In 2008 a Moroccan man and his 17-year old wife immigrated to America. Not long after she filed a restraining order against him, claiming her husband was raping her. The husband did not deny their sexual relations were non-consensual, but said that in his religion, the wife was supposed to submit and do all that he desired of her. The New Jersey judge found that given his understanding of Islam, he did not intend to commit a crime, and was therefore innocent. The restraining order was denied.
Cases like this set off alarm bells that shariah law is coming to America, and in fact is already here. Called “creeping shariah,” this case is given as just one further example of the United States nation forsaking its heritage in an effort to be politically correct and yield to the pressures of local Muslims to live by their own laws, and not our own.
But according to Eugene Volokh, a conservative law scholar at UCLA, it is quite the opposite. Where US judges have made reference to shariah law, they do so within parameters long established in American legal precedent. He notes, importantly, that the judge in the New Jersey case made a legal error, overturned by a higher court which granted the restraining order.
In the effort to understand this controversial and inflammatory subject, his explanation proved very helpful. Here is a list of what is and is not allowed in the American judicial system:
Allowed: Distribution of inheritance according to religious motivation
Not: Asking the court to divide inheritance according to shariah law
US law allows freedom of contract and disposition of property. One may divide one’s property in a will according to whim, or ask a religious scholar to divide it according to shariah law. But the court does not accept competency to interpret religious laws, and would reject a request asking it to do so.
Allowed: Application of foreign law to determine marriage or overseas injury
Not: Specifics of foreign law against US code or procedural discrimination of testimony
US law will accept that two foreign individuals are married if they were legally married according to the law of their country of emigration. If in foreign nations marriage is determined according to shariah, then US courts must take this into consideration for the determination of marriage in a domestic dispute. Foreign acceptance of polygamy, however, has no application in US courts.
Similarly, if an American is injured abroad and sues a company with representation in America, tort laws are determined by the nation in which the injury occurred. But should foreign tort laws limit the value of female testimony, as for example in some understandings of shariah, this has no carry-over consideration in the American lawsuit.
Allowed: Exemption from work rules for religious reasons
Not: Unless it imposes ‘undue hardship’ on an employer or is against government interest
US law permits reasonable accommodation for religious belief, evaluated on a case-by-case basis. So wearing a hijab at work or taking time from the work day to pray may or may not be granted, based on the nature of the employment in question. A famous ruling allowing Muslim taxi drivers to decline a customer carrying alcohol may or may not have been judged correctly, but what is important is that it was based on existing American precedent, not in understanding what is right in Islamic shariah.
Allowed: Granting accommodation to students or clients that impose only modest costs on the granting institution
Not: Evaluation of these requests on the basis of which religious group asks for them
US law allows public and private institutions to better serve citizens and customers by appealing to their religious sentiments, as long as this does not damage the public interest as a whole. Banks have offered sharia-compliant loans, for example, and schools with high density Muslim populations have granted a full day off on holidays rather than just excusing Muslim students. Examples of this sort apply equally to all religious petitions, and must not be judged on the basis of which religion benefits.
Allowed: Efforts to legislate Islamic morality in heavily populated Muslim areas
Not: Unless it violates the Free Speech Code or Equal Protection Clause
US law permits citizens to lobby government to pass laws reflective of morality. In local areas therefore, Muslims are as free as others to pass legislation barring alcohol, for example. Should any locality, however, seek to encode restrictions on “blasphemy” or limit the rights of women, it will stand in clear violation of existing US law and be struck down by the courts.
In addition to Volokh’s analysis, New York attorney Sadakat Kadri wrote in Heaven on Earth: A Journey through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslim World, that US federal arbitration law has been on the books since 1925.
Arbitration law has legitimized religious tribunals for Christian conciliators and the Jewish Beth Din, giving them force of law to issue legally binding decisions. To deny similar right to Muslims, within the context above, would require reforming that law to impact all religious communities.
There are many cases offered by those who warn of creeping sharia, and each must be evaluated on its own merits. There may be examples–many or few–in which the above descriptions have been violated. The above is offered to all who have been affected by the clamor that “the Muslims are coming.”
Indeed, they are already here and are coming as citizens within a nation of laws. They are undoubtedly changing the demographic and culture of our country, as every set of immigrants has done before. That they are Muslims, outside of the general Christian heritage of most previous groups, does add a different application of the American guarantee of freedom of religion. It may also result in these newer Americans who, either unaware or rejecting of American liberty, seek to illegally restrict individuals in their own communities.
But throughout the nation’s history the constitution and bill of rights has worked remarkably well. It should be trusted to continue, no matter the unfamiliarity of those who believe also in shariah. The United States will honor them within reason, and curb any excess that violates our order. On many issues worthy debate must take place. But we must not let fear or demagoguery permit generalization or discrimination.
If sharia law is for Muslims, what is its place in a Muslim-majority nation? If the answer seems obvious, that may be part of the problem.
But another part is understanding sharia law in the first place, and in a helpful article on the blog of the Egyptian Ministry of Foreign Affairs, Grand Mufti Dr. Shawki Allam elaborates on what it is, and what it isn’t:
Far from a medieval code of capital punishments, the Shari’ah is a dynamic ethico-legal system designed to safeguard and advance core human values.
In fact, just as the US Constitution references the basic human values of unity, justice, tranquility, welfare, and liberty, so too each of these is also a fundamental value of the Shari’ah.
The rules of the Shari’ah are derived from the Qur’an and the model behavior of the Prophet Muhammad, peace and blessings be upon him, which complements and/or supplements the Qur’an on issues where it may be silent or require clarifying teachings.
“Islamic law” is not just the Shari’ah but rather is a methodology and the collection of positions adopted by Muslim jurists over the last 1,400 years. That period is marked by a remarkable intellectual diversity with dozens of schools of legal thought at one point.
Interpretation is the endeavor of scholars in each generation. In other words, some rules can change with time and place. The articulation of the Shari’ah is based on built-in mechanisms which aim for articulations of “Islamic Law” to be purpose-driven and considers the prevailing customary, social and political contexts of the time.
This makes the system fluid and dynamic.
And he concludes:
The flexibility and adaptability of Islamic law is perhaps its greatest asset. To provide people with practical and relevant guidance while at the same time staying true to its foundational principles, Islam allows the wisdom and moral strength of religion to be applied in modern times.
It is through adopting this attitude towards the Shari’ah that an authentic, contemporary, moderate, and tolerant Islam can provide solutions to the problems confronting the Muslim world today.
There are many good questions that could be put to the mufti. How would he explain such-and-such behavior of Muhammad? Is Muslim history in this-or-that phase in conformity with sharia, or against it?
But on the whole, his essay is a good reminder that neither Muslims nor sharia are a monolith. As some pull from the Islamic heritage to destroy the current age, others access it in conformity – and presumably both seek first and foremost a fidelity to religion.
But a key question comes to mind.
The Ministry of Foreign Affairs is an institution of the Egyptian state. This state’s official religion is Islam, but it also promotes a concept of equal citizenship independent of religious creed. Why then does the mufti say the following?
Muslims [my emphasis] are free to choose whichever system of government they deem most appropriate for them. The principles of freedom and human dignity, for which liberal democracy stands, are themselves part of the foundation for the Islamic worldview; it is the achievement of this freedom and dignity within a religious context that Islamic law strives for.
His opening sentence is a true principle. But it is true for Egyptian Muslims, as it is for Egyptian Christians and Jews. I am certain there is nothing sinister in the mufti’s words. He has been a staunch defender of the post-June 30 Egyptian state, which is greatly appreciated by the Copts.
But there is a prevalent understanding that equates a nation and its people with a particular faith. For Egypt, this is not wholly inappropriate, as the constitution enshrines sharia as the primary source of legislation.
The mufti’s point, however, is in choosing a system of governance. In this, Egyptians must be referenced, not those of a particular religious creed.
Consider this blog post of the Egyptian Ministry of Foreign Affairs, criticizing Western nations in the wake of the Russian plane crash disaster. In it Galal Nassar, editor-in-chief of al-Ahram weekly, accuses Western capitals of desiring the Muslim Brotherhood to rule Egypt, and makes the following point:
Centuries ago, the West had its own revolutions, and managed for the most part to separate church and state. Why do they think that we cannot do the same? Why do they hold us to ridicule, rather than show respect?
Indeed, it is a form of ridicule to assume the bigotry of low expectations that a people Muslim in religion must also be ‘Muslim’ in the application of sharia law, interpreted in its most illiberal form. Sharia can be a guide; it does not have to be a code. For millions of Muslims living in Western nations this is certainly true.
His point is understood that sharia is flexible and consistent with the modern world. But the question is important: Should it be legislated?
This, in fact, would be a good question for the mufti, one he does not directly address. The closest he comes is here:
Many people are under the impression that Egypt adopted French law. This is not the case. Islamic law was rewritten in the form of French law, but retained its Islamic essence. This process led Egypt to become a modern state run by a system of democracy.
This suggests his answer is ‘no’. In Egypt, sharia is a ‘source’ of legislation, though it is also ‘primary’. But even within his argument the mufti’s implicit understanding is that Egypt is Muslim.
