sharīʿa scripts

Brink Messick’s long-awaited Sharīʿa Scripts is finally out at Columbia University Press:

https://cup.columbia.edu/book/sharia-scripts/9780231178747

Multi-century approaches of the sharīʿa have regrettably transformed law into a banal history of ideas without much connection to practice. Messick’s Sharīʿa Scripts takes the sharīʿa right from the economy of the local, that of central Yemen, and places research at a micro level. Historical anthropology makes possible the tracing of genealogical lines of power relations, and the depiction of narratives and discourses in relation to local practices. This book, which takes the logic of texts and their practices to new heights, stands out as a masterful contribution to sharīʿa studies worldwide.

Brink Messick’s book-manuscript on sharia discourses in modern Yemen comes as a welcome change to a literature predominated by studies of long durations of “Islamic law” and the sharia. Messick’s main contention that the sharia is only meaningful as a “local enterprise” (212) in the space and time of a particular territory and political economy is a major endeavor to understand the sharia in all its concreteness as a discursive reality within a régime of truth. Thanks to Columbia University Press for publishing the manuscript in its integrity, without major cuts or changes. This is a much needed book that will open sharia studies to new horizons, and would serve as reference for scholars and students. Even though Messick’s preoccupation centers on “legal” practices and discourses, the book could nevertheless serve as a template for an understanding of Islamicate societies in terms of micro-discursive genealogies of power and régimes of truth.

For years I have been using Messick’s Calligraphic State in my seminars as a must-read reference to understand how sharia texts in all their diversity are constructed in a space and time of competing discourses—Bakhtin’s chronotope model of a space-time configuration of competing pretenders. Messick’s present book provides an even more refined optic for reading texts as x-rays of the power-relations in the archival layers of historical formations to which they belong. This new optic of reading texts in their space and time dimensions demands refined micro-hermeneutical techniques for the power relations to come fully to light, as neither space nor time as categories of knowledge are privileged, since they are utterly interdependent.

Most studies of Islamic law take as their point of departure the postulate that the sharia binds together fifteen centuries of rules and regulations for the societies that are governed under such precepts. In this multi-century approach what is favored, besides the overall coherence of the enterprise of the fiqh (the interpretations of the sharia, which are distributed into a multitude of madhāhib, or law schools), is discourse over practice, or theory over the contingencies of the terrains that are governed by sharia law. Such approaches, which predominate the research in Arab and Islamicate societies and in the West as well, leave us with all kinds of problems and unsolved issues. First of all, they assume that our understanding of sharia law is limited to (or predominated by) the doctrinal level, that is, the discourses that are generated in the libraries of the fiqh manuals across centuries, which in their totality have a level of coherence that cannot be achieved in practice. Second of all, the archival material, whenever available (in particular for the Ottoman centuries), is supposed to be an application of the grand theory as generated by the various madhāhib. There is thus undeniably a “precedence” of the doctrinal over the archival, in the same way that there is a “precedence” of the written text over the oral, or what is said over the seen.

Brink Messick’s book on Yemen in its pre-Republican period comes as a much needed enterprise that challenges the precedence of the doctrinal over the archival, or the library of the fiqh over the archive, or the universal concept over the regional. This is a rare and sophisticated endeavor which points at how much work and patience are needed once we move from the macro to the micro-historical in all its textual complexities (322). Messick has already outlined his method in his Calligraphic State, published in 1993, and if the present manuscript on sharia scripts in Yemen took so much time to materialize it is because micro analysis is more demanding in its execution than anything that the multi-century approach would dare to accomplish.

To begin with, Messick operates within a broad division that places the fiqh manuals in a “library” framework, which stands on its own in the face of the various “archival” materials. The latter are comprised for the most part of the texts produced by the sharia courts and what the parties in conflict or in a notarial act keep in private in the sanctity of their own homes as evidence that a transaction has been accomplished. Such documents therefore “register” the contractual act that the parties must attend to.

However, Messick is not satisfied with such broad division of “library” and “archive” on its own. Following Mikhail Bakhtin he conceptualizes three levels of textual practices (or discursive practices). There is one that is “primary” and which consists of all those document-texts that are kept in the “privacy” of their holders, followed by the “secondary” material of the sharia courts and other “public” instances, and, finally, the “tertiary” level (sphere) of the fiqh manuals in their various genres (tafsīr, shurūṭ, and fatāwa). Those various levels are obviously not separate, they are mutually interdependent, and rely on each other’s existence for their overall organization. Thus, the “library” is the “tertiary” sphere following Bakhtin’s classification, while the “archive” is formed by the “primary” and “secondary” texts, or the “private” and “public,” following a modern civil-law classification. There is no “primacy,” however, of one level over the other. Thus, if the fiqh happens to be the “tertiary” textual discursive level (312), the implication here is that it does not necessarily feeds itself on the practices of the courts, nor are the courts obligated to use the “upper” doctrinal corpus as their framework of reference; what they in fact do in most instances is allude to the doctrinal works rather than cite them directly, even though this possibility is, of course, not to be excluded. For example, when it comes to the practice of writing fatwas, which is commonly assumed to be the most “practical” aspect of sharia law, “there is no such direct connection between local fatwā-giving and court processes” (159). Yet, the fatwas are somehow “needed,” a need that remains elusive at best, particularly in pre-Republican imamic Yemen where the presence of an interpreting imam roots the fatwa in a régime of truth—and provides it with a much needed legitimacy—though of a much higher symbolic authority than that of the mufti in Sunni Islam.

Because in the interplay between writing and the oral and aural, there is no primacy or formal hierarchy (hence an absence of logocentrism which would have pleased Jacques Derrida), “documentary evidence does not stand by itself” (134). Presenting a document as evidence is a complex program of “inscribed writing” (144), which goes through the various stages of dictation (imlāʾ), witnessing, oral reading, prior to creating an authoritative form of oral and aural transmission (130). For instance, dictation involves on its own, first, a retention of the dictated text in memory, and, second, the inscription of a transformed version in writing, both of which constitute a form of “knowledge.” What is therefore at stake in oral reading and dictation is memory, the material trace, and expression (133). I look at the latter as various topoi of practice, which bypass the rigidity of formal hierarchies, and which make the analysis of discourse possible. The traditional macro studies of the fiqh corpuses, which tend to bracket practice (which by definition operates at a micro level in relation to a territory and political economy), are unable to analyze the fiqh texts as discourses—the latter would eo ipso assume their operation only in relation to certain practices.

We thus have a multitude of juxtaposed texts and archival formats operating at different discursive levels with no primacy as such, which makes Bakhtin’s classification of primary, secondary, and tertiary, which in this instance translates as notarial documents, courts processes, and fiqh doctrinal corpus, a bit problematic, even though it serves at delineating discursive series that could be viewed as autonomous in their own right. What in effect Messick is attempting is a direct immersion in practice, without the need to make false delineations like theory versus practice, or the doctrinal versus the court practices. For example, when in Chapter 10 contracts are examined, the question of contact-law versus contract is not portrayed as operating within a formal hierarchy, say, that a contract drafted in court must obey clauses of contract-law. The reason for this absence of a formal hierarchy is that once we establish practice—hence discursive practices—as our main entry into the system, the traditional hierarchies, which generations of scholars have been operating with, receive a new meaning, if at all. We may also not need them at all. For example, when it comes to contracts and the laws derived from the fiqh, Messick avoids the rigid dualism and operates instead in terms of composition, modeling, and models (340). Practice here means “understanding the textual properties” (299) of a text which could be a document emanating from a sharia court, a Zaydī fiqh manual, or an official bureaucratic document. Moreover, this approach has to account for evidential texts that could be written or spoken. What is crucial here, when it comes to the written and spoken, is, again, there is no primacy of one over the other. The same could be said about the spoken and the seen: the say is not to see, parler n’est pas voir, as Foucault would say, following Maurice Blanchot.

