Thoughts on Egypt III: Democracy and Human Rights

Al-Siyāsa al-Shar‘iyya

Since every Muslim body politic had to grapple with the rule of law and establishing their own legitimacy, the subject of al-siyāsa al-shar‘iyya evolved over time to emerge as the body of writing and theory that governed the crossroads of politics and Islamic law. As Frank Vogel says, siyāsa can be thought of as legal conceptions and institutions viewed from the perspective of the ruler.1Frank E.Vogel,Islamic Law and Legal System(Brill: Leiden, 2000), 171. It generally included rules governing the discretionary right of the ruler to enact laws when there was no clear text in the primary sources and no precedent in Islamic law. In exchange for this type of power, the ‘ulamā’ were the providers of legitimacy to rulers, ensuring that they were essential and thus allowing them to be the sole “protectors of the Islamic constitution.”2Ibid., 195. This “circle of justice” as Wael Hallaq calls it, is its own topic with its own vast literature and genealogy.3“The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Hallaq,Sharī‘a, 208-216. What are the conditions for a legitimate ruler, who is allowed to pick the ruler (i.e. theahlal-ḥall wa’l ‘aqd), what are the boundaries of what he can or can not do, how can one remove a ruler if needed, etc., all are questions that form the backbone of this genre of writing.

            The role that the ‘ulamā’ played in keeping the political and social structure of Muslim societies led to a consolidation of the political structure and a strong integration of siyāsa by time of the Ottomans.4Ibid., 205.The Ottomans provided a vast government bureaucracy where the ‘ulamā’ played a vital role allowing siyāsa to take on a more formal role in Muslim politics. There were official state ‘ulamā’ (muftis, qāḍīs, and the position of Shaykh al-Islām) which provided a more structured role for the ‘ulamā’ in matters of state. Over time, the imperial laws and decrees that were issued were, in a sense, written and codified. They became known asqānūns and provided a vast new body of legal literature that would impact the desire to codify Islamic law in the 19thcentury.

Removal of Morsi

Unlike modern democracies where people elect officials to represent them, either directly or through proxies such as electoral colleges, the head of an Islamic State5By Islamic State I mean a legally constituted state according to international laws and compatible with siyāsa literature. I mean in no way whatsoever the heresy known as ISIS, etc. (siyāsa works call this position imām or khalīfa) is selected by a group of people known as ahl al-ḥall wa’l ‘aqd, literally the people who loosen and bind. While Islamic jurists and political theorists have discussed the important role that this group plays in statecraft, there has never been a consensus on exactly who is a member.6Muhammad Qasim Zaman has an excellent treatment of this debate outlining the three possible interpretations of this group. See: Muhammad Qasim Zaman,Modern Islamic Thought in a Radical Age(Cambridge: Cambridge University Press, 2012), 47-55. What is clear in discussions of this group, however, is that themujtahidsamongst the ‘ulamā’ were a part of it: either entirely or partially.
            In June of 2012, by a narrow margin of 800,000 votes, the Egyptian people elected Mohamed Morsi.[7]  While there is no direct language regarding voting and elections in siyāsa writing, there is discussion of the nature of the relationship between the ruler and the ruled. The relationship is seen as a trust (amāna), which can be likened to a social contract of sorts between the ruler and the ruled. Al-Māwardī (d. 450/1058) writes about this saying “the contract of the imāma does not involve forcefulness or coercion.”7Imām al-Māwardī,al-Aḥkaam al-Ṣulṭāniyya(Caorp: Maṭba‘a al-Ḥalabī, 1973), 7. In fact, as some of the salaf argued, the entire axis of siyāsa writing is based on the verse in 4:58 in which God states, “Lo! God commands you to restore deposits to their owners, and, if you judge between mankind, that you judge justly. Lo! comely is this which God admonishes you. Lo! God is ever Hearer, Seer.” To assume the position of the chief executive of a nation and commander of the armed forces, the modern position that fulfills the Sharī‘a concept of the imām, is to take on the ultimate social trust. If this trust is violated, then the imām has opened the possibility of their removal/deposition. The election of Morsi, even if narrow, was an acknowledgement of the willingness of the people (the direct electors in this case) as well as the approval of those who loosen and bind (the leaders of Egypt’s religious and military institutions) of his presidency.
            Unlike the democratic electoral process, the masses do not have the right to depose a ruler and this right falls with those who loosen and bind precisely because the people who loosen and bind have the physical strength (Ar. shawka) to depose the ruler if the contract between the ruler and the ruled is breached in a way that can not be repaired. Al-Taftazānī (d.792/1390) says, quoting Imām al-Juwaynī (d. 478/1085), that this removal can even be by force if needs be for the betterment of the nation.8S‘ad al-Dīn al-Taftazānī,Sharḥ al-Maqāṣid, 5 vols., (Cairo: al-Maktaba al-Azhariyya lil Turāth, 2013), 5:233-234.
           In the case of Morsi and Egypt, the readings of the events prior to arrest of Morsi are as follows: there was a series of power grabs by Morsi and constitutional decrees giving the office of the presidency unparalleled power and obfuscating the barriers between the legislative and executive branches of government, there was a complete breakdown of Egyptian civil society, historic mass protests-to the point were the entire country was at a standstill, and a unanimous agreement amongst Egypt’s major institutions: Muslim, Christian, military, police, and the Republican Guard that the president had to step down and new elections had to be called. Some argue that since Morsi was democratically elected this is somehow superior to any other consideration that would lead him to be removed. In fact Morsi and the Muslim Brotherhood in Egypt still refer to Morsi as the legitimate president of Egypt. The fact of the matter is that, according to siyāsa literature briefly discussed above and the Sharī‘a at large, the position of imām is predicated on the trust between them and the people they rule/govern. If this is violated, it is then up to those who loosen and bind to decide next steps, including, if needed, forced removal from power. Their rule, then, is not absolute.
            In the case of Morsi and Egypt, therefore, the understanding of the likes of Ali Gomaa, the Grand Mufti Shawqī ‘Allām, Shaykh al-Azhar Aḥmad al-Ṭayyib, and even Pope Tawadros II etc., is that Morsi was legitimately removed from office: both for reneging on his duties as sovereign which lead to a national quagmire and because those who have the authority (i.e. the physical ability) to make such a decision unanimously acted accordingly.[10]
           One can certainly disagree with this, which I assume many will, but the siyāsa literature is quite clear on this topic as well as precedent of this being acted out throughout Islamic history. The ‘ulamā’ who supported Morsi’s removal have been extremely honest and transparent in their adherence of the Sharī‘a in this regard. Often times, and especially in the case of Ramadan al-Buti, they have taken these positions at great personal risk and sacrifice. The notion that these ‘ulamā’ are “sell-outs”, “puppets”, “crazy”, because of their positions is a fundamental gross-misunderstanding of the perspective of the Sharī‘a towards statecraft and the role of the ‘ulamā’ towards the people and the government