If asked directly, perhaps he would not say it with such clear generality. But all the same he and Nassar reflect the tension inherent in discussing Islam. Religion … politics … identity … law … they are all mixed up together.
The mufti does a good job reminding us that sharia does not have to be scary. But it is still complicated. It always has been.
As President Obama puts forward Judge Merrick Garland as a nominee for the Supreme Court and Republicans balk at a shift to the left, it is interesting to speculate if the recently deceased conservative Antonin Scalia might have been embraced by the Muslim Brotherhood.
I am not a legal scholar, so I am not able to fully consider the weight of Antonin Scalia’s argument cross-culturally. But in an obituary written by Christianity Today I found a particular statement very interesting, especially in consideration of religious rights in the Muslim world.
To begin contrarily, Scalia was clear that his legal interpretation was based solely on the Constitution, not his personal Catholic moral code. Though firmly opposed to abortion, for example, he did not base his vote on scripture.
“I’m a worldly judge,” he said in a 1996 speech at a Catholic university in Rome. “I just do what the Constitution tells me to do.” The only one of the Ten Commandments relevant to the judge’s role, he said, was the command to tell the truth.
This stance bothered some pro-life advocates. For them the opposition to abortion centers in the inalienable right to life, given by the Creator. Yet the logic is consistent with the American heritage of caution concerning religion and state, and Scalia was nonetheless heralded by both religious and judicial conservatives for his powerful judgment.
But here is the statement over which I am still puzzling. It is sensible, but it does not seem right.
“The whole theory of democracy,” he said, “is that the majority rules. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection” through a constitution or a statute.
My mind immediately went to Islam and sharia law. As interpreted by some, Christians and Jews (and perhaps others) are given very clear protections within a Muslim state. But as interpreted by others, these protections fall short of the modern conception of human rights as articulated by United Nations declarations and even, perhaps, the US Constitution.
I have heard Scalia’s argument over and over again from Muslims in the Middle East, and the Muslim Brotherhood in particular argued in terms of a majoritarian conception of democracy. Putting aside the question of the proper understanding of religious freedom in Islam, many expressed their shock that Arab Christians did not appreciate the status they had in the sharia. To them, protection grounded in God’s word was far stronger than that determined by man’s consensus.
But Islamist Muslims — and perhaps others beside — stated that as we have demonstrated ourselves to be the majority through elections, we have the right to legislate according to our orientation. For them this meant the implementation of sharia law, within the Egyptian Constitution and legal code, variously defined. Liberal Muslims and their efforts to afford citizenship rights on the basis of positive law simply lost out.
How would Scalia respond?
A key difference, of course, is that the US Constitution does not base legislation on any particular moral code. As much as many of the Founding Fathers were infused by Christian values, Scalia was right to adjudicate based on the text itself, without reference to any higher text. In America, there is none.
But in many constitutions of the Muslim world, there is. To various degrees Islam is written in as a source of legislation and the religion of the state. This affords their jurists the chance to appeal to their understanding of sharia law, if they so choose. This understanding can be either liberal or conservative, but it is not controversial in itself.
Would Scalia approve if a national referendum passed an amendment to mandate, say, a Christian religious test for public office? Any state or national law would be in clear violation of the constitution, but in this scenario the democratic majority would succeed in altering our nation’s charter, complicating also the Bill of Rights.
Under the United States system of government, and under his own logic, perhaps he would be powerless to resist. But even within current First Amendment protections, it appears that minority religious rights can be restricted by popular opinion. Scalia would be clear that our constitution guards them to a great degree, and he would be among the first in defense. But within the system, perhaps, they can be degraded.
What does this speak to the situation of Christian minorities in the Middle East? Are they hostage to popular demagoguery that might threaten to subject them to second class status?
Perhaps. Civil constitutions in sovereign nation-states govern most of the Muslim world. Many of these grant citizenship rights broadly consistent with UN understandings, but also give leeway to avoid contradiction with a left-undefined sharia. The details are left to interpretation.
But in taking an issue like blasphemy law, clear majorities favor the prosecution of statements deemed offensive to religious sensibility. Freedom of religion and freedom of expression take a backseat, even when guaranteed protection in the constitution.
I do not know how to properly understand Scalia’s remark, but his advice might be clear: Campaign, lobby, and get yourself a majority. Otherwise, be thankful for the God-inspired civil and sharia protections the constitution does grant.
Legal scholars are invited to correct these impressions, but would Scalia fit well in the Muslim Brotherhood? It would be a strange cross-cultural legacy indeed.
For many Christians in Egypt, customary reconciliation sessions (CRS) represent one of the most visceral symbols of discrimination against their community. Existing outside the scope of formal law and justice, CRS offer a quick alternative to the lengthy judicial process as village elders and religious leaders decide matters of guilt, innocence, and punishment.
In some cases, however, punishment against Copts has been collective. In others, the only guilt is in breaking local custom, not law. At times, Muslims guilty of crimes have been ‘reconciled’. And often the CRS is conducted in the presence of police, lending the appearance of state legitimacy to proceedings.
But does this description characterize the CRS in its entirety?
In 2010 Arab West Report conducted a major study into the practice, entitled Social Reconciliation: Pre- and Post-Conflict in the Egyptian Setting. Using a case study from Izbat Bushra, it examined the factors behind and efficacy of this common practice.
In July 2015, AWR investigated a CRS with Georgetown University PhD candidate Matthew Anderson which drove a Christian family from their village in Kafr Darwish. Matthew’s report was published on January 14 and can be found here. In November, 2015 AWR translated a document supplied by a CRS practitioner, Sheikh Hamdi Abd al-Fattah of Maghagha, detailing the proscribed penalties for various offenses.
And on January 16, 2016, AWR returned to Maghagha to allow Sheikh Hamdi to field questions from a collection of interested Egyptians and foreign residents. The session was held in a church in the village of Qufada, where Fr. Yu’annis maintains a strong friendship and CRS cooperation with Sheikh Hamdi.
The following is a summary of the questions asked of the sheikh and the answers he provided.
CRS can be compared to the origins of English common law. Do you find it to be widely practiced in Egypt because of social and cultural acceptance?
Yes, this is correct. CRS is completely different from the judiciary system in terms of speed, but it is like it in terms of Muslims and Christians being equal before the law. But in Upper Egypt people respect our traditional customs more than the law, and fear the punishment of the CRS more than the judiciary. Our proceedings help contain problems before they spread, whether they are between Muslims, Christians, or one of each party.
What is your background as a CRS practitioner?
I have studied Shari’a, obtained a diploma in international arbitration from Cairo University, and am a consultant with the International Arbitration Association and a member in the Egyptian Committee for Customary Arbitration.
How did the rulings in the translated document come to be agreed upon?
Most were the judgments given in actual cases, but others were decided by local sheikhs in order to help prevent these cases from occurring in reality.
Why are all the penalties given in terms of specified fines?
The formal law system can prescribe either a fine or a jail sentence, but not the CRS. But in three cases the CRS is sometimes able to authorize a greater punishment and kick the offending party out of the village, with security implementing the terms. These involve murder, sectarian conflict, or sexual assault.
Do both parties have to agree in order to enter a CRS?
Yes, usually the victim comes to us first, and then we try to get the accused to come also. [At this Sheikh Hamdi showed an official CRS document with the signatures of both parties.]
If the accused does not present himself there are two methods to gain his assent for the CRS. First, we can threaten to involve the police. Or second, we bring the issue to the elders of the village, who are generally greatly respected. They then know how to get all parties to comply.
Are witnesses needed in the proceedings?
Yes. If there is conflicting testimony both sides present their witnesses and we decide between them. But if there are no witness both parties are put on oath by swearing on the Qur’an or the Bible, and then we evaluate the case by what they say. Sometimes police are present, but they do not interfere and lend only their legitimacy.
Some of the penalties demand a very high fine. What if they person cannot pay?
Customary law does not judge the person alone, but his family as well. If the person cannot pay on his own the family must assume the responsibility, or someone else on their behalf.
In the case of murder and if the accused admits to the crime, he will take a symbolic burial shroud to the victim’s family. This signifies him saying to them, ‘My life is yours, you can kill me or not as you choose.’ But always the custom is to forgive and accept the shroud in place of his life.
What about domestic disputes between husband and wife? Can they be part of CRS?
Marriage relations have their own set of regulations, as do other inter-family relationships.
How are the people educated in customary laws?
This is the responsibility of parents, who assume it naturally as part of society. But one important aspect of the CRS is that it is public. A lesson is always stronger if it is both seen and heard.
How can your example of cooperation with Fr. Yu’annis spread throughout Egypt?
We are not a backwards people; we have values and a heritage of civilization. The type of relationship I have with Fr. Yu’annis is not unique, it is found nationwide. Western media is not just, for it shows you only what will reinforce the image it wants to present, and misrepresents our reality of cooperation.
In Kafr Darwish, I blame our local media, for when the Christians were kicked out of their village, it failed to report that in another location a Muslim was kicked out of his village for similar circumstances.
A man was insulting women on social media in Ishneen al-Nasara, both Muslims and a few Christians. I presided over the session and banned him from the village for a period of five years. This penalty was proscribed regardless of his religion, and resembles the circumstances found in Kafr Darwish.
What I want now is for you to return to your countries and speak about us correctly. Will you do that?