By taking practices and their discourses as his entry point, Messick is able to extract from the various discursive layers under analysis themes (or topoi) that may not have been apparent at face value. Of particular importance in this regard is the theme of custom (understood as ʿāda or ʿurf), which traditionally receives the treatment of an “outside” to written law, that is to say, how much of the latter has been “affected” by, or acknowledged as, custom or customary law? What kind of margin does written law tolerate within its corpus as far as custom is concerned? Messick’s approach in contrast looks at the place of custom “not outside, but inside such textual formation” (240), which implies an attentiveness to the “internal duration to the act” of drafting documents. To elaborate, in the grand division between the abstract non-historical “model” texts which serve as ready-made templates, on the one hand, and the historical documents which have been drafted by notaries, judges and their scribes on the other, it is indeed custom that plays on that internal duration to the act of writing (which in turn is an outcome of the oral and aural); hence it is custom that configures the historicity of a document (361).

The immersion into practice is demanding, first of all because it operates primarily and makes sense at a micro-level, and second, because a genealogy of texts is necessary. In other words, unlike the multi-century-macro approach which is historicist, in the sense that it is a general history of ideas that sees each text the product of its own period (even though the roots to this period in relation to practice remains by and large unexplored), genealogy in contrast goes further than that, as it looks at texts as operating in clusters. In the case of the Zaydī fiqh, for example, the late fourteenth-century Book of Flowers was still operative in the pre-Republican period, thanks in part to the interpretations and commentaries in the 1930s and 1940s, of what became The Gilded Crown, with the nineteenth-century interlude of the predominantly critical work of the “Sunni” Shawkānī in between the original matn text (which represented the condensation of the views of the five early imams) and the subsequent tafsīr and sharḥ.

What is crucial here is the awareness that a twentieth-century work like The Gilded Crown is itself a work of previous centuries—a product of archeological layers under different historical formations. The other side of genealogy is an attention to the author–writer paradigm, which Messick borrows from Foucault.

14–15: Where library discourse embodied a set of culturally and historically specific “author-functions,” archival discourse, in contrast, comprised distinct writer-functions. I adopt the plural both for Foucault’s well-known term and for my proposed archival counterpart to account for the distinct genres that existed within both the library and the archive. Following Foucault, both conceptions should be understood as defining functions that provide a basis for what he termed “a typology of discourse.” In this discursive sense, but in different genres, it was possible for the same individual to be both an author and a writer.

I want to question the author-function which is attributed to the library discourse (the fiqh doctrinal manuals). The assumption here is that both library and archive are practices and discourses (or discursive practices): should we then limit the archive to a writer-function, while the library is endowed with the “privilege” of the author?

There are all kinds of writing roles in those texts, the library and archival material: that of author, writer, editor, narrator, signatory, but they are not all present in one text. For example, a contract has a guarantor, but not an author; a letter has a signatory, but not necessarily an author. But a letter drafted by a Zaydī imam has an author, because it could be inscribed within a broader corpus, hence could be disseminated and quoted on the basis of its authorship, due to the status that this particular imam enjoys within the community of scholars. The idea here is that for a text to have an author it must be inscribed within a broader corpus, say, the œuvre of a particular author as the totality of his works. A court verdict signed and sealed by a judge has a writer but does not have an author on the basis that the judge cannot attach his text to a broader “work” of his own making. In Islamic courts verdicts do not serve as precedent as they do in common law, hence a decision by a judge remains localized without authorship. Doctrinal texts in contrast have that authorial quality, because each work is attributed to an author who is more than the writer of the text. Moreover, besides being attached to an author, say, a Zaydī imam, a fiqh manual is part of a larger ensemble of texts belonging to tradition. Messick is right when he traces the genealogy of the “texts that matter” in pre-Republican Yemen to their fourteenth- and nineteenth-century roots: it is such genealogy that makes both discourse and authorship possible. What is probably unique about this kind of authorship where the “school” (madhhab) is predominant is the system of cross-referencing among the “authorities” of the madhhab which spans across many centuries. In the scientific and literary European genealogies analyzed by Foucault, the discovery of common discursive layers is much harder, due primarily to an absence of direct cross-referencing.

I find a limit to this argument, in particular when it comes to the “library” of doctrinal texts. Not that there is anything wrong with attaching authors to such texts, but I question whether the fiqh manuals are intended to be referred to specific authors in the first place. Let us recall the tripartite division which is borrowed from Bakhtin, where “primary” and “secondary” coincide with the archival materials used by individuals and courts alike. Besides that such “archival” material is timely, it operates only by attaching names, signatures, and seals to a document. Moreover, the concerned parties and their witnesses are the names that matter, not the writer of the document. The library texts—the tertiary level—share an a-temporality which dissociates the text from its nominal writer-author.

15: Such usage separates a named author or writer from a discursive function, historical agency from textual form. For library texts, this is to distinguish attributions to (and also in-text citations of) specific authors from the patterned avoidance of the proper name. By the same token, the possibility of dating a book or an opinion is distinct from the a-temporal nature of its textual discourse. Among archival texts, in contrast, we enter a realm defined by identified handwriting and the signed name of the court or notarial writer and, in certain periods, a personal seal. Yet the discourse of the proper name that was characteristic of an archival text pertained not to such third-party secretaries or notaries, who in fact wrote and signed, but rather to the principal parties, the individuals who entered litigation or a contractual undertaking but who (usually) did not sign the resulting documentation.

What I find of value in this claim is the “separation” between author and discourse for the library doctrinal texts, but we need to find out why this is the case. The other matter of contention is whether between library and archive there is another “separation” regarding the proper name attached to the text.

Messick follows a close reading of Foucault on the notion of the author, but he misses a distinction that could be useful between statement (énoncé) and sentence (phrase). A text is obviously composed of sentences which refer explicitly or implicitly to a grammatical “I,” even if the text is drafted in a third-person mode. This “I” which stands on behalf of the writer, and could as well refer to an author, is what brings the text together. When a series of texts are juxtaposed together as belonging to a school of thought or way of thinking it is by virtue of their homogeneous nature. Because anyone can attach the grammatical “I” to a sentence, the claimed authorship is an external variable.

Foucault’s main contention is that statements are different in this regard. First of all, statements are rare because they straddle between several heterogeneous discursive layers. Statements make discourse possible precisely because they are based on intrinsic variables. If the phrase derives from a subject of enunciation (sujet d’énonciation), the subject that pronounces it, the statement by contrast does not derive from its subject: it is indeed the place of the subject that derives from the statement (le sujet de l’énoncé). The place of the subject is in turn an anonymous “we” (le “on” anonyme). In sum, we need to distinguish between a subject of enunciation for sentences and phrases, and a subject of the statement, which tends to be anonymous.

