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.

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