—Clark B. Lombardi, University of Washington School of Law, and Nathan J. Brown, George Washington University

 

(Posted originally on foreignpolicy.com)

If a student of constitutional texts sat down to read the draft Egyptian constitution from beginning to end, he or she would find much of it familiar — the language, structure, and institutions would seem to bear resemblances to constitutions in many other countries, even if the particular choices made or terms used were products of domestic political debates. He or she might pause at Article 4, promising that al-Ahzar will be consulted in matters of Islamic law. But the observer would likely be totally flummoxed upon arriving at Article 219, defining the principles of the Islamic sharia in technical terms from the Islamic legal tradition not used outside of scholarly circles: there has been nothing quite like this language adopted anywhere else. What does this mysterious clause say? How did it get there? And what impact would it have? These are three important questions, but each is more difficult to answer than the previous one.

What does Article 219 say?

Let us start with the first question: the wording of the clause itself. It does no good to translate each technical term when they make little sense outside of the original Arabic. The entirety of the clause reads: “The principles of the Islamic Sharia include its adilla kulliya, qawa`id usuli and qawa`id fiqhiyya and the sources considered by the Sunni madhhabs.” The italicized words are technical terms rarely used outside of scholarly circles. In order to understand the meaning of Article 219, let us start with the “principles of the Islamic sharia,” which Article 2 of the 1971 constitution (as amended in 1980 and reproduced in the 2012 draft) proclaimed as “the main source of legislation.”

The interpretation of that phrase fell to the country’s Supreme Constitutional Court (SCC). It was not an easy task — it is not simply that the “Islamic sharia” has engendered a diverse set of intellectual inquiries stretching over more than a millennium; it is also that little in that tradition presents itself authoritatively as its “principles.” Ultimately, Egypt’s Supreme Constitutional Court (SCC) embraced a distinctive modernist approach that acknowledged scholars and their traditions but treated them a bit roughly and even as unimportant. Instead, the court interpreted Islamic law de novo using its own distinctive, somewhat idiosyncratic, version of modernist reasoning.

State law would be measured against two different types of Islamic principles: The first were those clearly and explicitly announced in the Quran and that small number of hadiths (accounts of the sayings and actions of the prophet Muhammad) whose authenticity was not merely presumptively true but was entirely beyond doubt — which the SCC found very few in number. The second were overarching principles that could be induced from a study of the scriptures as a whole. Among these induced principles, some of the most important were principles of utility and justice — and the court did not automatically defer to traditional Sunni scholar’s understandings of these terms. Rather it measured laws against its own quite liberal understandings, often arriving at results inconsistent with traditional pre-modern Sunni interpretations of Islamic law.

Those more schooled in traditional understandings of Islamic law found the SCC’s approach a bit too freewheeling, not so much because of the results but because the court refused to anchor itself in the legal precedents developed over the centuries by Islamic jurists. Salafis have been far more willing to dive past all those precedents and rely directly on original texts (Quran and hadiths). But even they were dismayed by the court’s refusal to accept many hadith as binding. And that brings us to the second question.

 

How Did Article 219 Get There?

Article 219 provides firm evidence, if any was needed, that there were many Islamists in the room when this document was drafted. But the clause was not simply a result of their imposing their will. Instead a far more complex process was at work, with Islamists of different stripes and non-Islamists wrangling over the religious provisions. Brotherhood members of the Constituent Assembly insist that they were not behind this language and indeed that it was non-Islamists who pushed al-Ahzar into the document. There is reason to give some credence to some of these claims: the drafting process may have played into Brotherhood hands, but on these issues there was no need for them to be heavy-handed.

The wording was the product of intense bargaining inside and outside of the 2012 Constituent Assembly. The assembly was able to develop a consensus adopting the old wording of Article 2 for the new document. But when they abandoned attempts to tinker with it, they set off contests over defining the principles of sharia principles. And the outcome of that struggle produced Article 219. In order to understand that bargaining, let us review three intellectual camps on the Islamic sharia prominent in these debates. It is in the context of these discussions that the technical terms of Article 219 reveal some of their meaning.

First is an approach often termed “neo-traditional” since it is very respectful of centuries of scholarship. Some Egyptians believed that Islamic law should be interpreted according to the methods that had traditionally been used by pre-modern jurists associated with the four Sunni  “maddhabs” — schools of law not in any physical sense but instead transnational associations of scholars who used a common methodology to develop interpretations.