Which brings us back to the doctrinal fiqh manuals. There is a common perception that the fiqh manuals are only nominally authored, since they represent “compilations” (tajmīʿ) of well-known opinions from previous generations of scholars. Each generation compiles and re-arranges according to the relevant criteria of the period: one has to be faithful to the tradition of the madhhab, but at the same time one has to adapt to new situations, as new problems arise which would trigger the hermeneutical circle. The author-faqīh becomes therefore a “compiler” who re-interprets and re-organizes the old texts, which become “his” own, as well as belonging to the madhhab, based on the criteria needed for his period. The notion of “compilation” is at times looked upon condescendingly, as if it is uncreative, lacks authorship, leading to an infernal repetition of the same, hence to a disconnect with the social and economic reality of the time. This is particularly true, we are told, of the Ottoman period, as researchers typically shun the doctrinal manuals in favor of the more “real” sharia courts and other bureaucratic documents.

Messick’s book is a direct response to such condescending views: all discursive levels have realities of their own, and those realities overlap and share languages and grammars, albeit they play different roles. However, in light of the above proposals, we can reframe our take on the various discursive levels a bit differently. Compilations do not in their essence refer to an author or a subject of enunciation (sujet d’énonciation), but to a position of the subject (sujet de l’énoncé). They are therefore, together with the primary and secondary levels, embedded into an archive within a particular historical formation. The latter is inscribed within a diagram of power-relations which produces the institutional apparatuses of knowledge. Strictly speaking, therefore, I would argue that the primary, secondary, and tertiary discursive levels, in their institutionalized organization between library and archive, are all “archival,” whereby the “archive” is inscribed with stratified historical formations. They are all discursive practices with nominal authors and a collective “we” as reference.

Which brings me to my last point, regarding the presence (or lack) of a third-party adjudication in the Zaydī system and in the fiqh at large. By this I mean the presence of a universal process that would accommodate any person as member of the community (or “nation”) irrespective of religion, rank, and status. When the delivery of truth by any member of the community is accepted for what it is, seeing becomes of primordial importance in the process of verification and validation of witnessing. That’s the kind of transition that Yemen went through—a process that is by far from over—when the Zaydī imamate, as a polity, was over in 1962 and the country became a civil-law republic. In a civil-law political economy, where the reference to imamic traditions is not anymore the norm, labor becomes finite, as its reference is a competitive market economy where the traditional notions of equity and fairness are not normative, at least not predominantly so. The modes of truth that produce knowledge are based on a process of verification where the market economy serves a reference.

Even though Messick’s book is mostly devoted to pre-Republican Yemen, it nonetheless prepares us well for the transition that Yemen has been going through since the Zaydī imamate was lost. To wit, a hidden key notion in Messick’s analysis is the concept of governmentality, or gouvernementalité, understood as the “mindset” (mentalité) of “government”—not government in the strict Anglo–American sense of the term, but as the management of relations of truth and verification, and the power relations that they generate in the space of a political economy. Under the Zaydī imamate, and in contrast to the land tenure systems of the Ottomans, land was mostly private (milk), and the document of sale-purchase, known as baṣīra, was predominant (345). The wager here is to follow up such contracts under civil law when the régimes of truth and governmentality are altered. Maybe this could be the topic for another book which is already implied in this one.

Zouhair Ghazzal

Professor of history and social sciences

Loyola University, Chicago

zghazza@luc.edu

egyptian secularism?

Agrama, Hussein Ali. Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt. University of Chicago Press, 2012. ISBN 0226010694. $27.50.

Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity. Stanford University Press, 2003.

Asad, Talal, Wendy Brown, Judith Butler, and Saba Mahmood. Is Critique Secular?: Blasphemy, Injury, and Free Speech. 2nd Revised edition. Fordham University Press, 2013.

Yavuz, M. Hakan. Islamic Political Identity in Turkey. Oxford University Press, 2005.

Article 2 of the Egyptian constitution states that “Islam is the religion of the State, Arabic is its official language, and the principles of the Islamic sharia are the main source of law.” The Syrian constitution carries a similar clause, except that the sharia is substituted for fiqh, the various law schools (madhāhib) which represent different interpretations of the holy sharia, based on the Qur’an and hadith (the sayings and doings of the Prophet Muhammad). The clause in the Syrian constitution on the sources of law may be historically and hermeneutically more accurate, as we are dealing more with interpretations of the sharia than with the holy law itself, which stands as divine, hence could only be approached hermeneutically: the corpus of the fiqh, in its various Sunni and Shi‘i law schools, does indeed assume a principle of contingency, as each interpretation would be contingent on both the school that carries it and the jurist that has propounded it.

The question, however, as raised by Hussein Ali Agrama’s Questioning Secularism, is, would such constitutional clauses make a country like Egypt more “religious” than “secular”? Does Egypt have a “secular” future? The anthropologist Talal Asad, Agrama’s mentor, has differentiated between the concepts of the “secular” and “secularism,” tracing the genealogy of the former to medieval Christianity, in its attempt to delineate a “profane” discursive field that would stand outside religion proper, while the latter is a nineteenth-century phenomenon on a par with nationalism and the nation-state, both of which require an ideology of integration into a “society” of autonomous individuals. Various European nations could thus be described as having gone through a process of secularization, which would imply implementing the doctrine of secularism as a discursive practice that would separate the domain of the modern state from that of the religious proper. For example, a newly formed nation like Turkey, which, in the wake of the dismemberment of the Ottoman Empire after the First World War, proclaimed the secular nature of its state apparatuses since its 1923–27 constitution, had to go through a process of secularization whereby the Turkish élite, under the leadership of Mustafa Kemal Atatürk, disbanded many of the most famed religious institutions of Sunni Islam, beginning with the venerable caliphate and the position of Shaykh ul-Islam.

Agrama is frank that when he started his research on the Egyptian judiciary in the 1990s, he wasn’t much interested in secularism per se. What seems to have changed his mind was the Nasr Hamid Abu Zayd case, the University of Cairo professor who was accused of apostasy in his views regarding the interpretation of the Qur’an and scriptures, and was ultimately forced to divorce his Muslim wife through an order that originated from a personal status court. When the Cairo Appeals Court declared Abu Zayd an apostate, it wrote in its judgment that

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions…and belief (i‘tiqād). 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’s being self, belonging to his domain of secrecy. (Agrama 50)

Here Agrama seems to be missing the point in his rush to interpret the Court’s judgment:

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. (Agrama 51)

Agrama’s interpretation misses completely the distinction, clearly demarcated by the Court, between the internality of belief, on the one hand, and the externality of apostasy on the other. It is therefore not (at least primarily) a question of “freedom” to believe or not believe for the subject, but in the externalization of acts (including speech) which may or may not signal and internal belief. What the Court clearly stated was that as long as belief, being a purely internal phenomenon without any external manifestation, it has no legal consequence. No judge could judge me on my belief for the simple reason that it is internal, hence invisible in the eyes of justice and other mortals. I could get in trouble for stating—which in itself is an act of externalization related to speech—a religious opinion, not because it necessarily reflects an internal belief of mine, but simply because it is, in the language of the Court, a “material act” or an “external being,” which could be the subject of a counter-opinion, a judgment, or a lawsuit. In other words, the Court would not care less about my internal beliefs, and whether there is a “correlation” between my core beliefs and my external acts, for the simple reason that we only have knowledge of and can only judge the latter. Put simply, the expression “freedom of belief” is meaningless, as belief is internal, and there is no one to judge me on it. It is therefore neither free nor restricted.