           There is one final point on this topic I would like to add. Somehave commented that there is a contradiction specifically with Ali Gomaa’s position towards the original January 2011 uprising and that of June 30ththat removed Morsi from power. Some argue that in 2011 he took a stance against the uprising and then was in support of June 30th. The common thread between these two positions is the concept of where sharī‘a legitimacy lies, or what is termedshar‘iyya. The government of Hosni Mubarak had shar‘iyya that was not breached, even if people took the streets. He may have been a bad person, a bad Muslim (God knows best), but his duties as a sovereign at the highest levels were carried out and intact, and, until the moment of his resignation, those with the ability to depose him chose not to remove him. After he stepped down and after the new elections, all members of the people who loosen and bind accepted Morsi as Egypt’s new president. However, and as mentioned above, Morsi failed in his responsibilities to the point that those who had the ability to remove him did. Again, I am sure many will find disagreement with this, however from the perspective outlined here, there is no contradiction.

Rab‘a

Nothing in the writings of siyāsa, or writings of enjoining right and forbidding evil, speak against standing up to State injustice. This is a supported right, and has its own conditions.9For example see: Ibn Naḥass,Tanbih al-Ghāfilīn ‘an A‘amāl al-Jāhilīn(Beirut: Dār al-Kutub al’Ilmiyya, 2001), 59-77.  Dr. Gomaa argued, as quoted in the first post on the timeline, that protests are legitimate up to the point that they do not cause disturbance, destruction, and harm. Disagreeing with the government, in itself, is not a sin. In fact, one can argue, it could be considered a great moral act.10The Prophet (God bless him and give him peace) said, “the best form of jihhād is a truthful statement in front of a corrupt ruler.” Musnad Aḥmad hadith 19130. Dār al-Minhāj publication. The issue with the Rab‘a protests is that they lasted a long time (two months) and caused much disruption, and therefore the Sharī‘a perspective of them changed with these changing conditions. Even the non-protesting residents of Rab‘a petitioned the courts to breakup the protest.[13] 11All According to Plan: The Rab’a Massacre and Mass Killings of Protesters in Egypt (United States of America: Human Rights Watch, 2014), 99-102 These court injunctions meant that the protest moved from the legal to the illegal, i.e. they lost their shar‘iyya. This means, from a siysāsa perspective, the Rab‘a sit-in became an illegal gathering that caused destruction of property (this has been documented and I witnessed this myself as I live in Nasr City and was there at the time) and public disturbance and therefore had to be dispersed. “Going against the ruler” (­al-khurūj ‘an al-ḥākim) in a way that causes harm to others (whether in their person or their property or their security) is considered a major sin and a violation of the trust that is owed from the governed to the one governing. This is why, for example, Ibn Nḥhās (d. 814/1411) argues that if “harm” is found against society and especially the ruler, this can be removed by force.12Ibn Naḥhās,Tanbīh al-Ghāfilīn, 59-60.
            When security forces came to disperse the protests, the critical part of the narrative is who fired first. The Human Rights Watch report itself, a document quoted by many on this topic and used as evidence against State violence, was not able to determine what happened first. Yet, this remains one of the most important aspects of the entire Rab‘a narrative and upon which is based much of the legal thinking of what transpired subsequently!13All According to Plan, 77. The narrative that people like Gomaa hold to and defend is that the police came with the intention of dispersing the protests without the use of legal force, and the protestors were given forewarning of their eminent dispersal, particularly because several court injunctions for the breakup of the protests were issued in the weeks prior to the actual dispersal. When the police came to actually begin the process, they warned over