Does the so-called Islamic State represent the essence of Islam, or its perversion? The answer supplied often closely aligns with one’s ideology.
But what does ISIS say for itself? Here is testimony gathered by the Guardian on what is taught in the training camps:
Unlike previous incidents of stoning adulterers and crucifixion, throwing people from high buildings [for homosexuality] did not even inspire criticism of sharia in the Middle East because many did not realise it was a sharia penalty in the first place.
But it is the obscurity of the punishment that makes it particularly valuable for Isis. The purpose is not to increase the volume of violence but also to raise eyebrows and trigger questions about such practices, which Isis is more capable of answering than mainstream clerics, who prefer to conceal teachings that propound such punishments.
Many Isis members were eager to emphasise they were impressed by such obscure teachings, and were drawn to the group by the way Isis presents Islam with absolute lucidity.
Similar is the question of whether or not Islam spread by the sword:
We spread our message by proselytisation and sword. Ibn Taymiyyah said ‘the foundation of this religion is a book that guides and a sword that brings victory’. We guide and the sword brings victory.
“If someone opposes the message of the prophet, he faces nothing but the sword. As the prophet spread the message across the Earth, we are doing the same.”
Another member echoed Abu Moussa’s reasoning. “The prophet said: ‘I have been given victory by means of terror.’ As for slaughter, beheading and crucifixion, this is in the Qu’ran and Sunna [oral sayings attributed to prophet Muhammad].
“In the videos we produce, you see the sentence ‘deal with them in a way that strikes fear in those behind them’, and that verse speaks for itself. One more thing: the prophet told the people of Quraish, ‘with slaughter I came to you’.”
The article claims that mainstream clerics prefer not to address these more sordid matters. But here is very thorough counter-tract, called an Open Letter to Baghdadi, with a 24-point refutation of the Islamic State and its practices.
It is signed by Muslim leaders around the world, exposing either the ignorance or agenda of those who rail against ‘moderate Muslims’ for not condemning ISIS. The punishment of throwing from the rooftops is not mentioned, but here is an excerpt from their section on jihad:
The reason behind jihad for Muslims is to fight those who fight them, not to fight anyone who does not fight them, nor to transgress against anyone who has not transgressed against them. God’s words in permitting jihad are: ‘Permission is granted to those who fight because they have been wronged. And God is truly able to help them; those who were expelled from their homes without right, only because they said: “Our Lord is God”. Were it not for God’s causing some people to drive back others, destruction would have befallen the monasteries, and churches, and synagogues, and mosques in which God’s Name is mentioned greatly. Assuredly God will help those who help Him. God is truly Strong, Mighty.’ (Al-Hajj, 22: 39-40).
Thus, jihad is tied to safety, freedom of religion, having been wronged, and eviction from one’s land. These two verses were revealed after the Prophet ﷺ and his companions suffered torture, murder, and persecution for thirteen years at the hands of the idolaters. Hence, there is no such thing as offensive, aggressive jihad just because people have different religions or opinions. This is the position of Abu Hanifa, the Imams Malik and Ahmad and all other scholars including Ibn Taymiyyah, with the exception of some scholars of the Shafi’i school.
And for the benefit of Egypt’s reputation, here is a list of her signatories, many of whom are affiliated with the Azhar:
4. Prof. Salim Abdul-Jalil, Former Undersecretary for da’wah at the Awqaf Ministry, and Professor of Islamic Civilization at Misr University for Science & Technology
5. Sheikh Wahid Abdul-Jawad, Fatwa Council (Dar al-Ifta’)
6. Dr. Mustafa Abdul-Kareem, Fatwa Council (Dar al-Ifta’)
7. Prof. Ibrahim Abdul-Rahim, Professor of Shari’ah, Dar al-Ulum College, Cairo University
8. Prof. Jafar Abdul-Salam, Secretary-General of the League of Islamic Universities
11. HE Prof. Sheikh Shawqi Allam, The Grand Mufti of Egypt
13. Prof. Mohammad Mahmoud Abu-Hashem, Vice-President of Al-Azhar University and member of the Centre for Islamic Research at Al-Azhar Al-Sharif
16. Prof. Mohammad Al-Amir, Dean of the Faculty of Islamic Studies for Girls, Al-Mansoura University
17. Dr. Majdi Ashour, Fatwa Council (Dar al-Ifta’)
18. Prof. Dr. Abdul-Hai Azab, Dean of the Faculty of Shari’ah and Law, Al-Azhar University
21. Prof. Bakr Zaki Awad, Dean of the Faculty of Theology, Al-Azhar University, Egypt
23. Dr. Sheikh Osama Mahmoud Al-Azhari, Islamic Preacher
35. Dr. Mohammad Abdul Sam’i Budair, Fatwa Council (Dar al-Ifta’)
41. Prof. Jamal Farouq Al-Daqqaq, Professor at Al-Azhar University
44. Prof. Mohammad Nabil Ghanayim, Professor of Shari’ah, Dar al-Ulum College, Cairo University
45. Sheikh Dr. Ali Gomaa, Former Grand Mufti of Egypt
55. HE Prof. Mohammad Al-Hifnawi, Professor of Usul al-Fiqh at the Faculty of Shari’ah and Law at Al-Azhar University, Tanta branch
56. Prof. Sami Hilal, Dean of the College of the Holy Qur’an, Tanta University
57. Prof. Sa’d al-Din Al-Hilali, Head of the Department of Comparative Jurisprudence at Al-Azhar University
63. Dr. Khaled Imran, Fatwa Council (Dar al-Ifta’)
71. Sheikh Ahmad Wisam Khadhr, Fatwa Council (Dar al-Ifta’)
72. Sheikh Muhammad Wisam Khadhr, Fatwa Council (Dar al-Ifta’)
74. Sheikh Mohammad Yahya Al-Kittani, Preacher & Imam
76. Sheikh Amr Mohamed Helmi Khaled, Islamic Preacher and Founder and President of the Right Start Global Foundation
81. Prof. Dr. Abdul Hamid Madkour, Professor of Islamic Philosophy, Dar al-Ulum College, Cairo University
83. Prof. Mohammad Mukhtar Al-Mahdi, Professor of Islamic Studies, Al-Azhar University and President of the Shari’ah Society
85. Sheikh Ahmad Mamdouh, Fatwa Council (Dar al-Ifta’)
89. Prof. Mohammad Abdul Samad Muhanna, Advisor to the Grand Imam of Al-Azhar Al-Sharif
90. Sheikh Mukhtar Muhsen, Fatwa Council (Dar al-Ifta’)
91. Professor Fathi Awad Al-Mulla, Pundit and consultant for the Association of Islamic Universities
96. Mr. Abdul Hadi Al-Qasabi, Grand Sheikh of the Sufi Tariqahs in Egypt
97. Prof. Saif Rajab Qazamil, Professor of Comparative Jurisprudence, Al-Azhar University
99. Sheikh Ashraf Sa’ad, Muslim Scholar
102. Sheikh Mahmoud Al-Sharif, Head of the Association of Sherifs in Egypt
107. Prof. Ismail Abdul-Nabi Shaheen, Vice President Al-Azhar University and Deputy Secretary-General of the League of Islamic Universities
113. Prof. Nabil Al-Smalouti, Professor of Sociology and former Dean of the Department of Humanities, Al-Azhar University
121. Dr. Amr Wardani, Fatwa Council (Dar al-Ifta’)
126. Prof. Zaki Zaidan, Professor of Shari’ah, Faculty of Law, Tanta University
At the time of this writing, Prof. Zaidan is the last of 126 signatories. I am not aware of why it is arranged in this order, but high-ranking Egyptians are listed throughout.
Deeper analysis and further study is needed to either rebut or prove the claim that ISIS is Islam, but these scholars are certain it is far from the religion.
If this quote is accurate, it is a terrible indication of the divide between the Coptic Orthodox Church and members who wish a divorce for other than adultery:
Orthodox priest Abd al-Masih Basit told Al-Monitor that the church would not interfere in politics and would not take any actions against Christian parliamentary candidates on the Nour list, as some newspapers had reported it would. Yet, he added, “The Nour Party considers the Christians infidels, and therefore, any Christian who participates in the party is giving up his dignity. It is better for those who have a problem with the church regarding the personal status laws — and who view support for Nour as a solution to amending those laws through parliament — to abandon Christianity.”
The context for the article is that election law requires all political parties to field a limited number of Christian candidates. The Nour Party is Salafi, an ultraconservative form of Islam that is described in quote. The article surmises the only way for Nour to attract any Christians is to appeal to a very specific segment — if sharia law is applied to all, Islamic divorce is far easier than Christian.
Abd al-Masih Basit is a very influential theologian and apologist in the Coptic Orthodox Church. It will be necessary to confirm this quote with him before assuming it is true, but if so, it appears he has his priorities in the wrong order. The church desires to control legislation on personal and family affairs, and the constitution gives it the right to do so.
But it would be a shame if the church is willing to sacrifice the faith of its members to preserve its power.
From my recent article at Arab West Report, continuing a series on the committee which rewrote Egypt’s constitution:
The quip often attributed to Otto van Bismarck may apply to Egypt’s constitution: Laws are like sausages, it is better not to see them made. Recent articles in this series attempt to do just that; peel back the layers to watch how certain articles came to be.