The problem, however, in the Abu Zayd case, is not simply that he did externalize—in the form of written texts—what he may or may not have believed in regarding his interpretations of the Qur’an and scriptures. Abu Zayd could have made the rightful claim for his right of ijtihād, that of personal interpretation and reasoning, but, here again, the Court of Cassation, which has sustained the decision of the lower Appeals Court, made it clear that the entire text of the Qur’an is not to be subjected to personal reasoning, except for verses that are not straight-forward and clear enough, or have no other verses to support them (Agrama 52). So, once more, the crucial matter, in the case of apostasy, is not one of “freedom of belief,” but its externalization in an act (speech act or otherwise) that could be assessed and judged. Once externalized in publications, as Abu Zayd did in his numerous academic writings, the various courts found it legitimate to intervene, not, however, on the basis of freedom of belief. Belief is simply, for those secular-religious courts, the noumenal unknown, about which nothing could be stated, and regarding which the courts have nothing to say or judge.

Here we need to address a couple of related issues. First of all, where does this separation between the internality of belief and externalization of apostasy come from? Is it Islamic (established in the fiqh, philosophy, or theology)? Or is it unrelated to Islam? What are its repercussions on the debate between religion and secularism? In my view, the importance of this matter stems from the fact that such position would point at broader differences with Christianity, and for that very reason, the religious–secularist debate cannot be solely addressed in terms of a contextualization of a particular religion based on its practices, for instance, court practices. What needs to be addressed are the broader issues of truth, belief, and the externalization of belief across religious experiences.

Talal Asad, an astute genealogist in line with the likes of Nietzsche and Foucault, and Agrama’s mentor, noted the following regarding the Abu Zayd case:

Disbelief incurs no legal punishment; even the Qur’an stipulates no worldly punishment for disbelief. In the classical law, punishment for apostasy is justified on the grounds of its political and social consequences, not of entertaining false doctrine itself. Put another way, insofar as the law concerns itself with disbelief, it is not a matter of its propositional untruth but of a solemn social relationship being openly repudiated (“being unfaithful”). Legally, apostasy (ridda, kufr) can therefore be established only on the basis of the functioning of external signs (including public speech or writing, publicly visible behavior), never on the basis of inferred or forcibly extracted internal belief. (Asad et al. 36–7)

From Max Weber to Marcel Gauchet, up to Asad’s own Genealogies of Religion, it has often been pointed out that since medieval Christendom it has become customary to question this internal invisible motivation precisely “on the basis of inferred or forcibly extracted internal belief.” In his groundbreaking Genealogies, Asad documents at great length how in medieval Christendom pain and truth came hand-in-hand in the inquisitorial institution of judicial torture in order to extract a truthful confession. What this means is that, unlike in Islamdom, it mattered to know what the internal motivations and beliefs of a subject were. They had to be extracted by force and externalized. Which to put it bluntly, Christianity demarcates itself from Islam and other systems of belief in placing the burden of proof and socialization on the individual and his or her individual consciousness. Which makes Christianity more universal in that the requirements for social and religious requirements into the community (communitas) are more demanding to say the least. The difference between the secular and sacred, since medieval Christianity, may be seen in the notion of a communitas whereby there is an intense community spirit propelled by a common ritual, the feeling of great social equality, solidarity, and togetherness. Communitas is therefore the experience of people experiencing liminality together. The secular by contrast focuses more on structure, on what needs to be done together for the sake of the survival of the community. When Europe moved to modernity, this common structure implied the nation, nationalism, and the nation-state. What is important for our purposes, however, is that this transition from the religious to the secular not only needs to be historically contextualized, but more importantly, it is itself set within religious parameters which are determined by the essence of the system of religious beliefs to which a community belongs. In short, an Islamicate society like Egypt, in process of secularization, would experience the spirit of a secular community differently from any European community, due precisely to Islamicate principles.

This internality–subjectivity of belief versus the externality–objectivity of a religious behavior (e.g. blasphemy) operates perfectly well even within the strict confines of a secularist space of an Islamicate society like Turkey. Turkey went secular in 1924 during the formative period of the Turkish Republic, modeling its “laic” law, which separated state institutions from various religious powers, more after French laïcité (officially established in the 1905 French law on the Separation of the Churches and the State) than American secularism per se. If laïque in its original Greek meaning is that which “belongs to the people,” hence, in its later post-Revolution meaning, would refer to that common political good, the body politic of the nation which should not be monopolized by clerical power, then to “laicize” would entail more radical measures than secularization proper. In effect, to laicize would not be limited to the removal of clerical power and symbols only, or the secularization of the state, as it would be more radical than that: namely, the banning of religious symbols (and symbolisms) from public institutions and public life. Hence a cross, which would symbolize Christian values, would be banned from the person who is wearing it in public, or at least within the confines of a public institution that preaches laïcité.

The point here, at least in relation to Egyptian secularism, is what happens when the political space of a modern nation-state officially declared secular, or better still, laïque, with all the French connotations of that term, which the Turkish Kemalist Republican élite had wholeheartedly assumed and staunchly protected (even if that implied in the post-World War II era one military coup after another in order to protect Turkish Kemalist secularism). Does such a situation imply a complete reversal to Egyptian secularism, which is not openly declared, but only negotiated piecemeal on every occasion, whether implying a judicial verdict or not?

Consider, for example, what happened in Turkey in 1998, amid the 1997 military coup that banned “Islamist” parties of the likes of the Refah and Fazilet, which brought down the successful government of the Refah leader Necmettin Erbakan. In 1998 the Constitutional Court (CC) took aim at redefining secularism in theory and practice in light of what it saw as “serious transgressions” from the practitioners of the banned Islamist parties. Before handing down its decision, the CC redefined secularism as “the way of life,” as the only officially sanctioned “regulator of political, social and cultural life of the society.” The central goal of Kemalism was defined as being a political, social, and cultural system “free of any religious influence or presence. Religion, for the CC, only can be tolerated in the private conscience of an individual, and any externalization or reflection of religiosity in the public domain is defined as an antisecular act against the principles of Kemalist secularism. The CC decision also alludes to “the different nature of secularism in Turkey on the basis of the unique characteristics of Islam and the sociohistorical context of Turkey.” Indeed, the court defines religion in opposition to secularism and argues that “religion regulates the inner aspect of the individual whereas secularism regulates the outer aspect of the individual.” (Yavuz 247)

What is remarkable here is that between Egypt which would not adopt an open secularist stance, and Turkey where secularism is staunchly protected in the constitution, there is that common view that belief in Islam rests on the duality between an internalized–subjective attitude which could always be tolerated as such by the official state authorities—precisely because it remains a Kantian noumenal invisible—versus a parallel attitude of belief which is externalized and rendered visible by the practicers themselves. As belief remains subjective and internalized, hence unknown to state and judicial authorities, as long as the actor-individual-subject would not publicly externalize it, the externalization of religious belief, however, once open to the public, could be subjected to state and judicial scrutiny. That’s at least the logic behind the decisions taken by both the Egyptian supreme court in the case of Abu Zayd’s alleged apostasy, and, roughly the same time, in the late 1990s, by the Turkish CC regarding the practices of members of Islamist parties. What is remarkable in both instances is, whether the system is openly based on sharia law or secularist, it still operates within the duality of internality and externality of belief. As the likes of Talal Asad, Michel Foucault, and Marcel Gauchet have argued, such an attitude is not that of Christianity, which beginning in medieval times, extracted and objectified internal belief, even if that meant judicial torture. One could argue in favor of a principle of universality in Christianity in that the practices of integration achieve a disciplinary status, whereby the individual is integrated within the community of believers based on internal acceptance of the faith, which runs deep and is not to be limited to externalized rituals of admission or otherwise. In Islamdom by contrast, allegiance to the faith and umma is left to the observance of externalized rituals, which, if not in conformity to the principles of Islam, could be subject to punishment and persecution. Thus, when the Turkish CC claims that “religion regulates the inner aspect of the individual,” one should cautiously add as a remainder that for a religion like Christianity such regulation of the inner life must be externalized, controlled, and disciplined, otherwise adherence to the faith would be meaningless. And when the same CC adds that “secularism regulates the outer aspect of the individual,” it is Islamdom that regulates faith in terms of an internality that cannot be monitored and an externality that could be subject to judicial sanctions. As such, Turkish secularism is an outcome of Islamic belief in the way it demarcates the internal from the external.