loudspeakers the dispersal, but instead of compliance, they were fired upon first and there was instant loss of life from the police. It was at this time that lethal force was used against the protestors. There is no debate as to the presence of weapons amongst the protestors, illegal seizure by the protestors, and even torture of innocents by some of the protestors.14bid., 95. The Muslim Brotherhood even clothed young children in shrouds written upon them “for sacrifice.” The debate is whether these facts and numbers justify the use of force or not. The HRW report argues that it does not, but without even acknowledging the aforementioned or providing a narrative of who fired first.15For example see: Ibid., 97, 104. Gomaa and others argue that it does, again a consistency with siyāsa literature.
            The problem with this position for most people is that many, many innocent people lost their lives in Rab‘a. There is no denying this. The sad fact, however, is that these innocent people, whether knowingly or unknowingly, joined the ranks of a highly problematic, illegal, and dangerous gathering. This type of situation is addressed in the intellectual history of Muslims and particularly in siyāsa writings as “those who swell the ranks of others” (takthīr al-sawād). In regards to verse 4:97, for example, the Prophet (God bless him and give him peace) said that the reason it was revealed is that some of the Muslims swelled the ranks of the disbelievers against the Muslims and in the ensuing armed conflict they were killed. To this event Ibn ‘Abbās (Allah be pleased with him) said, “people from the community (i.e. Muslims) were with the disbelievers and swelled their ranks (emphasis mine) against the Prophet (Allah bless him and give him peace). An arrow was fired and perhaps hit one of them (i.e. by mistake) and they perished. It was to this that God revealed 4:97.”16Ṣaḥīḥ Bukhārī, Kitāb al-Fitan, ḥadīth 7174, Thesaurus Islamicus Foundation. On this same topic, al-Nawwawī (d.676/1277) comments by saying, “whoever swells the rank of a people take the ruling of that people in the dispensation of worldly punishments towards them.”17Sharf al-Dīn al-Nawwawī,al-Minhāj Sharḥ Ṣaḥīḥ Muslim Ibn al-Ḥajjāj, 18 vols., (Beirut: Dār al-M‘arifa, 2006), 18:216. In this case, unfortunately, these protestors, even if innocent, could place themselves in mortal danger. As difficult as this position is to accept, particularly by those with a western-liberal sensibility, siyāsa writings and the overall Sunni political framework is highly sensitive to going against the State in a violent fashion.
     Another important point is the use of excessive lethal force against unarmed protestors. While this is a separate issue from the legitimacy/illegitimacy of breaking up the protest, it nonetheless is very important. Just because the state had a right to disperse, and subsequently had a right to use forceequal to the force against them, there is no doubt that there was an excessive use of force, much of which has been documented in reports and video clips. In this case, it is incumbent upon the state to prosecute those individuals who are proven to have used such force against unarmed civilians. The state, I believe, has a fundamental responsibility not to use force against its own citizens when it can be avoided.
           In the end, there is no doubt that the break up of Rab‘a was a catastrophic event and that hundreds of innocent people lost their lives. Even the ‘ulamā’ who uphold its legitimacy agree to this notion. The use of force was excessive and sloppy, and the State could have done a lot better. In fact one could argue that the State had a fundamental role to avoid a violent outcome in the first place. However, as tragic it was, the real issue at hand is whether or not there was arightof the State, based on the facts admitted, to use lethal force. While people like Gomaa have been consistent in their own arguments, and consistent in their adhering to the body of literature they hold as authoritative, the argument that the Raba‘a breakup was bad and sad are simply not cogent and have no relevance to the legal discussion of Sharī‘a permissibility or not.