But the quip does not apply as well to the preamble of the constitution, for this was largely the work of one man. Sayyid Hijāb, the esteemed Egyptian poet and winner of the 2013 State Appreciation Award in Literature, described the process.
Hegab describes his oppositional past as a possible reason he was chosen for membership in the Committee of Fifty, and then how he came to be given the preamble:
Eventually the committee agreed to authorize Hijāb and Fadl to write alternate preambles, though Hijāb consulted also with Salmāwi and Bishop Antonius, who represented the Coptic Catholic Church. After about a month both submitted their drafts, and Fadl’s was roundly dismissed. It read too much like an employee report, Hijāb described, while he purposed his to carry the vision of the revolution.
But tinkering with his draft went on throughout, up until the last minute. Hijāb faithfully continued in his subcommittee responsibilities, he said, working on the preamble from home. But while the end product differed from his original text due to negotiating the concerns of some—and the manipulation of others—he is pleased it carries forward the vision.
These concerns and manipulations were largely over religious matters of varying importance:
Most of this description was easily accepted, however. He modified language about ancient Egypt and its early discovery of monotheism, as his original text violated the sensibilities of some religious members. There was some objection to describing the early Christians as ‘martyrs’, he said, but this passed when they witnessed his suitable description of Islam. No Christians complained about describing the ‘light’ of Islam, but non-Orthodox questioned his initial description of the Christian martyrs defending the ‘true doctrine’ of the church of the Messiah. Seeking consensus, he pulled the phrase.
All Christians were pleased, though, by his unsourced reference to Pope Shenouda about Egypt being a homeland that lives in us. No one objected to this phrase either; perhaps some did not know where it came from, he surmised.
But the modern era ruffled some feathers, as he described it as a time of ‘enlightenment’ in which ‘humanity became mature’. Once again, the religiously conservative objected, seeing maturity in the message of the prophets. Hijāb had one conversation in particular with the Grand Mufti, in which he assured him the terms were common in the social sciences as descriptions of the developing world. The mufti was satisfied enough in the end, and the language stayed.
Hijāb proved flexible when he originally intended to describe the ‘sharī‘ahs’ of human rights documents, amending this only to state the constitution was consistent with UN Declaration of Human Rights. But he held ground over the objections of Salafis toward language describing the Egyptian people as ‘the sole source of authority’. These references came in Hijāb’s second section of the preamble in which he described the principles of the revolution and the basics of political vision.
Salafis view God alone as possessing authority, but they received a different goal in the end. After long discussions about defining the role of sharī‘ah within the body of the constitution, they won its mention in the preamble, defining interpretation according to the collected rulings of the Supreme Constitutional Court. Here the poetic vision of Hijāb’s text is broken, for this reference even contains a footnote, saying these rulings are to be deposited in the official minutes. Hijāb did not intend for sharī‘ah to be mentioned in the preamble at all, finding its place in Article 2 to be sufficient.
But perhaps the Salafis received a bit more, though for whose benefit cannot be said securely. The reference to sharī‘ah was won through negotiation, but Hijāb believes a second late change came through manipulation. Salafis were strong, though not alone, in arguing against reference of Egypt as a civil state. In the end a compromise was won to declare Egypt had civil governance, and this is reflected in the official draft Hijāb submitted for the final vote. But at its reading, ‘Amr Mūsa spoke ‘civil government’ in its place, and Hijāb believes it was deliberate. In any case, though he and Bishop Antonius objected, it entered the record as the preamble was voted on and approved unanimously.
Please click here to read the preamble (and constitution) in its entirety, and here to read the full article at Arab West Report.
From my recent article at Arab West Report, in the series on Egypt’s constitution. This text opens with a consideration of Salafi participation in both the 2012 and 2014 charters, and proceeds then to examine their chief triumph:
This article [219 in the 2012 constitution] was quickly scrapped by the new committee, but the [Salafi] Nūr Party representative continued to press. His lone leverage was in the desire of the transitional government to frame its discourse as anti-Muslim Brotherhood, in response to a popular revolution, rather than as anti-Islamist per se, and certainly not as anti-Islam. The presence of Nūr legitimized greatly.
For their troubles, they received a small reference in the preamble of the constitution. It was agreed upon at the very close of proceedings, and states:
‘We are drafting a Constitution that affirms that the principles of Islamic Sharī‘ah are the principal source of legislation, and that the reference for the interpretation of such principles lies in the body of the relevant Supreme Constitutional Court Rulings.’
But what does this mean for future legal interpretation? Is it only a means for them to save face, or will it have real impact on future constitutional rulings? A partial answer is to examine one of these relevant rulings, from 1996, and see what it says. Two girls were expelled from school for wearing the niqab, a garment that covers all but the eyes. The court ruled against them, as they appealed to sharia law and freedom of religion:
Sharī‘ah establishes the necessity of morality, the judge argued, even quoting the Qur’an. But sharī‘ah nowhere establishes that a woman must wear a niqab. On the contrary, and in dismissive wording, it compared such a woman as kept from interacting with society and going around as a covered ghost.
The constitutional guarantees of belief and individual freedom, the judge explained, are to follow and practice a religion in the manner the religion instructs. Since scholars differ about the nature of a woman’s dress, there is no firm principle on this matter in sharī‘ah. Therefore, the government is within its rights to establish a dress code as it sees fit, while staying within the principle of modesty as is clearly required by Islam.
Sharī‘ah, the judge wrote, is principally about truth and justice, and is naturally progressive to change with the time and place. This guarantees it flexibility and vitality, so as to guard its purposes (maqāsid) in preserving religion, life, reason, honor, and property. No one scholar’s view should be made holy over another’s, and even the Companions of the Prophet made their rulings based on the benefit of the people. There is no reason to either consider or cancel them, but to judge independently based on the benefit of today.
Salafis originally wanted to tie sharia interpretation to traditional rulings, not just purposes, as interpreted by senior scholars from the Azhar. These provisions were written into the 2012 constitution but lost in its 2014 amendments. Seeing such a ruling as this, it is clear they do not trust the court.
But maybe they got what they wanted, through the court, even in what evaded them in 2012:
In order to replace the sharī‘ah-escaping word ‘principles’, the Nūr Party sought to change it in Article 2 with the more strict ‘rulings’ (ahkām). They did not gain consensus, and even in Article 219 the words translated as ‘rulings’ do not reflect the strictures of the Arabic ahkām.
But the SCC states in its May 18 judgment that Article 2 is based on the ahkām of sharī‘ah, in its foundations and general principles, using language reminiscent of Article 219. Furthermore, these ahkām may not be violated where they are maqtū’ bi thubūtiha au bi dallālitiha. This phrase means that the rulings are clear and proven, either by the Qur’an directly (thubūt) or through jurisprudential reasoning (dallālah).
But this is not restricted only to hukm qata’i, where there is one accepted meaning only. It includes also hukm zanni, where many meanings and interpretations have been suggested. The point is that sharī‘ah encompasses the historic work of scholarship, and legislation must not transgress its bounds. Within this sharī‘ah heritage, no voice is sacred and new voices may emerge with the times. But as the parliament creates law, the judiciary judges within the hedge of sharī‘ah. This is not the language of a judge seeking to ignore it.
But perhaps this is all legal semantics, and what really matters is who is in charge. From the conclusion:
It may not be the language of the constitution that is of paramount importance, but who writes it. The 2012 constitution signaled a transition to a new Islamist order; the 2014 signaled a reversal. The reversal, however, includes preamble language authored by the Salafis, and the terms of debate bound by Article 2.
If correct, this interpretation suggests the forces of reversal remain in control, and less-than-Islamist rulings are likely to issue from the SCC. But it also suggests that Salafis have a place at the table, and may through this constitutional nod win either legislation or rulings that reflect conservative religion.
In this sense, does their defense of sharī‘ah mean also the defense of their existence? It is too early to tell, but it has resulted, at least, in a public constitutional reminder that sharī‘ah remains the basis of legislation.
That this reminder can be interpreted flexibly fits well the overall ambiguity of the political situation, Nūr included.
Please click here to read the full article at Arab West Report.
From my recentarticle at Arab West Report, continuing a series on the people who wrote the constitution:
Sa’d al-Dīn al-Hilālī is a professor of comparative jurisprudence at Azhar University, where he is acknowledged as an expert in both sharī‘ah and international legal systems. Perhaps for this acumen he was selected as a member of the Committee of Fifty tasked to amend the Egyptian constitution. But he does not know, because he was not one of the three members chosen to represent the Azhar officially as an institution. Instead he was picked in the category of ‘general personalities’, learned of his selection via the television, and has never received an explanation why. He is quite happy not knowing, as he can express his appreciation to God alone.
The Azhar is the premier religious institution in Egypt, perhaps in the Arab world. Many consider it to be a ‘moderate’ body; if so, Hilali is a radical in the opposite direction:
Though Hilālī preferred not to characterize the internal workings behind either the disagreements or consensus, he spoke frankly about how he communicated to his colleagues on the topic of sharī‘ah. Most accepted what will be described below, he said. Some, who prefer to rule the street by claiming they ‘protect’ sharī‘ah, taking advantage of illiterates in doing so, were less pleased.