Which leads us to an uncanny position when it comes to comparing Egyptian with Turkish secularism. In both instances, Islamic faith has to be externalized in order to be subject to judicial consequences. Without that awry process of externalization, the judiciary would be at a loss, as it would be unable to “read” what is in the mind of the believer. A case in point was when the CC used statements by the Refah Party as examples of antisecular activities: “the headscarf must be free in the universities” and “the right to choose your own legal system, including the sharia,” as examples set to deconstruct the true nature of Kemalist secularism. (Yavuz 247)

How do we then study secularism when, as is the case in Egypt, not only it is not overtly declared as a state policy, but the Constitution openly acknowledges its debt to sharia law? Should we read secularism in between the lines, pretending that we see it operating under certain circumstances—e.g. the Abu Zayd case—even though it remains without official declaration? Agrama’s solution to this methodological impasse is to object to any reading that would place Egypt either on one side or the other. His stance is that, of course, Egypt is a modern nation-state, which means subjecting individual citizens to an allegiance to political power on a national scale, and to disciplinary normative power. Does it therefore make sense to declare Egypt religious simply on the basis that its constitution openly declares the sharia as the source for modern law? Agrama’s démarche, by refusing to take a stance on this, seems set within a modernist paradigm that modernization is no simple matter and that “things are not what they appear on the surface.” He therefore misses the opportunity to explore the difference between an open declaration of secularism, as is the case in Turkey, and one where it is not openly declared, leaving sharia law—at least in principle—the source of all law. Here it is not enough, as Agrama does, to claim that even though sharia law remains the source, Egyptian law is by and large historically Napoleonic, and that even sharia law must subject itself to secularism. Such claim would, indeed, not free us from raising the issue as to why Egypt did not openly adopt secularism as Turkey did. And would that have made any difference in the practices of law? To wit, if secularism is such an important component of the modern nation-state, why isn’t openly declared and practiced as such?

Maybe what is needed here is more than a smart postmodernist playfulness. Class configuration and antagonism, the possibility of a hegemonic élite (in the sense of Gramsci) that governs civil society, and the stability of the hegemonic formation, are all factors that would play in favor of secularism. Thus, in the case of Turkey for example, what became the Turkish Republic in the wake of dismantlement of the Ottoman Empire was composed of an élitist configuration, composed of men in the military, landowners, industrialists and financiers, intellectuals and independents, with much stronger ties than any other country on the eastern Mediterranean. Moreover, the Turkish élite was beefed up by all kinds of officials, civil or military, who had to abandon their posts in the multi-ethnic peripheries to join the new Republic upon the Empire’s demise. The point here is that what ultimately became “Turkey” as nation-state was already in the very heart of the Mediterranean as the Empire’s center. The Turkish élites were for centuries debating major issues on the future of their Empire, and that pattern was inherited when the Republic came into being. The Kemalist hegemonic ruling group was composed, in its early phase, of militaries, intellectuals, landowners, industrialists and financiers. As such, it was not limited to a single dominating class or group, but it was an assortment of groups (or fractions of classes) and individuals that made their domination over civil society possible. Here the ideology of secularism was primarily destined to weaken the bonds between the religious establishment and society, attempting to render them obsolete by neutralizing them through a secularist public space, which precisely would not have been possible were it not for the hegemonic structure.

Egypt, by contrast, lacked such hegemonic structure. Historically, the Wafd party, instituted in 1919 in the wake of the Versailles Peace Conference, created a “corporatist” culture that would absorb diverse groups, including representatives of the working class and trade unions. The corporatist culture implied a loose assortment of societal elements that would weaken even further with the British gradual withdrawal from the political scene. That was already visible amid the Anglo-Egyptian treaty in 1936, and by the 1940s the old establishment was in full crisis mode, divided between a weakened Wafd,  workers and trade unionists attempting to create their own autonomous working class system of representation, and an unpopular monarchy. The 1952 Free Officers’ revolution only capitalized on such crisis by instituting its own corporatist and populist political space, which is still present, in spite of the fall of the Mubarak régime in early 2011. In sum, at no point in Egyptian history of the last century was there a stable class configuration that would have opted for secularism as an official state policy. Unstable class configurations in Europe and developing countries would invariably lead to a mixture of corporatism, populism, and fascism, which tend to harness on the existing cultures rather than challenge them with anything “alien.”

As Agrama seems uninterested in raising the issue as to why Egypt opted for a “bargaining with secularism” rather than secularism as an official policy, his Questioning Secularism hinges on a defensive apologetic mode of reasoning whenever the Islamists seem on the lead. Take for example the Abu Zayd case, which, simply on procedural matters, would have been unthinkable in Turkey. The principle that the petitioners had employed was dubbed as the ḥisba, defined within Islam as “the commanding of the good when it is manifestly neglected, and the forbidding of the evil when its practice is manifest.” It goes without saying that the principle of ḥisba is historically determined, and when used in different historical contexts, could lead to a variation of meanings and interpretations based on how the users at a specific juncture want to operate with such principle. In the context of modern Egypt, therefore, Agrama argues, “the principle and practice of ḥisba acquires a distinctive thrust and import through and within the Egyptian law. While ḥisba, in its classical sharia 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 public order.” (Agrama 20) So in order to bypass the manifest contradictions between secular law and sharia, Agrama’s argument “liberalizes” the ḥisba in the context of Egyptian liberalism and secularism. The ḥisba is no more an “irrational aberration” (Agrama 19) that would not match with its classical Islamic precepts. Instead, it becomes an operative concept in relation to Egyptian secular law. The truth, however, is no matter how we contextualize ḥisba, the fact remains that a professor at Cairo University in the 1990s has been declared apostate by the Appeals Court, estranging him from his wife, declaring his marriage null and void, and wrecking apart his private and public life. First of all, Agrama is here wrong at characterizing the ḥisba in its classical premodern connotations as a “cultivation of the self,” which genealogically is more a medieval Christian concept that involves an interiorizing of belief than an Islamic one, while in modern times it is meant at “protecting the public order.” In both instances, the classical and modern interpretations of ḥisba, both operate, as the higher court argued, on the externalization of belief as manifested in visible acts. In both instances, therefore, the judicial authorities were concerned at “protecting public order.” What is at stake here is that a classical Islamic concept, even when interpreted in the liberal context of a modern nation-state, still operates under the assumption of externalization of belief in relation to a statist public order that needs to be protected. Without such externalization there would be no perjury, no court decision.