 

References   [ + ]

1. Frank E.Vogel,Islamic Law and Legal System(Brill: Leiden, 2000), 171.
2. Ibid., 195.
3. “The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Hallaq,Sharī‘a, 208-216.
4. Ibid., 205.
5. By Islamic State I mean a legally constituted state according to international laws and compatible with siyāsa literature. I mean in no way whatsoever the heresy known as ISIS, etc.
6. Muhammad Qasim Zaman has an excellent treatment of this debate outlining the three possible interpretations of this group. See: Muhammad Qasim Zaman,Modern Islamic Thought in a Radical Age(Cambridge: Cambridge University Press, 2012), 47-55.
7. Imām al-Māwardī,al-Aḥkaam al-Ṣulṭāniyya(Caorp: Maṭba‘a al-Ḥalabī, 1973), 7.
8. S‘ad al-Dīn al-Taftazānī,Sharḥ al-Maqāṣid, 5 vols., (Cairo: al-Maktaba al-Azhariyya lil Turāth, 2013), 5:233-234.
9. For example see: Ibn Naḥass,Tanbih al-Ghāfilīn ‘an A‘amāl al-Jāhilīn(Beirut: Dār al-Kutub al’Ilmiyya, 2001), 59-77.
10. The Prophet (God bless him and give him peace) said, “the best form of jihhād is a truthful statement in front of a corrupt ruler.” Musnad Aḥmad hadith 19130. Dār al-Minhāj publication.
11. All According to Plan: The Rab’a Massacre and Mass Killings of Protesters in Egypt (United States of America: Human Rights Watch, 2014), 99-102
12. Ibn Naḥhās,Tanbīh al-Ghāfilīn, 59-60.
13. All According to Plan, 77.
14. bid., 95.
15. For example see: Ibid., 97, 104.
16. Ṣaḥīḥ Bukhārī, Kitāb al-Fitan, ḥadīth 7174, Thesaurus Islamicus Foundation.
17. Sharf al-Dīn al-Nawwawī,al-Minhāj Sharḥ Ṣaḥīḥ Muslim Ibn al-Ḥajjāj, 18 vols., (Beirut: Dār al-M‘arifa, 2006), 18:216.

Thoughts on Egypt II: Guilt by Association

Intro

During my graduate years at Princeton, I was taught that one cannot truly write on a topic unless they have read everything concerning that certain topic. While this makes writing very difficult, I must admit it is perhaps the soundest scholarly advice I received. One of the main problems with the proliferation of social media and other online media outlets is that people have more of a tendency to write on topics as knee-jerk reactions, rather than measured commentary. I have to admit that I have not read everything written about Egypt, Rab‘a, and the removal of Morsi as more and more is written every month. I have, however, read a lot and I have also been a firsthand observer being in Egypt throughout many of its more dramatic political events over the past five years, particularly the breakup of the Rab‘a protest. I have focused a lot of my reading on people’s comments regarding the attitudes of the ‘ulamā’ towards these events. I have found the general commentary to be as follows:
  • Some of the ulamā work with the State and are therefore co-opted by the State and in so doing loose their legitimacy. This is what I call the “guilt by association” argument.
  • Mursi was democratically elected and there was no right to remove him. This is what I call the “democracy” argument.
  • Some of the ‘ulamā’, particularly Ali Gomaa, have openly supported the use of lethal force by the State in certain circumstances and as a result of their public positions many innocent people were killed. This is what I call the “human rights” argument.
There are certainly many smaller points, but these three broad points, in my opinion, have caused some to dismiss the ‘ulamā’ and leave many feeling no hope as to the future of Islamic scholarship. What most of those who write about this topic have not done is tackle some of the more important background issues needed to know in order to understand the positions of these ‘ulamā’ and, more importantly, our attitude towards them:
  • How is legal authority made in general and how does this apply to the Sharī‘a? And by extension who has the right to speak authoritatively on the Sharī‘a perspective on certain issues?
  • What is al-siyāsa al-shar‘iyya and what is its relevance to this discussion?
  • What is our standard of scholarship and normative Sunni Islam?

It is important to address these issues because, in my opinion, the hyper negativity towards some of the ‘ulamā’ in addition to the ensuing doubt amongst Western Muslims that is levied towards Islamic legal authority is a very dangerous conjunction of events and opinions. In this post and what follows I will attempt to address some of these issues that hopefully could segue into a larger discussion and study in the near future.