Article 2, for example, was previously inserted in the constitution only to satisfy these illiterates. They believe such a clause is necessary for them to go to heaven, and all the while they are laughed at by those who exploit them in pursuit of power. What does it mean that Islam is the religion of the state? Nothing. What are the principles of sharī‘ah that must be the main source of legislation? Only the concepts of mercy, justice, and equality, over which no one disagrees. If the United States were to draft sharī‘ah into its constitution, would that make everyone a Muslim? If Egypt were to make Christianity the religion of the state, would he become one? No, these are personal matters between the individual and God, each of whom interprets religion in his own way.
If this sounds like the general understanding of religion in the West, read on:
Fair enough, perhaps, but does not Islam as a religion demand some measure of public enforcement, based on the will of God? Muslims are tasked with the role of ‘commanding right and forbidding wrong’, so what is involved in doing so?
Correct interpretation, Hilālī argued, is that right and wrong are calculated for all, not by the individual, and can be equated well with the principles of sharī‘ah as the constitution states. He listed as examples helping parents and neighbors, working rather than unemployment, and refusing terrorism and killing, and said the rest is to be worked out by the judiciary and the police. As for the famous hadith that instructs the Muslim to correct a wrong with his hand if he is able, with his tongue if he is not, and with his heart as the least requirement of faith, Hilālī accepted it. The hand is the hand of the state, the tongue is the voice of the preachers giving enlightenment, and heart is for everyone else outside of these contexts. In this he is in line with much historic interpretation of sharī‘ah, but not all.
But this is fine, he might say. After all, sharī‘ah is meant for guidance and knowledge. Once its details are sought to be enforced in the public square one Muslim will clash with another over what is allowed and what is forbidden. This is in fact what happened to Egypt, and remains in the current struggle. Europe eventually rid itself of religious authority, he said, and this was Egypt’s trial now. America has achieved this light in its constitution, he believed, but now seeks (through support for the Brotherhood) to deny it to us.
Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, continuing a series of interviews with members of the Committee of Fifty which wrote the constitution:
Seeking to represent all sectors of Egyptian society, the Egyptian Committee of Fifty to amend the constitution of 2012 was light on political parties. Only four seats were assigned, two for liberals and two for Islamists. This was in contrast to the Committee of One Hundred that wrote the 2012 constitution, which was heavily populated by political figures from the Islamist Freedom and Justice and Nour Parties.
After the fall of Morsi, however, few Islamists remained on the formal political scene. The Nour Party was the most prominent, representing the Salafi trend. One seat went to them, but who could represent the Brotherhood trend, with the Brotherhood boycotting the process? Announced as a representative of the Islamist trend was Kamal Hilbāwī, a former Brotherhood member who resigned in 2012 in protest of the group’s decision to field a candidate for president.
Helbawi was a member of the drafting subcommittee which was responsible to merge all articles into one contiguous text. To do so they changed articles according to language and syntax, but did not hesitate to also adapt the meanings.
But one of the most interesting points of his testimony concerns the negotiations with the Nour Party that resulted in the former Article 219, defining the principles of the sharia, moved in essence into the preamble and made subject to the Supreme Constitutional Court:
But in a compromise agreement the definition of the principles of sharī‘ah was moved to the preamble, with the term of reference being the collected rulings of the Supreme Constitutional Court. These are about 4-5 cases, he estimated, involving sharī‘ah interpretation issued by the highest court in the land since 1985. Having a definition makes sense, Hilbāwī believed, for someone might want to know what the principles of sharī‘ah are. These cases were entered into the official transcript of the constitutional proceedings, and the preamble of the constitution has equal weight with its articles, according to Article 227.
But reference to the rulings of the SCC raised the issue of why Article 219 was necessary in the first place, if the court already defined the principles of sharī‘ah. Perhaps the legislature did not adhere adequately to these rulings, but if the legal basis was there, what was the big deal? And in any case, if the language of 219 was in the SCC rulings, does this explain why the Nour Party was satisfied?
Hilbāwī dismissed the criticism by liberals of Article 219 that it would have opened up the entire corpus of sharī‘ah legal history to implementation in legislation or in court rulings. But in referring to the charge of Safwat al-Bayādī, confirmed in his testimony of the response of Sa’d al-Dīn al-Hilālī, that the testimony of Christians might not be given equal weight to Muslims, as was once in Islamic history, Hilbāwī said ‘perhaps’, in recognition of Hilālī’s rejection of 219 and his status as a very good scholar. There are still shaykhs in Egypt, mentioning Abū Islām and Mahmūd Shabān in particular, who advocate very retrograde rulings. But given the firm guarantees on equality present throughout the constitution, Hilbāwī does not expect any sharī‘ah-based impingement on general freedom.
The article also contains a first effort to understand what the religious language of sharia interpretation means. Please click here to read this and the whole article at Arab West Report.
Bishop Antonious Aziz of the Coptic Catholic Church served as his church’s representative on the Committee of Fifty which rewrote Egypt’s constitution. He agreed to an interview with Arab West Report on December 10, 2013, shortly after the final text was approved by the committee and just over one month before ratification by the Egyptian people in a referendum on January 14-15. In the interview he provided clear and frank insight into the inner workings of the committee.
Arab West Report has provided a full transcript of the interview, available here. To summarize, Bishop Antonious described the process of his selection by the president and church, and the subcommittees on which he served. Each member assigned himself a place in one or more of five groupings: Basic Components of the State, Rights and Freedoms, System of Governance, Listening, and Drafting.
The bishop worked in the first and last of these subcommittees, making him uniquely qualified to comment on the passage of the key religious articles, from start to finish.
The listening committee received proposals from hundreds of citizens, forwarding these to members of the appropriate group. The group would interact with these alongside their own proposals, taking internal votes to forward their consensus text to the drafting committee. The drafting committee would then amend both wording and content as they saw fit, sending the article back to the subcommittee to produce a consolidated text. This text would then be debated by the full Committee of Fifty, which after agreement would enter a final, non-binding review by the Committee of Ten. These ten were constitutional experts who provided the Committee of Fifty the initial amended copy of the 2012 constitution, from which to work. Finally, every article required a 75 percent vote of approval to merit placement in the constitution, and the majority of articles passed without difficulty.
Getting to the place of passage, however, often entailed much difficulty. This was nowhere more evident than the religious identity articles which lead the constitutional text. Because of the difficulty, these were postponed until the end.
Bishop Antonious described the interaction between the church, Azhar, and Salafi Nour Party representatives. In Article 1, should Egypt be part of the Muslim nation (ummah)? Should Article 2, making sharī’ah the primary source of legislation, remain in the constitution? Should it be further interpreted, as done in Article 219 of the 2012 constitution?
Should Article 3, giving rights in personal status and religious organization to Christians and Jews, be extended to non-Muslims in general? Should Article 7 maintain language from 2012 giving the Azhar a role in the process of legislation? In all these articles and more, Bishop Antonious provided insight into the manner of discussion which eventually produced agreement. He also describes the personal interaction and attitudes experienced along the way.
Not everything in the final text met with Bishop Antonious’ agreement, and he is frank about some of these areas. But even so, the end result is a constitution with which he is deeply satisfied. Please click here to read the full transcript of the interview at Arab West Report.
From my recent article in Arab West Report, continuing a series of interviews with members of the committee which wrote the constitution. Abadir is a founding member of the Free Egyptians Party, and was selected to participate as a stand-by member in case of possible resignations. But he was far more active than that:
Within his own subcommittee, Abādīr related he was free to influence the discussions, lobby, and explain his viewpoints. He never felt like a second class citizen. He was present at the internal voting of the subcommittee, and witness to the early contentious debates on Egypt’s identity issues.
‘Early’ debates, because midway through the process the reserve members were sent home. He complained to no avail, but provided insight as to the process of these contentious debates, which were eventually decided long after he left:
Abādīr explained that this liberal majority did not want Egypt defined in light of religion. They desired a civil state that had nothing to do with religion, dealing with citizens irrespective of their beliefs. They tried to insert this word ‘civil’ into Article 1, but met stiff resistance from the Azhar representatives and the Nour Party. Ten were in favor and only four against, but the word was removed. Later on it was attempted to be put into the preamble, but again the Azhar and Nour Party objected, so it was substituted for ‘civil government’, rather than a ‘civil state’. This was done in conjunction with removing language that placed Egypt as part of the Islamic ummah, which has ideas pointing toward a caliphate, and instead listing it as part of the Islamic ‘world’.
In Article 2 Abādīr stated his group wanted to make sharī‘ah ‘a’ source of legislation, removing the word ‘the’ that had been changed by President Sadat in 1980. ‘Everyone’, he said, thought this article should be phrased differently, but they decided to leave it unchanged. ‘Responsibly so,’ he commented, for in the charged atmosphere Egypt is in any adjustment would cause more trouble than it was worth.