Most of Article 219’s technical terms come form this traditional Sunni methodology, as taught by the madhhabs, which trained jurists in how to derive Islamic laws from scriptures — the Quran, the hadith literature, and the records of scholarly consensus. (Later jurists would come to call these general scriptural sources of God’s law as adilla kulliyya.) Traditional methodology said that scholars who derived law from these sources should be informed by the interpretations previously established by the great sages of their school. Working from slightly different precedents, each school elaborated a slightly different interpretation of God’s law. Each nevertheless accepted the other schools’ competing interpretations as plausible.

Scholars associated with the four Sunni schools wrote texts in a variety of genres. One set of texts explored questions of how to derive law from scripture (usul al-fiqh). Another elaborated what answers particular scholars had reached about God’s law (fiqh). A third set of texts described underlying principles beneath the rulings that Sunni scholars had reached when resolving questions of Islamic law. Derived through a process of inductive reasoning, these principles (the so-called qawa`id fiqhiyya) were thought to be generally applicable principles of law. When resolving a legal question, scholars would often look first to the qawa`id fiqhiyya and see whether the principles found there dictated a particular answer to the question. If not, the scholars might have to go back to scripture and, using the tools of usul al-fiqh must try to come up with a new rule.

Needless to say, traditional Sunni Islamic legal reasoning was complex and required considerable training. In 20th century Egypt, those who were considered qualified to do it tended to be associated with the mosque-university of al-Azhar.

A second approach — exemplified by the SCC — rejects the idea that Islamic law can properly be interpreted only by scholars trained in a hyper-complex, arguably “medieval” method of legal reasoning. These so-called “modernists” grew out of an intellectual movement that appeared all over the Sunni Muslim world during the 19th and 20th centuries. Modernists developed new methods of interpreting Islamic law — some highly influenced by utilitarian thought. Many utilitarian modernists took the position that Muslims should not feel constrained by traditional Sunni interpretations of Islamic law. Rather, they should derive new interpretations of Islamic law directly from scripture. At the same time, they insisted that scripture contained very few clear rules. It did, however, contained clear commands that Muslims should act to promote social utility and justice. Modern Muslims were thus permitted, and sometimes required, to depart from traditional Islamic rules of behavior. Based on their different views of utility, different modernists might champion progressive or reactionary social regulations. And they turned their back on much traditional vocabulary — when they wrote books about interpretive method they rarely referred to usul al-fiqh. One of the most influential such scholars, the great Egyptian jurist Abd al-Razzaq Sanhuri, was more schooled than most later modernists in traditional understandings. But even when his works used inductive reasoning in new ways, nobody referred to them as explorations of qawa`id fiqhiyya.

A third group of thinkers are often called “Salafis” for their insistence on focusing on the practices of the earliest Muslims (al-salaf al-salih). Salafis are scripturalists who share elements of traditionalism and modernism. Salafis relied heavily on traditional Sunni methods of scriptural analysis — methods discussed in the usul al-fiqh literature. Like traditionalists, therefore, they found in the scriptures considerable numbers of clear rules that had to be followed. Like modernists, however, they were skeptical about the ways in which traditional Sunni thinkers used logic to develop laws for situations about which scripture was silent. And they were just as skeptical about the interpretations of God’s law that had developed in the four Sunni madhhabs and recorded in the fiqh literature and qawa`id fiqhiyya literature.

But the Constituent Assembly was not a seminar room. Salafis and modernists have some common intellectual roots but their current representatives eye each other with bitterness and deep suspicion. For Salafis, modernists have abandoned their Islamic roots to cloak their personal preferences in religious garb. For modernists, Salafis show a mindless obsession with ancient practice on marginal issues and an inability to understand timeless truths in a modern context.

Article 219 was produced not simply by intellectual debates but by hard politics. Salafis were very suspicious of Article 2 as the SCC had deployed it. They wished to ensure that the sharia’s principles were defined and placed in the hands of scholars they trusted. Non-Islamists felt at ease with Article 2 as long as they could be assured that the SCC’s modernist approach could survive.

The Brotherhood’s positions are more ambiguous: it has elements of modernism, neo-traditionalism, and Salafism within its own ranks. But oddly for an Islamist movement, it did not have an enormous stake in this debate. The movement cared deeply about the questions raised but looked elsewhere to pursue its answers. The reason was that it controlled the presidency and looked forward to a strong parliamentary role. In addition, it was happy to pursue Islamization of the Egyptian legal order slowly — by legislation, for instance, or by gradually reshaping the SCC. Brotherhood members of the Constituent Assembly focused far more on simply getting a text — any text — in front of the voters.