Guilt by Association

The ‘ulamā’ have always been a part of the state, either directly or indirectly. This is largely a function of the religion itself. Islam is not just a set of personal spiritual guidelines, but also contains a blue print for matters of state and international affairs, what we term al-siyāsa al-shar‘iyya. Without the ‘ulamā’ there would be no authority of the State (see discussion of al-siyāsa al-shar‘iyya in next post), nor would there be authority in the law of the state, which is based on the Sharī‘a (see the discussion of legal authority below). This “circle of justice”, to borrow from Wael Hallaq, has taken many forms from the advent of Islam until our time.1“The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Wael Hallaq,Sharī‘a: Theory, Practice, Transformations(Cambridge: Cambridge University Press, 2009), 208-216. As opposed to Hallaq’s argument of the destruction of the Islamic state in the modern age, however, I argue that it continues to be a delicate negotiation between the scholarly class and the State.2One of his many conclusions in: Wael Hallaq,The Impossible State: Islam, politics, and modernity’s moral predicament(New York: Columbia University Press, 2013. This has caused some to argue that the ‘ulamā’ who serve in official roles are somehow co-opted by the State and therefore serve as their puppets. Not only is this an extremely dangerous idea, for reasons I will highlight below, it is an extension of the takfīrī ideology outlined by Sayyid Qutub (d. 1966) in his Quranic commentary Fi Ẓilāl al-Qur’ān and other writings.3Sayyid Qutb,Fī Ẓilāl al-Qur’ān, 6 vols., (Jeddah: Dār al-‘Ilm li’l Ṭabā‘a wa’l Nashr, 1986). 2:887-905. Qutub argued that essentially there is no more real Islam or real Muslims, only ignorance and shirk, a judgment he also extended to “man-made political systems.”4Ibid., and 1:590.While the link of his ideology to violent and extremist Muslim movements is undeniable, and while many have rebutted Qutub’s heretical arguments, it seems that the effects of this type of thinking is a constant underlying notion when discussing politics in the Muslim world today.5One contemporary discussion of Qutb’s heretical views, and relevant for this discussion is, Usama al-Sayyid al-Azhari,al-Ḥaqq al-Mubīn fi man Talā‘ab bi’l Dīn(Abu Dhabi: Dār al-Faqīh, 2015). See in particular p17-29 for a discussion of Qutb’s tafsīr on verse 5:44. It is almost a forgone conclusion that because there is wide corruption in many Muslim countries this somehow is equated to their un-Islamic nature. However, and as the Prophet (Allah bless him and give him peace) mentioned, a recognized political entity that claims to follow the Sharī‘a necessitates our political allegiance, even if corrupt. 6Imām al-Bukhāri narrates in his collection that the Companion Ḥuydhafa Ibn al-Yaman (God be pleased with him) asked the Prophet (God bless him and give him peace) what to do if the community of Muslims vanishes. The Prophet (God bless him and give him peace) said, “hold to the community of Muslims and their leader (i.e. political leader), and in the narration of Abu al-Aswad, ‘listen and obey (the political leader) even if he strikes you and takes your wealth,’ and in the narration of Khalid Ibn Sabī‘ī, ‘if you find the Caliph hold to him even if he strikes you, and if you find no Caliph, then flee.’” See: Ibn Ḥajjar al-‘Asqalānī,Fatḥ al-Bārī14 vols., (Cairo: Maktabat al-Salafiyya, 1407 AH), 13:40 Political allegiance does not equate to acceptance or approval of all State affairs, nor does it bar one from trying to rectify wrongs and establish a more equitable society. It does mean, however, that the body politic is intact and must be respected as such at the highest level of government.

           One of the ramifications of the takfīrī way of thinking as it relates to the current discussion is that “the ‘ulamā’ of the State” cannot be trusted at all, and anything they say and/or do justifies all the actions of the State. This is because, the logic follows, the State is inherently evil, corrupting, and un-Islamic. It is here were people fall into a type of guilt by association mentality. The truth is that many of the ‘ulamā’ that hold religious positions, such as judges or muftis, or ‘ulamā’ that advice heads of state, or even others that work with governments, play a vital and delicate role on behalf of all Muslims. They not only keep the important link between the Sharī‘a and the State alive, they also continue to provide guidance, in varying degrees, to the application of Islamic law in courts and national codes of law. At the same time it is also a fact that their influence is limited in almost everything else. Therefore, one should not conclude that their involvement with government is: one, an approval of everything that government does in every aspect of its governance, and two, we should not automatically assume that they are co-opted, but rather understand the delicate and vital role they play. In the case that these ‘ulamā’ do make a mistake, however, or an error in judgment, one should likewise approach the matter with forgiveness and understanding. An error of judgment does not negate their role as ‘ulamā’, nor does it negate their important role in the ongoing formation of legal authority.