The second aspect of the debate concerns the “What if?” question: What if Egypt’s constitution had been fully secular? Obviously, the whole logic of the ḥisba logic would have been inoperative. The point not to be missed here is that the ḥisba logic would not ascribe itself as a Universal in Egyptian law, as it remains a Particular that the petitioners employed—as a legal procedure of its moment—in order to prosecute Abu Zayd. Agrama’s interpretation of the case would not even offer the possibility that it could be routinized for uses in other circumstances. That is to say, it remains a Particular that works for a particular case, but which, to use a Hegelian jargon, cannot be “sublated” for a higher more abstract Universal. Secularism as a Universal that applies itself under all conditions would have by contrast rendered such particular cases inoperative.

The modernization of Egyptian law, which begins in earnest under Mehmed Ali in the early nineteenth century, implied the introduction of Napoleonic codes in civil, penal, and commercial laws. The Ottomans did something similar with the Tanzimat once the nizami courts became operative; the new courts, following a Napoleonic model, introduced a diversity and identical hierarchy for all courts with the right to appeal to a higher court. The new Tanzimat system, both the Egyptian and Ottoman, instituted a split between modern secular codes and courts, on the one hand, and the sharia based courts of personal status on the other, a split that is still operative in the majority of Arab countries. The wager here is that the sharia courts themselves have become since the nizami courts a member of the court hierarchy, that is to say, having lost their prime role as the only operative courts that would handle anything from contracts and obligations, up to tort and crime, the sharia courts have been relegated to personal status only, operating within a hierarchy of courts. They thus have de facto been liberalized, in congruence with modern civil law. The Egyptians for their part integrated the personal status courts within the civil system in 1954, though the entire legal system takes the sharia as its “source,” as required by the constitution. But even the personal status code and courts, which would apply the sharia in matters of “obligations” (farā ͗iḍ), have implemented a liberalized version of the sharia, one that reasons in terms of secular codes, whereby the various religious groups would keep their own obligations operative in matters of marriage, divorce, and inheritance. That this blurs the lines between the religious and secular is fairly obvious, though this should not prevent us as to why secularism was never adopted as an ideological and juridical stance in the first place.

Besides that Agrama fails to question seriously the possibility of an “openly stated” secularism, one that would have to be explicitly stated in the constitution, he also fails to acknowledge how such “lack” of an explicit secularism is probably linked to a military–one–party “corporatist” dominance without hegemony, as Ranajit Guha would say. For example, on p. 221, a claim is made that “Egypt is often described as a repressive, authoritarian state, and many studies of it proceeded on that premise. Its extended space 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… 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 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.” First of all, let’s note here that “the state of exception,” following Carl Schmitt, is the very condition of the existence of law, hence of the state as such. That is to say, state-law only validates itself through itself as the exception to all norms pervading in society (Derrida’s force du droit). Second of all, beyond the fact that “the state of exception” is validated differently from one society to another and under different historical junctures, there is a big difference between liberal laissez-faire societies and authoritarian states like Egypt. For one thing, authoritarian states reason in terms of the Party that defeats the adversary, the enemy-figure, maintains the route to socialism, thus providing with a Grand Narrative that the liberal state clearly fails to provide. In the latter, abusive situations, such as torture, are secretly managed for narrow purposes, which remain “loose” on their own, outside a grand narrative.

In its stead, Agrama pursues “Egyptian secularism” as if it is already there, that is, explicitly stated in some constitutional text: “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?” (p. 2)

Can we pose such questions in the context of societies which are Islamic but with no historical tradition of secularism? One can here allude directly to a decision of the Turkish Constitutional Court (CC) in January 1998, amid a decision to outlaw “Islamist” parties, regarding “the different nature of secularism in Turkey on the basis of the unique characteristics of Islam and the sociohistorical context of Turkey” (Yavuz 247). Indeed, the court confines religion in opposition to secularism and argues that “religion regulates the inner aspect of the individual whereas secularism regulates the outer aspect of the individual.” Thus, Turkish secularism can be seen as different from democratic forms of secularism in terms of its “Jacobin,” “militant and militarized,” and “antireligious” features that impose a top-down Western lifestyle. Secularism in the Turkish context is a state ideology and an instrument of othering and criminalizing opposition. (ibid.)

Hence the special nature of Turkish society, which historically was an Empire-driven Islam, where qānūn-mindedness (not the sharia per se) was the political norm (Marshall Hodgson, The Venture of Islam, v. 3), implied, upon the formation of the Turkish Republic in 1923–27, an explicit policy of adopting “secularism,” understood as a top-down “Jacobin” approach to society, whereby the state would take a militant and militarized, if not antireligious, attitude, openly declaring “Islam” as “unfit” as religion of the state; even “unfit,” in some respects, as religion “of the people.” The point here is that the newly born republican state took an aggressive stance, much more than French laicism on the eve of the First World War, to “fashion” a secular state and society. That is to say: considering that secularism did not historically grow as discourse and practice within the Empire, it was an outcome of the new policies of the nation-state. The latter, however, is not, at least for colonial societies, a “prime representation,” but a representation of a representation; a representation that emanates from the prime representation that the west made of the nation-state for itself. The beginning is therefore the nation-state itself, which prompted a policy of secularism as a concept, and secularization as a practice. Which is precisely the problem: the nation-state in this instance is a western representation, which historically evolved out of the European history of the Renaissance and Enlightenment. The “secular” was already a doctrine of the middle ages whose purpose was to separate the profane from the religious. Secularism comes through as a nineteenth-century representation of the secular within the context of the nation-state. The nation-state primarily implies an “imagined community” whose roots emanate from a print-capitalism of the vernacular; which implies centuries of “coming together” for religious beliefs, regional differences, groups and ethnicities; it implies a “society of the individuals” who come together not simply endowed with political and civil rights, but of common forms of life (Wittgenstein). When a newly founded society like “Turkey” adopts secularism in conjunction with the nation-state, one must remember here that it is always the nation-state that comes first as a historical necessity, because Empire as a form of polity is obsolete; secularism is a byproduct of the nation-state, a second necessity out of the first. But, in the Turkish case, the nation-state did not mature out of the history of Empire; it was rather a bastard byproduct (opération césarienne) which was imposed by colonialism and whose concepts were borrowed from Europe. Consequently, the parts that make this nation-state are only parts; they’re a non-All, whose Oneness and Wholeness remains imaginary. In Europe, critical literature deconstructs the nation-state as a non-All which fails meeting its ideal of democracy, fairness, and cohesiveness. Such non-All deconstructionism, however, always assumes the overbearing existence of the nation-state as historical reality whose evolution was witnessed in Europe itself. Deconstructionism therefore primarily aims at a deepening of democracy, which always hides exclusionist policies of the non-All: to accept l’étranger, l’intrus, in me, not as alien foreigner, but as an other.

What happens in states like Egypt where there is no open declaration for secularism? The book tackles the “blurs” in Egyptian law and society between the religious and the secular. In the end, it keeps telling us that things are so blurred that Egypt cannot be described as a religious state, in spite of the constitution naming the sharia as the main source of law. For example, the sources of Egyptian civil law are French, hence “many fundamental provisions of the sharia are patently ignored and unimplemented” (2). The lesson here is that many things exist formally on paper, which in principle would prescribe religious law, but in practice have no value. But then, if that’s the case, then why doesn’t Egypt officially declare secularism? And would that make any difference? Was the Turkish declaration of secularism only in relation to an open-minded élite, or was it fostered through a particular combination of class hegemony? In any case, the non-declaration of secularism is in itself revealing, even if de facto most of Egyptian civil, commercial, penal laws are indeed secular, unaffected by the precepts of the sharia and fiqh. Moreover, the fact that personal status law regulates kinship, marriage, divorce, alimony, and inheritance, means that it controls significant chunks of social relations, even for non-Muslims. Finally, the absence of official secularism means that “minorities” are treated as minorities, as dhimmis, rather than as citizens under a universal civil law. To wit, the status of dhimmis, in particular the Copts, is not limited to personal status, as it affects their religious and political rights. In this regard, even Turkish secularism is “incomplete,” as it forbids “minorities” to form political parties, build religious sites, places of worship and cemeteries. In sum, whether secularism is officially declared as policy or not, there are always “hidden” and overt attitudes towards the religious that regulate that dividing line between the declared and undeclared. The question then becomes not so much whether Egypt is religious or secular (Agrama 3), but the declared versus the undeclared: each enunciation opens up for the graded areas of language.

