherhood figures, at least since the 1950s and is deployed by some leaders today. And there is also a long tradition that allows difficult requirements to be overridden for the time being on the grounds of exigencies or social benefits.
Thus, while it might be said that the Brotherhood’s use of this loophole is implausibly extensive, the strategy does fit well with the movement’s preference for gradual change that coaxes (or nags) society along rather than presenting a sudden imposition that imposes hardships or backfires politically. Salafis, who view the Brotherhood as far too quick to embrace compromise on the grounds of political expediency, are much less likely to interpret hudud in this way.
It should thus be quite clear that for all the apparent broad consensus, prevailing ideas about the role of the Islamic sharia in Egypt’s legal and constitutional order could be pushed in some extremely different directions. And in that way, it becomes far more important to understand who is to be entrusted with interpreting and applying whatever sharia-based rules as it is to search for the precise meaning of various verbal formulas. How will Egypt’s SCC be structured? What should be the structure and role of state religious institutions, including al-Azhar?
What is the Muslim Brotherhood’s position on the Islamic sharia?
Much of the international concern about the Islamic sharia in Egypt stems from the growing political role of the Muslim Brotherhood and the party it founded, the Freedom and Justice Party. The Brotherhood has confused many (including, at times, its own members) by a variety of statements and proposals on the Islamic sharia. The movement’s confusing position stems from two impulses that pull its members in different directions.
First, the Brotherhood wants a political system that conforms fully and faithfully with Islamic norms, however broadly defined. That means that important Islamic values should be reflected in legislation; that the state should facilitate rather than obstruct the desire of Muslims to lead lives that conform to Islamic strictures; and that those with religious knowledge and training be consulted and be allowed to speak based on their training and expertise rather than be expected to tailor their interpretations to the political interests of high officials. The movement has therefore called for a stronger role for al-Azhar and for making the institution far more independent of the executive branch, which has dominated the institution by controlling its finances and senior positions for half a century.
Second, the Brotherhood emphasizes just as strongly change from below and the need for all Muslims to work to understand their religion and take responsibility for educating themselves. To place ultimate political authority for all religious questions in a small group of scholars smacks of the post-1979 Iranian model, one that the Brotherhood has consistently rejected as incompatible with Sunni Islam and with the movement’s own approach.
Thus, over the past few years, the Brotherhood has developed a series of confusing proposals. In 2007, the movement bowed to the first impulse when drafting a platform (never formally adopted) that suggested that legislation be presented to a body of religious scholars within al-Azhar in order to determine its conformity with the Islamic sharia. When that provoked a storm of criticism within and outside of the movement, the proposal was dropped. The idea has not been revived, but the Brotherhood’s momentary presidential candidate, Khairat al-Shater, made international headlines when he was quoted telling some religious scholars that he thought such figures should be consulted when new laws are considered.
The movement’s current position more closely reflects the second impulse of concentrating on Islamizing the society through gradual work rather than sudden legislative change. But even so, movement leaders clearly have not abandoned the idea of giving some role—albeit informal and based on persuasion and consultation rather than authoritative imposition—to religious scholars in the legislative process. (This is what likely led al-Shater to make his recent comment.) While not fully articulated, the movement’s current position seems to be that scholars on the Islamic sharia should be accorded the deference and respect that all specialists should receive, but that ultimate political authority should still lie in democratic structures.
What does the Islamic sharia say about the rights of women?
In general, the Islamic sharia is not gender-neutral in matters of personal status but instead establishes a differentiated web of rights and obligations on husbands and wives and sons and daughters. Broadly, husbands are expected to provide material support and a healthy home environment (failure to provide support or abuse can be grounds for a woman seeking a divorce). And wives are expected to accept their husbands’ authority. A husband can unilaterally divorce his wife; a wife (in the sharia-based Egyptian legal order) cannot do so, but can petition the court to order a divorce in cases when the husband fails his obligations. Custom is laid on top of sharia-based law—for instance, a prospective bridegroom might be expected to pledge a significant sum of money that is due to his fiancé if he divorces her, sometimes making his divorce rights extremely expensive to exercise.
Rather than arguing for a civil law or a completely gender-neutral law, advocates of women’s rights—out of a blend of genuine religious convictions, acceptance of political realities, and realization that juridical equality in an inegalitarian society can actually weaken subordinate parties—have focused most of their attention on mobilizing constituencies in support of interpretations of the Islamic sharia that grant women a stronger position. For instance, they successfully lobbied for an amendment to the personal status law allowing women to petition a court for divorce if they were willing to abandon most of their material rights and claims in the settlement. In doing so, they were able to call on some religious scholars in support of their position.