The Making of Legal Authority

There are essentially two types of laws: official or public law and non-official or private law. Official or public law is defined as those laws that are composed under the direction of a political entity (in our case the modern state) and used in courts to adjudicate cases. This is precisely what a legal code is. Non-official or private law is essentially everything else and defined as law that is carried out through the mechanism of juristic discussion and its various manifestations.7My definition of private law is adapted largely from Charles Donahue and should not be confused with the distinction made by David Snyder of private law and privately made law which is not entirely relevant for our purposes here, but necessary to know. See: Charles Donahue Jr., “Law without the State and During its Formation”, inThe American Journal of Comparative Law56(2008): 541-565; David V. Snyder, “Private Law Making”, inOhio State Law Journal64(2003): 371-449. The legal traditions as found in the writings of Dumont and Pothier, for example, were the realm of private law. They discussed and summarized earlier existing legal works, especially Roman and Canon law, in addition to customs. Therefore, the authority that is presented in the Napoleonic code that emerged in the early 19th century comes not from the fact that it was a code and issued by the state, rather its authority comes from the legal sources the drafters of the code chose and picked form. As Nils Jansen argues, “the abstract authority of a text giving expression to a legal norm consists in the legal profession accepting it as an ultimate source of the law, without requiring further legal reasons to do so.”8Nils Jansen,The Making of Legal Authority(Oxford: Oxford University Press, 2010), 43.And for these sources to become authoritative and to be recognized as authoritative (admittedly an issue that while important falls outside the pale of this post) there must be a vibrant, continuous culture of juristic discussion surrounding these private law texts in which the concept and idea of legal-textual authority is accepted.
It is precisely this continual juristic discussion that adds layers of authority and ratio legis (‘illa) to the body of Islamic law. It is no coincidence, then, that a large part of this juristic discussion, but by no means all of it, takes place through official religious institutions and bodies throughout the Muslim world. To write-off these ‘ulamā’, especially when they make statements or take positions that we either do not understand, or fundamentally disagree with, is to loose site of the fact that they will continue to impact the discursive future of Islam, and not non-‘ulamā’ who endlessly criticize them. Many of the ‘ulamā’ who have been written about and even defamed since the Arab Spring have been and will continue to be fundamental to our understanding of applying and interpreting the Sharī‘a in this century.9In the case of Ramadan al-Buti, his writings continue to be influential in the way we understand the relationship between materialism and Islam, the role of maṣlaḥa in contemporary Islamic law, and the position of normative Sunni Islam towards those who deny its historical plurality. In the case of Ali Gomaa, he too has added to the ongoing juristic discussion. He has provided juristic leadership on a host of critical issues and, in addition to his own more than 40 books, published the entire corpus of Dar al-Iftā’s fatwa collection (forty volumes and counting). Despite the many, many who find both these scholar’s positions towards political events in their respective countries repugnant, the fact remains that their addition to Sunni legal thought is a vital part of how we will continue to understand the Sharī‘a throughout our lifetime and beyond.

References   [ + ]

1. “The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Wael Hallaq,Sharī‘a: Theory, Practice, Transformations(Cambridge: Cambridge University Press, 2009), 208-216.
2. One of his many conclusions in: Wael Hallaq,The Impossible State: Islam, politics, and modernity’s moral predicament(New York: Columbia University Press, 2013
3. Sayyid Qutb,Fī Ẓilāl al-Qur’ān, 6 vols., (Jeddah: Dār al-‘Ilm li’l Ṭabā‘a wa’l Nashr, 1986). 2:887-905.
4. Ibid., and 1:590.
5. One contemporary discussion of Qutb’s heretical views, and relevant for this discussion is, Usama al-Sayyid al-Azhari,al-Ḥaqq al-Mubīn fi man Talā‘ab bi’l Dīn(Abu Dhabi: Dār al-Faqīh, 2015). See in particular p17-29 for a discussion of Qutb’s tafsīr on verse 5:44.
6. Imām al-Bukhāri narrates in his collection that the Companion Ḥuydhafa Ibn al-Yaman (God be pleased with him) asked the Prophet (God bless him and give him peace) what to do if the community of Muslims vanishes. The Prophet (God bless him and give him peace) said, “hold to the community of Muslims and their leader (i.e. political leader), and in the narration of Abu al-Aswad, ‘listen and obey (the political leader) even if he strikes you and takes your wealth,’ and in the narration of Khalid Ibn Sabī‘ī, ‘if you find the Caliph hold to him even if he strikes you, and if you find no Caliph, then flee.’” See: Ibn Ḥajjar al-‘Asqalānī,Fatḥ al-Bārī14 vols., (Cairo: Maktabat al-Salafiyya, 1407 AH), 13:40
7. My definition of private law is adapted largely from Charles Donahue and should not be confused with the distinction made by David Snyder of private law and privately made law which is not entirely relevant for our purposes here, but necessary to know. See: Charles Donahue Jr., “Law without the State and During its Formation”, inThe American Journal of Comparative Law56(2008): 541-565; David V. Snyder, “Private Law Making”, inOhio State Law Journal64(2003): 371-449.
8. Nils Jansen,The Making of Legal Authority(Oxford: Oxford University Press, 2010), 43.
9. In the case of Ramadan al-Buti, his writings continue to be influential in the way we understand the relationship between materialism and Islam, the role of maṣlaḥa in contemporary Islamic law, and the position of normative Sunni Islam towards those who deny its historical plurality. In the case of Ali Gomaa, he too has added to the ongoing juristic discussion. He has provided juristic leadership on a host of critical issues and, in addition to his own more than 40 books, published the entire corpus of Dar al-Iftā’s fatwa collection (forty volumes and counting). Despite the many, many who find both these scholar’s positions towards political events in their respective countries repugnant, the fact remains that their addition to Sunni legal thought is a vital part of how we will continue to understand the Sharī‘a throughout our lifetime and beyond.

Thoughts on Egypt I: the Revolution and Ali Gomaa’s Timeline

Introduction

I have continued to observe the number of articles and public discussions since the Egyptian revolution in 2011. I have been hesitant to comment since my experience is that political/social events unravel so quickly that what we know today is only a portion of what we end up knowing tomorrow. One of my professors commented in the early days of the 2011 revolution that one needs to make sure that what one says publicly is something they are ready to live with in the future. I have also found that this general demeanor of hesitation and the need for verification a quintessential part of traditional Islamic scholarship.