Considering that every religious phenomenon, be it legal, ritualistic, political, is inscribed into the modernity of civil law, capitalism, the nation-state, the mass-media, and receives its raison d’être from such institutions, it is then fairly obvious that borderlines between the religious and the secular are fairly blurred. What then is the point of asking what is religious and what is secular? What we can do, as historians, sociologists, and anthropologists is document how such transformations take place; how in the inscription of traditional non-modern non-western phenomena in modern lifeworlds specific to them, they receive new meanings. The meanings could be varied: the personal in relation to the collective (community, society, state, mass-media); the inscription into modernity; the structure of labor and capital in society.

Agrama distinguishes between a modern state and a modernizing state (p. 5). The distinction stems from the difficulty of categorizing Egypt in terms of oppositions: modern versus non-modern, religious versus secular. Still, there is a problem: “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.”

Do we need, however, to make such rigid distinction? Doesn’t such line of questioning fall in the same trap that it pretends to avoid? The book is full of events and practices of the religious being inscribed in the modern meanings of civil law, the nation-state, capitalism, and the mass-media. (The book addresses in particular two sets of records: the al-Azhar Mosque Fatwa Council, and the personal status court records.) If the secular is the universal, then particulars receive their particular meanings from the lifeworlds they are inscribed into from the universal. (In the same way that universal capitalist labor, based on profit and capital accumulation, inscribes itself in Egyptian labor based on small family enterprise, and corrupt crony capitalism. The point here is not to declare that the case of Egyptian labor would not fit with the universal, because it is “incomplete” capitalist labor, etc. Universal labor itself, as analyzed by Marx, only makes sense as universal in the particular concrete situations of lifeworlds labors, which vary in time and space. In sum, when it comes to universal entities like the state, the secular, law, labor and capital, which receive their universal meanings from European history, they produce concrete meanings out of the concrete situations they are inscribed into.)

Consider, for example, the institution of the fatwa to which the author devotes a chapter (“What is a Fatwa?”). The fatwa is surprisingly conceptualized under the Foucauldian notion of “the care of the self” as souci de soi, which Foucault in his late years, within his multi-volume Histoire de la sexualité, had worked out for the Greeks and Romans: “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.” (Agrama 180) Besides the fact that this is a farfetched “care of the self,” the fatwa, even if mufti and questioner are into uncertainties, remains a submission to an external judicial authority; in many respects, it is not that dissimilar to a judge’s authority (which may rely on that of the mufti) in that the applicant to a fatwa or legal case only obeys. Muftis, judges, administrative and upper courts, do not even have to demonstrate their line of reasoning. That is to say: their enunciations are meant to be performative, to be obeyed and followed. To elaborate, there is no mode of subjectivation per se for the simple reason that the questioner is there only to follow, not to argue. Moreover, the questioner is invariably restrained by the legal language and its procedures.

“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.” (Agrama 184) They are, indeed, different, but it is also a question of whether such differences matter to the point that the fatwa could be associated with the notion of “the care of the self.” A social actor may endlessly debate things with a mufti or judge, but in the final analysis, in both instances, she is submitting herself to a judicial authority. The care of the self assumes processes of subjectivization which legal systems cannot accommodate.

One of the virtues of postmodernity, assuming there is one, is that there is not only one modernity; even European modernity has become one among several, or has been “provincialized,” though it assumes the role of a privileged universal modernity, out of which the other modernities and postmodernities have erupted. Which means that every modernity, be it Egyptian, Indian, Chinese, is relative to the culture that produced it. Each modernity borrows from and adapts from others. Besides that each culture and civilization proceeds with its modernity operating with restrictions from its own past, present, and future. The wager for Islam is not simply its politicization, as the modernization of Islam touches on every aspect of the lifeworld. For example, when it comes to the family, sexuality, privacy, and personal status, it is difficult to picture an American court ordering a university professor to divorce his wife on the accusation of blasphemy. And the wager here is not to be limited to religion and secularism, as it touches on all kinds of sensibilities related to the “social.” So when an Egyptian court, based on an archaic reinterpreted (if not over-interpreted) notion of ḥisba, commands Abu Zayd to divorce his wife, this in itself is a form of “modernity” related specifically to Egypt; other courts in the Islamic world may, indeed, “borrow” from the Egyptian interpretation, or take the Abu Zayd case as precedent; but even in such instances, we are not “outside” the modernities of the modern.

But then within this postmodernist relativism western civilization has its special status: it is the civilization, which since the Greeks, Romans, and Christians, has provided the roots of modernity for the world at large. When Agrama states that issues of family, marriage, divorce, sexuality, personal status, are problematic in Egypt as they are in western societies (Agrama 184–5), he forgets to mention that in the secular west such problematizations become normative for the word at large, that is, they become the universal, “sublating” the particulars of other civilizations. The error would be to portray Egypt in a situation of “catch up” with the west and the rest, as it is difficult to argue in terms of a “stageable” historicism, an evolutionist history across societies and civilizations where certain prerequisites must be met, prior to more mature ones eventually showing up.

Zouhair Ghazzal

Professor of historical and social sciences

Loyola University, Chicago

zghazza@luc.edu

the economics of sharia law

Kuran, Timur, The Long Divergence. How Islamic Law Held Back the Middle East, Princeton: Princeton University Press, 2011. ISBN 978–0–691–14756–7. U.S. $29.95.

Even though Timur Kuran is overall convincing at laying out arguments on the backwardness of Islamic practices regarding partnerships, corporations, banks, loans with interest, waqfs (mortmain properties blocked from circulation), and contracts in general, he seems less convincing at explicating why Islamic societies were held back from competition with Europe from the middle ages up to modern times. Indeed, his main assumption that it was Islamic law that held back the economy escapes the problem rather than points at its cause in a convincing way. Legal systems in general are more an outcome of social conditions, rather than the major force that would bring social relations to a more developed level. In other words, history shows that whenever the law is “behind” social practices, whether cultural or economic, they tend to be addressed sooner rather than later. A case in point, which Kuran explains at length, is the ban on loans with interest that both Jews and Christians had to abide by in the early European middle ages, which in both instances were bypassed due to the socio-economic conditions in Europe at the time. Even in modern times, legal systems tend to struggle in order to match cultural and economic developments. Witness how the American common law had to battle, since the nineteenth century, its formative period, with issues like private property, contracts, the corporation, slavery, rights of minorities and women, abortion, and gay and lesbian rights, in order to become congruent with the nascent capitalism and the mores of the times. It therefore seems quite obvious that for any society and civilization, at every historical juncture, it is the totality of social relations, or the mode of production, which in the last stance is what impacts politics and law. There are times when the law falls behind the evolution of social relations, which could be attributed to anything from the weakness of the state, or to the nature of legal reasoning itself, for instance, a need for complete overhaul that is constantly delayed, due to lack of adequate resources or for political reasons. However, Kuran addresses Islamic law for over a millennium, and for that long a period it would be absurd, as he does, to blame economic backwardness solely on the law, as suggested in the book’s subtitle and its various chapters. It goes without saying, however, that there is a “divergence”—and a wide one for that matter—between Islamic economies and their western counterparts; the Mediterranean economies of the last millennium, between east and west, point to such a divergence. Even though Islamic law shares the blame, it is more of a symptom of a much broader and deeper problem, than the major culprit.