And so an odd compromise developed. Those with little stake in the outcome won the most; the two most antagonistic parties (in political terms — Salafis and non-Islamists) took strong positions but had to compromise. Article 219 adopts neo-traditionalist language. Salafis had to content themselves with the assurance that Article 2’s principles were at least being nailed down in some ways, even if it was done in a manner overly deferential to the scholarly tradition. And non-Islamists had to content themselves that if the Islamic sharia’s principles were being defined, at least they were not being handed to Salafis. In their terms, they might be saddled with a bit too much medieval thinking but at least they were not brought back to the seventh century.

So Article 2 is unchanged, Article 4 gives an interpretive role to al-Azhar, and Article 219 produces its jumble of phrases that seems to tie Egypt’s constitution to traditional Islamic jurisprudence.

 

What Impact Would Article 219 Have?

The provisions of Article 219 are likely to be interpreted by anyone familiar with Islamic thought as requiring that law be measured for consistency with legal principles found in the four traditional “sources” of Sunni Islamic law — the Quran, Sunna (the sayings and deeds of the prophet), qiyas (reasoning by analogy,) and Ijma (the consensus of scholars) — and interpreted in a manner informed by a study of texts considered exemplary within the Sunni tradition. Among these texts, must be the traditional Sunni texts dealing with the subject of usul al fiqh [MC1] and qawa`id fiqhiyya.

What would happen if Egypt actually adopted a constitution containing those provisions? That is not entirely clear. To begin, it is not clear that outside of Islamist circles, Egyptians read the provisions as neo-traditionalists might expect them. Some Egyptians may not be familiar with the technical terms embedded in the language. And those who do recognize them may be disinclined to give them full effect.

Choice of one methodology over another does not inevitably lead to particular substantive outcomes. Scholars using traditional methods of legal interpretation often disagree with each other on important questions of Islamic law. Admittedly traditional methods tend to lead to less strikingly liberal interpretations than did the SCC’s modernist method, but some traditional scholars have embraced quite liberal positions.

Ultimately then, the adoption of Article 2 may change the mode in which the legitimacy of laws is debated, in legislative bodies, in the press, and in the courts. If a proposed law is arguably inconsistent with a hadith found in a widely respected hadith collection, those who wish to adopt the law will have to engage openly and seriously with that hadith, and may have to line up scholarly authority to help question that hadith or re-interpret it. To see what such engagement might look like, consider the question of whether the principles of Islam permit a woman to be head of the Egyptian state. In 2007, Egypt’s official mufti weighed in on the question of how to interpret a hadith that appears to preclude women from being head of state. He argued that the hadith does indeed confirm that women could not be heads of certain types of state, but clarifying that the rule did not apply to modern nation states such as Egypt. He has elaborated on this position in an official website.

If the draft Article 219 is included in the Egyptian constitution the marshaling of arguments such as this may become a regular feature of legislative debate and judicial opinion-writing. As such, traditionally trained scholars will play a more visible role in setting the bounds of constitutionally permissible legislation. Nevertheless, on issues in which traditionally trained scholars disagree about the implications of scripture (and this is, in fact, most issues) regulators, law-makers, and judges will have discretion about how to regulate society.

Whether this new rhetorical mode in law making and constitutional adjudication leads to any significant change in law depends on who is making law or reviewing its constitutionality. Four structures will deserve particular attention.

First, most Egyptian legislation is drawn up in the executive branch — in ministries and offices attached to the cabinet — with some help from a judicial body, the Maglis al-Dawla (State Council). Who is in those bodies will likely shape how seriously take Article 219’s charge and how they interpret it.

Second, the parliament has ultimate authority in passing legislation, and the balance of political power there, determined by election returns, will help determine Article 219’s practical meaning.

Third, al-Azhar as an institution may feel authorized by Article 4 to institutionalize itself as the Islamic conscience of the country. That will hand a critical role to its Body of Senior Scholars, a 40-person council recently created by a very controversial law.

Finally, the SCC itself is likely to continue to be called upon to play a major role. The constitution allows the more senior justices on the SCC to retain their positions, and these are precisely the figures who helped apply the SCC’s old approach. They may not feel compelled to bend despite the provision’s fairly precise language. But as they are replaced — and as a new law is written to govern appointment to the SCC — the court’s stance might change to one friendlier to neo-traditional understandings.

In short, Article 219 is likely to change the types of argument that competing forces will have to use when arguing Article 2 cases, but there will continue to be fierce argument about what types of law are permissible in a self-styled Islamic state and, of course, about which are wise.

Clark Lombardi is an associate professor of law and adjunct associate professor of international studies at the University of Washington. Nathan J. Brown is a professor of political science and international affairs at George Washington University and a nonresident senior associate at the Carnegie Endowment for International Peace.  The authors wish to thank Mohammad Fadel and Sohairi Siddiqui for comments on the discussion of technical terminology in Article 219.