In addition to this general attitude, I have a personal stake in the dramatic political events of Egypt in the numerous ways I am connected to Egypt. One link in particular has caused me to want to write a little about this topic and this is my relationship to my shaykh, Dr. Ali Gomaa, the former Grand Mufti of Egypt. While I am fairly agnostic to public sentiment against him, as someone who has been in the public eye for nearly 20 years I am used to him having detractors, the events involving him and the Egyptian revolution have been quite different. He has, I believe, been treated unfairly and this is largely due to two factors: one, he has been misquoted extensively, and two, no one has sought to verify what he said and when. In the post below I try to provide a timeline with sufficient references to what he said, when he said it, and a little bit of why he said it. This last part is not necessarily the goal of the below text, and something I hope to turn to in a future piece.

2011 Uprising

Dr. Ali Gomaa made several public statements in relation to the massive uprising that began on January 25, 2011 and lead to the stepping down of former Egyptian president Muhammad Hosni Mubarak on February 11, 2011. His general position was one of caution addressing the potential for mass bloodshed and chaos. [1] He was clear that public protest to address grievances is a fundamental human right [2], but cautioned that mass demonstrations that lead to a disruption of day-to-day life could be considered impermissible (haram) from an Islamic legal point of view. 1Ibid.

On Thursday February 3, 2011, Dr. Gomaa went on national TV to answer “hundreds of calls he received that day” with concerns about attending Friday prayer services. [4]  He issued a fatwa allowing people who feared physical harm due to calls of further mass protests to pray at home and not attend Friday prayer services.

Morsi’s Year

In March of 2011, Dr. Gomaa’s 60th birthday and the official retirement age of Egyptian government employees, the SCAF issued him a one year extension to help with the continuity of government. 2Author in discussion with Dr. Gomaa on the eve of the one year extension. In June of the same year Muhammad Mursi was elected Egypt’s new president. [5] On July 20, 2011 Dr. Gomaa held a national press conference to announce the start of the holy month of Ramadan and announced the month in the name of Egypt’s new president.[6] In March 2013, Dr. Gomaa retired from his position of Grand Mufti of Egypt and Dr. Shawqi Allam became Egypt’s new Grand Mufti.

Post June 30, 2013

Millions of Egyptians took to the streets on June 30, 2013 to protest policies and constitutional decrees of President Mursi. As a result, he was placed under arrest by Egypt’s Defense Minister Abdul Fattah al-Sisi who also dissolved the constitution and placed the head of Egypt’s Supreme Court Justice Adly Mansur as the interim president. [7] Dr. Gomaa argued that the arrest of Mursi was legitimate from an Islamic legal perspective since the “people of the state” and those who “loosen and bind” (ahl al-ḥall wa’l ‘aqd), manifested in the Defense Minister, the Republican Guard, Sheikh al-Azhar Dr. Ahmad al-Tayyib, and the Coptic Pope Tawadros II, were the ones who moved against Mursi to prevent further national chaos. [8] Dr. Gomaa also drew comparisons from recent history in which an ruler was removed from power due to national security concerns. [9]  Morsi supporters, largely led by the Muslim Brotherhood, staged sit-ins in various squares around Cairo, most notably the Raba‘a Square in Nasr City.  At the same time, there were major security lapses in the Sinai region that required military and police intervention. Legal action was taken to allow the Ministry of the Interior to break up the Raba‘a protests [10], and this eventually took place on August 14, 2013. There was significant loss of life throughout the Raba‘a breakup from both police forces and protestors. Five days after the Rab‘a breakup, on August 19, 2013, Dr. Gomaa addressed Defense Minister Sisi and other members of the armed forces in a live televised event in which he supported not only the breakup of the protests and military intervention in Sinai, but also argued for the legitimate use of lethal force. [11] He based his position on the fact that the protestors in Raba‘a were armed and that, according to eyewitnesses, it was the protestors that fired on the police first, not the other way around. [12]  Dr. Gomaa argued that the use of force from the side of the protestors and the significant loss of life from police forces at the beginning of the conflict necessitated the use of force to quell armed insurrection, and that these facts alone meant that Raba‘a was no longer a legitimate peaceful protest and the argument for the right to freedom of assembly ceased to have legitimacy. 3Ibid.