So when the internal subcommittee vote proceeded, Abādīr expected it to pass unanimously among all fourteen members present. It did not. Zarqā’ of the Nour Party objected, and said he would support it only in conjunction with Article 219, which in the 2012 constitution provided a specific interpretation of the principles of sharī‘ah. This was somewhat out of order, Abādīr said, because their subcommittee was only tasked with discussing the first fifty or so articles of the 2012 text. But having brought it in, the committee immediately threw it out. Eventually the committee would semi-compromise in the preamble by leaving the interpretation of sharī‘ah bound by the collected rulings of the Supreme Constitutional Court. These, Abādīr said, rely on the sharī‘ah only where no scholars disagree, leaving the principles of sharī‘ah to equal the broad principles of humanity.
But the earlier resistance to Article 219 prompted Zarqā’ to leave the committee entirely – on health grounds, as reported in the press. The Nour Party did not withdraw from the committee, but substituted Ibrahim Mansour in his place. But Abādīr had a different take on these ‘health’ reasons. He stated that Zarqā’ said when he saw us he felt he wanted to throw up, that we were nauseating, and these were the exact words of his declaration. He felt that we were insulting all his beliefs. Mansour, he said, was more diplomatic in his listening, though their opinions were the same.
But in his absence the subcommittee discussed Article 3. Previously this article gave Christians and Jews the right to refer to their own ‘sharī‘ah’ in matters of personal affairs, religious rites, and leadership selection. Abādīr said liberals wanted to change it to state ‘non-Muslims’, but the Azhar representatives would not accept this, as it would open up rights for religions not recognized in Islam. Though the internal vote was ten to three, above the target threshold of 75 percent, they failed.
Article 4 of the 2012 constitution dealt with the Azhar, which became Article 7 in the new charter. Here there was unanimity with the Azhar, for all wanted to remove the previous stipulation stating the opinion of the institution had to be taken in all matters of legislation that might concern sharī‘ah. Otherwise, Egypt might find itself in the Iranian model in which the mullahs have a say in every law.
In most of the other articles discussed in the subcommittee, Abādīr stated, there was general consensus. Only on these first four did contention arise, prompting Mūsa to take them away and basically ignore the work and the votes of the subcommittee.
Please click here to read the full article at Arab West Report.
From my recent article in Arab West Report, about warnings that Salafis, despite only having one member in the Committee of Fifty to amend the 2012 Constitution, were nonetheless exerting undue influence against a liberalizing majority. Some argued they were being placated on several issues so as to keep them involved in support of the overall roadmap:
Arab West Report does not here differ with Coptic Solidarity about the potential implications of furthering the role of sharī‘ah law in the Egyptian Constitution. Their concerns are valid and worthy for discussion. Their statement, however, allows an opportunity to provide context for this struggle.
The mobilization of Tamarrud against President Mursī culminated on June 30 in vast protests calling for early presidential elections. A significant percentage of protestors were motivated by sectarian tendencies reflected in his policies and the predominance of the Muslim Brotherhood in the administration of government. But many protestors also called for his removal due to the ineffectiveness of his government in terms of the economy, security, and general standard of living of the ordinary citizen. Finally, the decision to oust Mursī, taken on July 3, was supported also by the Nour Party, Egypt’s largest political representation of Salafīs.
It is not possible to gauge the level of ordinary Salafī support for the removal of Mursī. It is clear that many sided with the president through their participation in the sit-in protests dispersed violently on August 14. But many Salafīs also voiced consistent opposition to Mursī, though for reasons at times very different from those of their liberal and leftist allies of convenience.
Therefore, Arab West Report wishes to nuance the sentiment of Coptic Solidarity when it speaks of the “dreams of most Egyptians”. The Egyptians who bravely fought against Mursī were diverse.
Yes, diverse, though the Salafi presence was one of the less numerous participants. But their strength in the committee came from another source:
By including the Nour Party among the Azhar and Coptic Orthodox Church, the military was able to portray its action as one of national unity, to remove Mursī who had transgressed the popular will. Early overtures to the Muslim Brotherhood also contributed to this rhetoric, though whether offered sincerely or otherwise, failed to bring Mursī’s parent organization on board. But without the key role played by Nour, the military risked allowing an opposite rhetorical stratagem, that of portraying Mursī’s removal not only as a coup against democracy, but as a war against Islam. With the largest Salafī political party in cooperation, this latter accusation was severely muffled.
By acting either from brave conviction or political acumen, the Nour Party risked alienation from its key constituency that still hoped Mursī might provide the rule of sharī‘ah. As the crackdown ensued on the Muslim Brotherhood in general, non-Islamists might say that Nour’s survival as a political entity is reward enough for their participation. But as article after article is debated, Nour holds the threat of switching sides and mobilizing against a constitution free of sharī‘ah. In an already polarized environment, supporters of the new government are ill at ease risking further agitation against them, let alone igniting a voter base that may rise against the constitution in the upcoming referendum.
This, therefore, is the “intense pressure” to which Coptic Solidarity is worried the committee will succumb. It is an understandable fear. This close to a “window of opportunity” in which they can win every article demanded, will the chance be thrown away simply to placate the Salafīs?
Unfortunately, this idea that Salafi viewpoints should simply be outvoted recycles the logic of the earlier constitutional committee which exhibited Islamist numerical dominance. The failure of consensus was greatly criticized by liberals at the time. Now, it appears, some desire it.
Or, such language was simply a pressure technique of their own. If so, here is the final article excerpt, from the conclusion:
But AWR also recognizes that long term social peace depends on the ability of all Egyptian citizens to come together and decide their national charter. None must yield on principles, and Coptic Solidarity is right to advocate strongly.
As Salafīs advocate in return, it is good to take a step back to see the big picture. They also are part of the June 30 revolution. However much the Committee of Fifty represents the diverse institutions of Egypt and the participants in the overthrow of Mursī, it does not represent fully the diversity of political-religious thought. Fair enough, perhaps, as many Islamists rejected their place at the table. But unless a wide consensus of society is able to approve the final constitutional text, it will take its place in the line of charters drawn by an elite and swallowed by an unengaged people, even if they vote for it.
Salafīs should not be placated, but neither should they be alienated. Their pressure is valid.
Please click here to read the full article at Arab West Report.
I believe events like this conference in Jordan, excerpted below, are absolutely necessary, even if they don’t really go anywhere. But agreement can never be achieved unless they go at all. Here, from al-Monitor, is an example illustrating absolutely different worldviews:
So an obvious question was posed to the Islamists: Do you accept, alongside your Islamic laws and alongside the personal status laws for other communities, that in your countries there is also one civil personal status law that is optional? In other words, do you accept that a person is given the choice to either follow the laws of his sect or leave his sect and resort to the civil law under the confines and protection of the state?
Faced with this question, the Islamists did not hesitate to assert their absolute refusal of the proposal: a civil law, even if optional, is forbidden — a person may not leave his religion. By “person” they mean a “Muslim,” because current laws allow non-Muslims to convert to Islam. Sometimes they even encourage it as a means to either escape harassment or obtain a government job reserved for Muslims, in addition to dozens of other reasons.
In lieu of agreement, the article states attendees suffered ‘a vicious cycle of pleasantries’. Such a description characterizes much inter-religious dialogue, and is useful in its own right. Pleasantries can lead to friendship.
But what is necessary, especially in Egypt, is for Christians and Islamists to wrestle over the future of their nation. Christians may not be able to force their way, but if Islamists were to seek their blessing, and do all that is necessary to get it, they just might succeed.
The Islamists did not hesitate to confirm they have the right to reach power as they see it and practice it. They kept repeating the following mantra: “We will only resort to democracy that emanates from the ballot box.” Many tried to explain to them that democracy is not just the ballot box, but the Islamists did not pay them much attention. The Islamists’ main concern was to assert their rejection of what happened in Egypt and confront the rule of the “coupists,” as they call Gen. Abdel Fattah al-Sisi’s rule, against the legitimate authorities. Regarding the concerns of their fellow Christian citizens, it seemed to a large extent to not be part of their concerns today or tomorrow.
Unfortunately, this has largely been Egypt’s experience.
It is hard for anyone to be humble. Many Islamists might find it even more difficult to seek this Christian blessing, as they see themselves as the possessors of the completed and perfected faith, and furthermore, they are numerically superior. How arrogant, they might think, of Christians not to yield. Don’t we give them protection under sharia law?
Ah, but this means little to them:
One last example that illustrates the dialogue’s difficulties was the discussion about personal status laws in countries dominated by Islamists. The Islamists usually try to show that they are open to other groups by supporting, as a rule, that other sects are given their own personal status laws — whereby every sect is given its own laws governing marriage, divorce, inheritance, adoption, transfer of ownership and other family matters. But at the same time, the Islamists insist that Islamic law is a “major” or a “principal” source of legislation of the state. Discussion by Christian participants at the conference showed that this rule is not sufficient, fair or balanced. In fact, it often conceals a gradual process to subdue non-Muslim citizens in those countries by degrading the minorities’ demographic and geographic presence, Islamicizing society and eliminating pluralism.
Islamists either smile slyly at this complaint, choose to ignore it, or else they cannot even comprehend it – confident in their understanding of God’s will in sharia law as best both for them and for Christians. True humility is harder for the one who believes that he already humbly and generously gives to his ‘lesser’. They have a point, but humility does not prove points. It loves and embraces.
So what should humility look like for the Christians? No one must ever abandon principles and convictions. Humility is not a game of power and pressure. Rather, it must come in an acknowledgment that Islamism is a strong societal impulse, and those who possess it are their fellow citizens.