Kuran’s demonstration often questions the reasons that did not push “communities” and subcommunities from tailoring Islamic law to their own needs and aspirations. In other words, if Islamic law proves to be, indeed, the main culprit, or the prima causa, in the history of economic backwardness of middle eastern societies, why hasn’t there been any resistance to its rule? Or why, in the vast Islamic empires since the Umayyads and Abbasids up to the Ottomans, no major challenges were posed to the legal limitations on partnership, inheritance, loans with interest, and waqfs? Why is it that no corporations, loan institutions, public debt and banking services have emerged even in rebellious peripheries? Or why is it, as far as economic and legal practices are concerned, no significant changes are to be noted between the Shi‘i and Sunni sects? Why is it that no group, subgroup, community or subcommunity broke the general rules in order to establish more aggressive economic and legal practices?

Kuran’s reasoning assumes that, first, Islamic law reached such a level of maturity and comprehensiveness so as to rule out any possible defections on the part of groups and communities, whether urban or regional: “On the face of it, the presumed comprehensiveness of Islamic law ruled out self-governance on the part of subcommunities; one could not replace divine law with human-made law even in limited domains.” (107) Such passages do suggest that, first, Islamic law reached such a level of comprehensiveness and a systematic character by the early middle ages to the point that it would undermine other sub-laws from emerging, which would have been secular and more competitive. In other words, the divine character of Islamic law gave it such an aura that no community would have even dared to challenge it. But what if the reverse proves to be the truth, namely, that three to four centuries since its inception, Islamic law failed to develop a systematic character, and that at no point there was even an attempt to develop a system of codes à la Justinian? What in effect persevered since the 10th–11th centuries was a de facto process of “accommodation” of the broad principles of the law, which were never comprehensive in the first place, to the needs and aspirations of the local regional communities; and even at this level, it was custom that reigned supreme, rather than sharia law. Such a failure to create a corpus of Islamic law that would have served as a comprehensive code for the various regions and communities of “the lands of Islam” has been accommodated for in various forms from one epoch to another. In Ottoman times, for example, a clear division was instated between sharia law, on one hand, and the regional bureaucratic “secular” laws, commonly known as the qanunname, on the other, which in itself was a bland admission of the inoperative character of Islamic law in such matters as rent, taxation, and crime. Moreover, even for the core of sharia law, the Ottomans adopted Hanafism out of the four Sunni schools, a flexible school that accepts “custom” as regionally operative, while assuming the status of “law” (“habit is tenacious,” states one of the “general rules” of Hanafism). What the Ottoman centuries therefore point to is precisely the level of “autonomy” that subcommunities have assumed on their own, a self-rule that was made possible not so much by sharia law itself, but rather thanks to the very nature of the societies on the eastern Mediterranean and north Africa.

The main problem in Kuran’s book is not only his desire to see in Islamic law the prima causa of economic backwardness, but more importantly, in an inability to properly describe the sociological and historical nature of the societies and civilizations which were operating under Islamic law. Which gives Kuran’s study the impression that things could have been otherwise were it not for Islamic law. But what if things could not have been that much otherwise, precisely because the societies that were subject for centuries to sharia law operated under their own ecological, tribal, urban and social limitations? Indeed, a major weakness of the book is that it does not delve deeply enough into the political and economic organizations of such societies: Would a system more open than sharia law made them any different? Assuming that in the past millennium the bulk of Islamic societies were under prebendal and patrimonial absolutist dynasties, where prebends in the form of land grants were donated as signs of loyalty to urban élite groups, were the social conditions ripe enough to create a milieu that would have hosted more competitive economic practices from the ones already in place? Is it really a problem with sharia law itself, and the fact that it imposed all kinds of restrictive uncompetitive norms, or was it a limitation coming from social structure? Historians working within a sociological comparatist perspective (such as Barrington Moore and Reinhard Bendix) have often noted that “feudalism” in its European connotations was a privilege that failed to materialize in the middle east and Asia (except perhaps in Tokugawa Japan), and that such a failure was what led to the general backwardness in the past millennium. The point here is that when speaking of economic performance over long periods, one cannot escape the totality of social structure—the “law” being one of the components of society rather than its determining agent. Had the economic practices covered by Kuran been indexed to social structure instead of being reduced to their legal underpinnings, economic backwardness would have eo ipso looked messier, with no prime cause in sight.

Even though a big advantage of Kuran’s approach is his excellent description of economic practices over a millennium with their legal underpinnings, his ascription to “law” the prima causa of all economic backwardness does a disservice to his enterprise. As already pointed out, in various passages Kuran seems uncertain as to how much the “holding back” was an outcome of the “law” itself: was sharia law, as divine law, so powerful that no community could be set free from its creed? And why with all the “autonomy” that communities enjoyed in most Islamic empires, no alternative economic systems came to light? As in the passage above (107), Kuran seems to suggest that the “divine” aspect of the law made it irreproachable. Such arguments, however, do not feed well for a complex undertaking on economic development, and end up too circular, if not solipsistic: Islamic societies have created a divine legal system, to which they’re imprisoned, precisely because of the divine character of the law. For example, notice how Kuran is at loss when he questions the reasons behind the failure of anything close to a “corporation” or a “corporatist structure” in Islam. Having first noted that “free incorporation” would have implied “the right to incorporate at will, without the consent of a monarch, president, or parliament” (121)—which makes “corporation” even stronger than “partnership” (which in Islam was limited to the basics)—Kuran then notes that, under such conditions of “free incorporation,” “of necessity subgroups of the community would enjoy a measure of self-governance” (122), which in turn, would pose a challenge to the ideal of communal unity, and which in the case of Islam would have implied a challenge to the divine character of sharia law. As in other passages, and whenever we’re faced with a crucial “shortcoming,” in this instance the “corporate structure” (even the Roman Church behaved as a corporation), it was the “law” that halted the process: “In adhering to the ideal of a unified community and withholding legal rights from subcommunities, jurists and political theorists doubtless thought to deny social divisions legitimacy.” (122–23) So, if the “corporation” or “the fictitious person,” which as legal notions stand as prerequisites to one another, have not been embraced in Islam, it is because as radical innovations, they would have undoubtedly posed a threat to “the ideal of undifferentiation,” namely the Islamic community of believers known as the umma. The problem with such views is that they give the false impression that it was Islamic law that prohibited communities, which for the most part were based on strong kinship and tribal ties, from embracing the corporation (and other prerequisites, such as the fictitious person and competitive partnerships), hence in moving in the direction of openly liberal markets. But were such handicaps and constraints imposed by the monolithic nature of Islamic law, as Kuran seems to suggest, or by the social structure of Islamic societies, which in turn are an outcome of the ecologies and terrains in which they have evolved?

Zouhair Ghazzal

Loyola University Chicago

zghazza@luc.edu