CAIRO: Amr Shalakany, assistant professor of law and director of the LL.M program at the American University in Cairo, challenges the idea that the year 1883 was a watershed in the history of Egyptian jurisprudence, arguing that legal secularism existed in Egypt prior to that year.
Shalakany traces the changing definition of Sharia over the past two centuries, calling for more attention to how Sharia was actually implemented inside courts.
Shalakany, who obtained his MA degree from Harvard Law School, has authored pieces for several academic publications, such as Berkeley Journal of Middle East and Islamic Law, International Journal of Legal Information and Harvard International Law Journal.
Presenting a project proposal entitled “The Redefinition of Sharia in Modern Egyptian Legal Thought: 1798-Present, Shalakany has been selected recently as a Carnegie Scholar by the prestigious Carnegie Corporation of New York.
Daily News Egypt: Why did you choose this specific topic for your research?
Shalakany: I aim to assist in moving the discipline of Egyptian and Islamic law history towards a new historiographic paradigm based on alternative primary research materials.
What are the sources on which you are basing your research?
I build on recent scholarship, and conduct original archival research in newly discovered court records, to methodologically and substantively question 1883 as the year Egypt transitioned from Sharia to Western, secular law.
What is the significance of the year 1883 in the Egyptian legal history?
The significance of 1883 lies in the ensuing transformation of Islamic jurisprudence, triggered by the reforms adopted that year – a transformation by which Sharia was re-defined in scriptural terms that exclude civil courts and state laws as secular aberrations from the Sharia scope of religious law.
I claim this transformation was deeply influenced by contemporaneous developments in French legal thought, rendering the epistemology of important Muslim Brotherhood jurists of the postcolonial period (e.g. Sayyid Qutb and Abdel-Qader Ouda) much closer to the sociological jurisprudence of early 20th century scholars like François Gény and Georges Ripert in Paris than to the medieval Islamic jurists from whom these modern Muslim scholars claim intellectual lineage.
In your research, you trace the changing definition of Sharia over the past two centuries of Egyptian jurisprudence. Can you give us some glimpses of those changes?
By examining recently discovered pre-1883 court records, I demonstrate the existence of a dual judicial system in which judges shared jurisdiction with government-appointed officials who settled disputes in siyasa majalis, or civil councils, in accordance with state enacted law. These virtually unexamined court records indicate how the same dispute was often settled by both Sharia and siyasa judicial bodies, and that jurists, judges and litigants regarded this dual system as legitimate under Sharia at the time.
This assessment clashes, however, with the standard definition of Sharia that mainstream historians employ today, one that views Sharia as a legal system with exclusively scriptural bases in the Quran, Prophetic tradition or Sunna, and canonical juristic commentaries thereon. Methodologically, this scriptural definition lead mainstream historiography to downgrade these siyasa court records into just a secular exception to Sharia. As such, this position is also shared by the standard Muslim Brotherhood definition of Sharia as well.
How relevant is your research to contemporary calls for the return of Sharia?
A foundational premise has long ruled among historians of modern Egyptian law, namely that Egypt had an “Islamic legal system before 1883, and modernized into a “secular normative order from that year onwards. This premise is shared by Western ans Egyptian mainstream historians alike, both of whom generally describe the post-1883 development of Egyptian legal thought as riddled by anxieties over reconciling traditional Sharia principles and modern needs for legal reform.
The same premise also underpins ideological demands for the “return of the Sharia by Islamist political actors today, most prominently in the Muslim Brotherhood platform during the 2007 elections, calling for a full-scale review of Egypt’s legal system to assess its conformity with Sharia norms.
Methodologically, dominant post-1883 Egyptian legal history subscribes to a “modernization theory framework that pits Sharia as the opposite of Western secular law, a framework I challenge from the perspective of both comparative law and religious and cultural anthropology.
By connecting Egyptian legal thought across two centuries, I will demonstrate how a conceptually unique secularism existed under Sharia before 1883, and how the contemporary notion of Sharia demanded by Muslim Brotherhood jurists today is itself a “modern invention, deeply influenced by the jurisprudence of Western Europe, premised on scriptural theories of Civil Law origin, and discursively derived from the language of liberal legality.