Here is where it is easy, and necessary, for me to duck out of the discussion. If both sides came humbly, what would they decide? Here, I have no say. Even in asking both sides to come to the table I have nearly gone to far. Why should they yield even that initial bargaining position, when sides are viewed in mutual distrust?
I don’t know, and I can’t convince them. All I can do is trust that it is ‘right’. All I can hope for is that God would honor it, and dishonor all who seek first their particular benefit.
After all, the status quo is not working. Christians are often ignored or used as pawns, and Islamists have failed to successfully establish their project anywhere there is religious diversity.
It is not dialogue that is necessary, though it is helpful. It is wrestling. It is the sort that, like Jacob with the angel, would not let go until he secures a blessing. It is the sort that engages in respect and will not cease until it is mutual.
I don’t know, maybe that is not humility at all. But humility might be able to avoid Jacob’s fate. Though he obtained his blessing, he lived the rest of his life with a dislocated hip.
Christians and Islamists have dislocated far more. Perhaps it cannot be otherwise. Perhaps their ideas are completely incompatible.
Fair enough. Ideas cannot be humble, they can only seek their own. But people are more flexible. People can wrestle.
People can bless. It is time Christians and Islamists begin this strategy with one another, even if unilaterally.
Most people I have interacted with since our return to Cairo are very positive about the nation’s future. They are glad to see Morsi go, the Brotherhood discredited, and though they anticipate a few hiccups from disgruntled Islamists, they expect a return to stability and normalcy within a few months.
Here are two voices which suggest otherwise.
The first is from the Daily News, from Mahmoud Salem, aka Sandmonkey, a liberal blogger who does not have rosy glasses, though he once did. Quite the opposite, in fact:
The “returning” police state is an illusion; the police can’t even protect their own stations. Anyone can see that there is no state, only people who believe they have power, enforceable by guns, against a population that is hungry, armed, and has grown desensitised from violence amidst an economic situation that borders on catastrophic. Throw Islamists in the mix, a military curfew that just got extended for two more months, vanishing tourism for the third year running, and the financial and economic repercussions of the “war on terror,” and anyone can tell you that this won’t end well economically. On a separate but related note, locally manufactured cigarettes are already disappearing and reappearing in the black market.
Every activist I know fears the return of the police state. Every non-activist I know is wondering where the police are.
The other illusion is the return of Mubarak’s “feloul” to power, which won’t happen. You see, the businessmen feloul, the face of the NDP for years, will not be able to take over this time, because at the end of the day they are not “true feloul,” but rather, the elites who utilised the NDP for power and were used by the NDP political leadership as a front. They were in power because the NDP leadership forced them upon local leaders, had them run for office in areas where they could never win on their own; if you followed the parliamentary elections of 2005 and 2010, it already wasn’t working, with the NDP sometimes fielding four candidates against each other in every district. This used to happen when the NDP was in full operation, with a politburo and a state behind it. Now, there is no politburo, no party, no leadership or symbols, with every man for himself, and the “true feloul,” the drug dealers, arms traders and big family criminals who have armed gangs, are about to become the true rulers of the country, since they will be the only force capable of ruling the streets that are void of state control. Only the most brutal of them will end up winning a parliamentary seat in a full individual seat election.
The disintegration of the state will lead to the rise of “local leadership” as a street stabilising force, which means that our streets will be gang-controlled. The state’s ability to provide security in such conditions will become rather limited or, to be more accurate, impossible. The bad security will lead to a worse economy, which means that the corrupt government officials will become more vicious with their bribe demands, which would serve as their source of income, as their actual one begins drying up. Infighting will ensue amongst different branches of the government over patronage, because a contracting economy will equal less stealing, and consequently, more ruthless infighting.
His article is lengthy and worth reading, and actually gets to some, gulp, good news. The above state of affairs will continue for three years or so, and then the exhausted powers that be will eventually run out of partners with whom to divide up the pie that is Egypt.
On the brink of becoming another Somalia, they will finally yield to the principles and goals of the January 25 revolution. It’s advocates may be the only ones to desire reforming the mess that Egypt will be by then.
Speaking of Somalia, here is a more journalistic account of this process set in motion, by Foreign Policy:
In the Sinai Peninsula, where government buildings and checkpoints have been bombarded by rocket-propelled grenades (RPGs) and car bombs on a near-daily basis in recent weeks, the Egyptian state is losing ground to ultraconservative Islamists with an alternative vision for rule of law. The growing influence of self-taught sharia judges who uphold the Quran over Egyptian law reflects an alarming erosion of state sovereignty in the Sinai Peninsula. In late August, state courts in North Sinai were forced to transfer all of their cases to the comparatively stable jurisdiction of Ismailiya, in the face of escalating attacks by armed extremists targeting government buildings and security personnel. This week, two prominent sharia judges were among 15 hard-line Salafis arrested on charges of inciting terrorist attacks, as the Egyptian government struggles to contain rising extremism. But despite the current crackdown, it is clear that the deeply entrenched sharia courts of North Sinai are here to stay.
Since the removal of former President Mohamed Morsi on July 3, the already fragile government in Sinai has been further crippled by a wave of armed attacks, ambushes, and car bombings by militants equipped with increasingly sophisticated weaponry stolen from police stations or smuggled across Egypt’s borders with Libya and Sudan. The escalation of violence has forced the closure of a critical police station in Arish and the evacuation of other government buildings, creating an institutional vacuum that sharia courts are opportunistically exploiting.
The outsourcing of traditional law enforcement functions to non-state actors is reminiscent of a pattern seen in failed states like Somalia, where powerful Islamic courts with their own private militias and ties to al Qaeda seized control over vast swaths of the country in 2006. While the sharia courts of Sinai are nowhere near as institutionalized as those in Somalia, they similarly aspire to absorb the functions of state institutions that are failing to govern.
These courts are not run by radical extremists, as the author makes clear, but some might not find much shade of difference in their end game:
Sharia judges, eager to disassociate themselves from more radical Islamists, are quick to enumerate their moderate credentials and tolerance of religious minorities. Beik insisted that the courts operate on a purely voluntary basis and would never forcibly impose Islamic law on non-Muslims without their consent. To illustrate this point, he proudly informed me that the House of Sharia Judgment has heard three cases involving claims by Christian litigants against Muslim adversaries since the revolution, and in all three cases, the Christian party prevailed — a fact he cited as evidence of the courts’ neutrality.
But although the sharia judges of North Sinai pay lip service to liberal democratic principles of inclusion and equality, they ultimately aspire to establish a parallel state governed not by Egypt’s constitution, but by a retrograde interpretation of sharia that relegates women and religious minorities to second-class citizenship. For now, their rulings are purely advisory and non-binding. But Abu Faisal predicts that his court’s decisions will one day carry the force of law in the Islamic emirate he hopes to see established in the Sinai. “Sharia is already the law of the land here,” he said. “God willing, someday it will be the law of the state.”
I maintain optimism for Egypt’s future. Prognosis, however, is currently beyond my confidence to assert.
Dutch scholar Johannes Jansen contributed an essay – ‘The Religious Roots of Muslim Violence’ (opens in a Word document) – to a 2011 anthology entitled, ‘Terrorism: Ideology, Law, and Policy’. In it he makes the case that violence and terrorism are part and parcel of the Islamic religion, traceable to its root sources at every level of sharia construction. Jansen’s scouring of the sources is admirable, and he launches several challenges to an irenic understanding of Islam. Unfortunately, he gives short shrift to worthy counterarguments, instead presenting the reader conclusions deemed unassailable, established on the basis of his insight. While his insight is formidable, it is not conclusive. As a scholar he would do well to simply present both sides.
That Jansen does not is unfortunate, since it bathes his text in a bias which obscures a viable link between violence and Islam. Desiring to damn Islam in its entirety, he allows a critic to dismiss his work given its failure to admit other interpretations. Jansen instead takes upon himself the role of mujtahid (one who interprets) and throws down the gauntlet as well as any extremist scholar or caller to jihad. The only difference lies in condemnation versus approval.
This text will first present the legitimate challenges marshaled by Jansen, then demonstrate some of the ways he overstates his case, and close with a selection of examples where his argumentation is simply faulty, and at times, dismissive. A serious scholar of Islam would do well to outright refute many of his judgments; this review will suffice to proceed from a generalist’s knowledge. The reader is encouraged to lend his or her own fruits of study.
Moving sequentially through the text of Jansen, the first example of a difficult challenge lies in the verse of 9:30 in the Qur’an. The reference is to the delusion of Jews and Christians in imagining that God could have a son. This idea is met with an anathema – ‘God fight them’. Jansen notes that such a verse would make friendly religious dialogue difficult between Muslims and Christians, knowing that such a curse is leveled in the text of the oft-supposed friendly partner.
Later Jansen accuses Islam of dehumanization of its enemies. In verse 5:60 God is said to have turned some Jews into monkeys and pigs. This accusation is often heard among Muslims when they chant against Israel, for example. Also in 8:55 unbelievers are labeled ‘the worst of all beasts’. Indeed, it is much easier to oppose and kill those who are not given respect for their humanity.
