Cairo, Egypt
American University in Cairo inaugurated its new Law School yesterday, in conjunction with the History Department, with a fascinating lecture by the Chair of the History Department Dr. Khalid Fahmy on sharia and siyasa in Egypt’s legal history. His research in the Cairo archives is revealing a very different picture of sharia and Islamic law than is commonly espoused by both Orientalists and Islamists. I would definitely recommend looking up some of his work (I will be!), but here are the highlights:
“Siyasa” in the contemporary context translates as “politics,” but in the 1820s-1870s referred instead to a late Ottoman, pre-colonial secular court system that complemented the religious sharia courts. The latter are limited in a number of ways. Sharia courts can only bring a verdict if the next-of-kin demand it, and must drop a case if the next-of-kin do not wish to pursue their right to retribution. In the case that any of the next-of-kin are under the age of majority, the case cannot be dismissed until all relatives have reached the age of majority. Furthermore, convictions can only be handed down if the accused confesses, or if a minimum number of reliable eyewitnesses can be established. In essence, the sharia courts only adjudicate verbal cases between families, not between the individual and his government. In short, sharia curtails the cycle of revenge and retribution that was tearing Arab society apart at the time of the Prophet Mohammad.
In contrast, “siyasa” in the Ottoman sense is that system of courts and rulings that regulates offenses against government. Traditionally, this involved cases of bribery, embezzlement and misuse of power. In the 1820s-1870s in Egypt, however, it also came to oversee and supplement the sharia court system. After a ruling had been made by the Islamic sharia court, it would come to this secular siyasa court or council. This council included muftis who reviewed the sharia court’s rulings and assured that its judges really understood their responsibilities under sharia law. Whether the sharia court had rightfully dismissed the case or ruled in favor of the plaintiff, the siyasa court then had the authority to re-examine the case using, not spoken evidence, but physical evidence, including forensic science. Generally, the siyasa court then issued an additional punishment on top of the sharia court’s punishment, intended “as a warning to others,” i.e. to enforce the power of the state.
All of this is fascinating, but what’s particularly salient is the light it sheds on the current claims about sharia law, both by the Islamists who advocate a return to pure sharia, and by the Orientalists who reject sharia as barbaric and backwards. Strict Salafi Islamists have been calling for decades for a legal system based entirely and solely on sharia, rejecting the extant secular court systems in Muslim countries as unduly influenced by the West and as un-Islamic. Many Orientalists reject the sharia courts as having outlived their usefulness, relegating them to personal status law (marriage, divorce, inheritance), and labeling them an affront to liberal Western ideas of secular justice. Moderates find themselves in an identity crisis, a clash of civilizations, between the Islamist and Orientalist critiquesof a dual religious/secular court system. However, 19th century accounts about the dual sharia and siyasa justice systems give no indication of an identity crisis or a clash of civilizations. In fact, new research is revealing that all Islamic states since the Ummayad Caliphate in the 7th Century have used an additional, complementary legal system to strengthen sharia, not weaken it. In this regard, both Islamists’ and Orientalists’ understanding of sharia law is inaccurate.
A Linguistic Sidenote
As I listened to this lecture, I was reminded of something our professor Wael said in class this week about the origins of the word “sharia [shari3a].” Though we now understand sharia to be a system of Islamic law, in fact it is derived from the same root as shara3a [road]. Before Islam, the word meant “a path leading to water,” i.e. the path to survival in the desert. In Islamic terms, it means the path toward righteousness, towards heaven, towards right relationships with your fellow man and God. It reminded me of a sermon I heard at my UU church in high school about the word “sin,” which derives originally from the Greek word meaning “to stray from the path,” i.e. from the path towards righteousness and heaven. Thus, in Islamic terms, to sin is to stray from sharia, and to accept punishment from a sharia court is to return one’s soul to the path towards righteousness. Wael will be teaching a course in the spring about how pre-Islamic and early Islamic Bedouin culture influenced the Arabic language, shaped the Arab worldview, and can get in the way of non-Bedouins, both Westerners and settled/urban Arabs, seeking to understand the Arabic language.