Dr. Gomaa’s comments and opinion towards the Muslim Brotherhood extended beyond the Raba‘a episode.  Since August 2013, Dr. Gomaa has likened the Brotherhood to the early khawārij who sought to rise against the Caliph Ali bin Abi Ṭālib in the 7th century. [14] On October 31, 2013, Dr. Gomaa held a national press conference to announce the launch of a fund to help rebuild Christian churches in Egypt that were destroyed by Muslim extremists including members of the Muslim Brotherhood. [15] As a result of this specific incident and generally due to his public attacks on the Muslim Brotherhood, the Freedom and Justice Party engaged the London based law firm ITN to bring charges of crimes against humanity against Dr. Gomaa and other members of the Egyptian state establishment. [16] Dr. Gomaa’s solicitors put ITN on notice that such actions were a PR stunt of the Muslim Brotherhood and a direct response to his efforts to help the Egyptian Christian community.4I personally oversaw this letter being issued from the Coexist Foundation, of which I am president and of which Dr. Gomaa is a trustee. The Coexist Foundation’s UK solicitors, CMS Cameron McKenna LLP, issued a letter on behalf of the foundation on December 20, 2013 placing ITN on notice for potential libel.

References   [ + ]

1. Ibid.
2. Author in discussion with Dr. Gomaa on the eve of the one year extension.
3. Ibid.
4. I personally oversaw this letter being issued from the Coexist Foundation, of which I am president and of which Dr. Gomaa is a trustee. The Coexist Foundation’s UK solicitors, CMS Cameron McKenna LLP, issued a letter on behalf of the foundation on December 20, 2013 placing ITN on notice for potential libel.

Finding a Shaykh

Many people ask how one can find a proper teacher/guide/mentor, what Muslims normally refer to as a shaykh . Questioners ask about finding a shaykh of the outward sciences, Sharī’a, ḥadīth, Qur’an, etc., as well as finding a shaykh of the inward science of Sufism. While there is a great deal of literature about the conditions of a teacher or shaykh, the following points offer advice I have found to be extremely helpful and proven to produce results in the age in which we live.

A Shaykh of Learning

A shaykh of the outward sciences such as Sharī’a, Ḥadīth studies, etc. should have the following general qualities:
  1. A known pedigree of study. This means they must have an unbroken chain (sanad or silsila) to the Prophet (God bless him and give him peace) with a qualified teacher and/or hail from a known seminary of learning that demonstrates their expertise and authority to teach a particular subject matter. For example, they studied at al-Azhar or al-Qarawiyyin, or they studied with a well-known scholar of a particular field who in turn is licensed (ijāza) to teach and pass on that knowledge. One should avoid at all costs well intentioned people who have no formal training, even if what they say is comforting. This does not mean that all people who fit the above category will be equal in their ability to teach, but at least they have a foundation that can be built on.
  2. They adhere to a holistic, normative view of Islam meaning that, in the most basic of terms, they uphold the hadith of Gabriel in which the Prophet (God bless him and give him peace) outlined three major branches of Islamic learning: law (islam), belief (imān), Sufism (iḥsān). This also means a clear acknowledgement that these three branches evolved from the early generation into the various schools of law, thought, and Sufi orders that we have today.
  3. They are able to answer most questions posed to them regarding their subject matter, and are able to research more complicated and lesser known matters.
  4. They are able to say clearly when they do not know an answer to a question and therefore provide a clear line between their grounded knowledge and conjecture.
  5. They have good character and implement the Sunna of the Prophet (God bless him and give him peace) to the best of their ability, regardless of the subject they teach.
  6. They should be effective in their teaching methods so that people can benefit from them. It should be kept in mind, however, that respect from the student to the teacher is always necessary in learning and this point should never be used as an excuse to walk away if  a situation can be remedied by more decorum from the student.

A Shaykh of Sufism

As for Sufism, there is much literature around the conditions of finding a shaykh and Sufi order that works for an individual. What follows is a general overview of these conditions so as to make it easier for a person in the 21st Century:
  1. One needs to find an order that is closest to the Sunna. Some Sufi practices, while valid from a Sharī’a perspective, have developed non-Sunnic practices. We should remember, however, that the Prophetic example is always our aim in everything we do.
  2. The shaykh must have an unbroken chain back to the Prophet of Islam (God bless him and give him peace). There is no Sufism without an unbroken chain and there can be no spiritual advancement without it.
  3. One looks for a path that is easy. Some orders are difficult requiring copious amounts of devotional works, and in the cacophony of today’s dominant culture one needs to find a way of ease in order to advance. Prophet Muhammad (God bless him and give him peace) always chose the easiest option when presented with a choice, given that there was no sin involved (narrated by Abu Dawūd). It should be noted that this is in regards to ease of extra devotional works required of the aspirant. When it comes to obligatory acts and cessation of impermissible acts, this is a universal obligation for all Muslims despite their affiliation to a particular Sufi order.
  4. One needs to find an order that has accessible publications. Immersion is the best way to learn and the spiritual path is no different.
  5. You and the shaykh. One needs to have a certain amount of compatibility with their shaykh. When there is no compatibility, one should not assume that  a particular shaykh is deficient, but rather their own spiritual sustenance is not meant to be from that shaykh. In this instant, one should remain respectful and keep searching.
Until one can find the above it is recommended to send prayers on Prophet Muhammad (God bless him and give him peace) at a minimum of 300 times per day using any phraseology. This prayer takes the role of a spiritual guide until a living shaykh can be found.