Islamist movements have sometimes questioned particular interpretations pertaining to women’s rights, but they generally have engaged directly in the debate and accepted the parliamentary-based legislation as binding. The Brotherhood’s flexibility on the issue is hardly infinite. For instance, the Freedom and Justice Party has singled out the Committee on the Elimination of Discrimination against Women for particular criticism, because of the claim that its provisions violate sharia-based rules about guardianship in the case of divorce.
Debate in Egypt is likely to center around very specific provisions of the personal status law. This includes the circumstances under which a wife can ask a court for divorce, the age of guardianship, or the age of marriage. The debate will have Salafis (and their extreme textualism) on one side and advocates of women’s rights (seeking to push the law as far as possible in the direction of increasing legal protections for women) on the other, leaving many political forces caught somewhere in the middle.
Thus, placing discussions on women’s rights and personal status within a sharia-based framework has had some real effects on the nature of the debate but not directly dictated the outcome.
How would the Islamic sharia apply to non-Muslim Egyptians?
Here the current approach of the Egyptian legal order is clear: each recognized religious community is free to have its own affairs governed by its own personal status law. Regular Egyptian courts regularly adjudicate such cases for all Egyptians, Muslims and non-Muslims alike, but simply shift the law applied; there are not separate courts for each religious community and the judges in personal status courts come out of the regular judiciary.
This leads to two problems for such groups. First, adherents of non-recognized faiths (most publicly members of the Bahai religion) have no clear legal status; even heterodox groups unrecognized by the state have no ability to follow their own beliefs and teachings.
Second, the system seems to encourage opportunistic conversions as a byproduct of marital disputes: a Coptic husband wishing to divorce his wife, for instance, might convert to a different Christian sect or even to Islam in order to make such a step possible. There has been some effort by Egyptian legal officials to work with Christian leaders in recent years to develop a uniform code of personal status for Christians to curtail this practice.
What should the West watch for in Egypt?
There is little in these debates that threaten Western security. But there are important implications for human rights and other values that Western actors hold dear. What makes the discussions about the Islamic sharia law so perplexing—and even occasionally alarming—for outsiders is the unfamiliarity of the basic concepts and terms.
Of course, the idea that religion should play a role in public life is familiar even where it is not widely accepted; and all sorts of states have some official status for a particular religion. But the debate about the Islamic sharia seems to pack a special punch, since it can move beyond hortatory and identity to specific and detailed legal norms.
And basic positions are not only unfamiliar to outsiders, they are also difficult to decode. Actors understood as “secular” raise no objection to a constitutional status for the Islamic sharia and self-proclaimed Islamists spout reassurances that they are focusing only on the sharia’s general goals, not its specific provisions.
If discussions about the Islamic sharia are simultaneously central to Egyptian politics and also indeterminate and even vague, does this mean that examining debates on the subject is seductive but pointless in the end? Not for long. The process of reconstructing the Egyptian political system may mean that however hazy current answers may be, there will soon be attempts to give them institutional expression.
But rather than trying to pin down the meanings of specific verbal formulas, observers who have the opportunity to ask questions focus instead on concrete and institutional questions. This includes, but is certainly not limited to, more thinking on:
What elements of Egypt’s current personal status code should be amended and what should they say?
What should be the structure of the SCC as it will likely have the authority to interpret any constitutional language on Islam?
How should al-Azhar be governed? What should be the nature of its role in the Egyptian state and degree of its social influence?
What should be the structure of other state religious institutions, such as Dar al-Ifta (the state’s mufti, responsible for delivering interpretations of Islamic law)?
What priority should be given to criminal law reform (on this issue, the sharia provisions tend to be hard to avoid and highly polarized)?
What should be the status of various international human rights instruments to which Egypt is a signatory? And who should be responsible for interpreting the existing reservations to those documents? (For example, Egypt’s ratification of the Committee on the Elimination of Discrimination against Women includes the following reservation regarding the document’s second article: “The Arab Republic of Egypt is willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Sharia.”)
It is quite likely that key political actors in Egypt have only just begun to think about who will define these rules and how they will be decided. But some issues have already forced themselves on the agenda. The Brotherhood, for instance, has begun drafting new legislation for the Constitutional Court and the governance of al-Azhar was the subject of a controversial decree-law issued by the country’s interim military rulers immediately before the current parliament was seated.
Thus, while both external observers and Egyptian political activists are likely still to be perplexed over these issues, the time for carrying on debates only in an abstract and theoretical level may rapidly be drawing to a close.
The author would like to thank Jonathan Brown of Georgetown University and Clark Lombardi of the University of Washington for their insights and corrections. All remaining errors are his.
Nathan Brown is a non-resident senior associate in the Middle East Program of the Carnegie Endowment for International Peace, and a professor of political science and international affairs at George Washington University.
From Guide to Egypt’s Transition, Carnegie Endowment for International Peace: http://carnegieendowment.org/2012/05/15/egypt-and-islamic-sharia-guide-for-perplexed/argb