Jansen then moves to consider the life of the prophet, referring to 33:21 in which Muhammad is declared to be an ‘excellent pattern’ for those who hope in God. He then goes on to describe how
Muhammad and his men raided their neighbours, captured these, and sold them into slavery. Mohammed and his men robbed travellers and caravans, and assassinated critics of their behaviour. According to the Muslim sources themselves, Muhammad and his men migrated from Mecca to Medina, but once there they rewarded the inhabitants of Medina by killing a large number of them. These sources themselves report how Muhammad beheaded 700 Medinese Jews, on the flimsiest of excuses.
This text is noted here with a contempt that belies the objectivity of a scholar, and each of these incidents listed is able to receive an explanation from Muslim historians. Yet Jansen’s argument is listed in this section not for its specifics, but its reference to Muhammad as an ‘excellent pattern’. Putting aside Jansen’s bias, there are aspects of Muhammad’s life that offend modern sensibilities and morality. These are a worthy field to consider linkages between Islam and violence.
Throughout his text Jansen brings up many of the oft-cited references in the Qur’an to warfare, fighting, and killing. These will be dealt with conceptually in the next section. Yet it is interesting to note here a commendation given by the prominent Azhar University in Cairo for a definition of jihad found in an English language guide to sharia law, called ‘The Reliance of the Traveler’. Jihad is often defended, correctly, as first an internal struggle against the self. Yet here Jansen notes the reference declares
Jihad means to go to war against non-Muslims (…). The scriptural basis for jihad (…) is such Koranic verses as: (1) ‘Fighting is prescribed for you’ (Koran 2:216); (2) ‘Slay them wherever you find them’ (Koran 4:89); (3) ‘Fight the idolaters utterly’ (Koran 9:36); and such hadiths as the one related by Bukhari and Muslim that the Prophet (Allah bless him and give him peace) said ‘I have been commanded to fight people until they testify that there is no god but Allah and that Muhammad is the Messenger of Allah’ (…) and the hadith reported by Muslim ‘To go forth in the morning or evening to fight in the path of Allah is better than the whole world and everything in it.’
The challenge is not necessarily in giving nuance to these verses, but the fact that as eminent and generally moderate an institution as the Azhar has endorsed this reading of jihad.
It is noteworthy that in twenty pages of text Jansen is only able to bring the above arguments to bear that do not receive immediate pause, at least in the eyes of this reviewer. Far more numerous is the evidence he draws from Islam that does indeed ask fair questions of the religion, but then shields the reader from alternate viewpoints. Again, the summation will proceed sequentially.
Jansen begins his argument by stating the proscribed penalty for apostasy in Islamic sharia law is death. He does not demonstrate this factually, but refers to the aforementioned ‘Reliance of the Traveler’ and quotes from the Egyptian judge Muhammad al-Ghazali who testified the murder of accused apostate Farag Foda was only to be classified as an ‘offense’ under sharia.
Indeed, the standard Muslim judgment against apostasy is death, and the offense against human and religious rights is valid. Yet other scholars condemn this interpretation through a variety of forms. One method is to understand that during the time of the prophet, affiliation with Islam was akin to the modern concept of citizenship in a nation. Apostasy, then, is equated with treason – a crime punishable by death in many modern nations. Given that this relationship no longer applies, apostasy in the contemporary sense does not merit death.
Another path of diffusing the absolutism of apostasy punishments is to recall Muhammad dealt with apostates from Islam during his life, and did not order universally their execution. Listing these two critiques does not infer the validity of textual and historical exegesis; this is a matter for Muslim scholars to decide. Rather, the point is simply to note their existence, even if a minority interpretation. Jansen fails to do so.
Jansen then critiques what he understands to be an undue Western sympathy for Islam, given that many have accepted the idea of religion as an expression of the Golden Rule. This is faulty, he argues, bringing 48:29 as evidence: ‘Muhammad is the messenger of Allah, those with him are violent (ashiddaa’) against unbelievers, compassionate amongst themselves.’ (Richard Bell’s translation)
The issue of translation in Islam is very tricky, and certain Muslim authored ‘interpretations’ of the Qur’an into English cover over issues which might offend Western sensibilities. Here, however, Jansen chooses a translation that makes his point but overstates his case. Ashiddaa’ can also be rendered as severe, strong, harsh, or powerful, though violent is possible. A more direct word for violent – ‘aneef – is not employed.
Even so, the double standard certainly betrays the essence of the Golden Rule, which is Jansen’s overall point. Yet he could have maintained this tension, identifying a source text which Muslim violence can summon, while also quoting from 3:159, ‘By the mercy of God, you dealt with them gently. And had you been severe and harsh-hearted, they would have ran away from about you; so pass over (their faults), and ask (God’s) forgiveness for them.’ This text refers to Muhammad’s dealings with a man who had killed many Muslims. When apprehended, he was treated as a guest, fed, and freed. Such treatment accords also with a hadith in which Muhammad declared, ‘He who is not merciful to others, will not be treated mercifully’ (Muslim 73:42).
Again, these examples do not undo the double standard given by Jansen, but they keep the reader from assuming Islam to be only as he describes. Jansen would have done well to provide them.
Jansen then moves into the controversial Qur’anic verses which either order Muslims to kill (2:191, 4:89, 4:91, 9:5) or to fight (2:10, 2:216, 4:74, 9:119) the unbelievers. He refers to the well known commentary of al-Jalalayn to confirm the violent nature of these verses. Next he heads off a predictable rebuttal by 2:256: ‘Let there be no compulsion in religion’, and 109:5: ‘You have your religion and I have mine’, by bringing in the concept of abrogation. Islam commonly understands that verses revealed later void the application of earlier revelation. He states,
All standard and authoritative Muslim commentaries on the Koran, without exception, hold these two peaceful and reassuring fragments to be repealed and ‘abrogated’ by the later ‘verse of the sword’, Koran 9:5.
Having established the permissibility of fighting and killing unbelievers, Jansen seeks to establish two pernicious modern applications: Assassination and terrorism. Concerning the former he refers to 5:44 in which a leader who does not apply the laws God provided is labelled an unbeliever. Since he is from the community of believers, he is therefore an apostate, and as such, worthy of death. Jansen refers to the ancient commentator Ibn Kathir, the modern ideologue Sayyid Qutb, and contemporary preacher Sheikh Abdel Hamid Kishk of Egypt.
As per terrorism, he references 8:60 in which Muslims are commanded to ‘terrorize’ the enemy. He then returns to the Azhar to refute the idea this was only a concept to be employed during history. The former head of the Azhar, Muhammad Sayyid Tantawi, is quoted in his commentary stating the verses apply ‘first of all [to] the pagans of Mecca’. ‘First of all’, Jansen argues, signifies the beginning of a longstanding and commanded practice.
The seed to nuance these perspectives is provided by Jansen himself. He quotes a 1968 gathering of Cairo scholars to state 8:60 is equivalent to the Roman maxim, ‘If you wish for peace, prepare for war.’ Jansen even says, ‘They may be right.’
Whether they are right or not is worthy for debate, but though Jansen proceeds to provide what he calls ‘the standard Muslim denial and defense’ (to be given in the next section), he does not return to this very basic explanation. Muhammad began his ministry by calling to a religion, but the interpretation is clearly possible that he ended it by establishing a state. Commands to fight and kill, then, can be understood as a civil action akin to modern warfare. Even modern warfare can be condemned, and the including of religion complicates the matter considerably. Nevertheless, these verses can be understood as combat, and not as inquisition.
Furthermore, many Islamic scholars state that warfare is the domain of the state alone, which must abide by numerous regulations, including the duty to keep peace with a non-Muslim who does not oppose you. Therefore, while in war it is common practice to ‘terrorize’ the enemy through ‘shock and awe’, for example, this is legitimate only through proper and regulated channels, not through individual action.
Individual or small group action is also associated with assassination attempts. Muslim scholars need to, and have, refuted the interpretation of 5:44 as a call to kill a less-than-faithful Muslim leader. First of all the clear context of the verse applies to Jewish leaders who failed to apply the Torah. Jansen notes this, but calls again upon Kishk to argue that if true for Jews how much more true for Muslims, who have been given sharia law by which to govern. Yet the bulk of Sunni Muslim history has held that a ruler is to be obeyed and Muslims must not declare each other to be infidels, unless such unbelief is clearly advertised. Such assassination attempts, they warn, threaten to return Islam to its early days when extremist groups tore the community apart. This minority reading has now returned with an equal threat. The legitimacy of interpretation is for Muslims to decide, but Jansen makes no reference to where the burden of proof lies, or even that a burden against his argument exists.
The same critique applies to his statements about abrogation. Where he declares that all commentators agree about verses of the sword abrogating verses of tolerance, it would be well to check his sources. That the verses of the sword are later in timeframe than verses of tolerance is not disputed, but the issue of abrogation is not at all clear. Some scholars find only a handful of verses in the Qur’an to be abrogated, others find large swaths of its content. It is simply not true that a uniform opinion on abrogation exists in Islam, though as a concept it is accepted. Application, however, is disputed, which is a fact Jansen does not simply ignore, he obfuscates.
Last to be considered briefly is the extension of the argument to the individual Muslim. Given that jihad is a duty to be carried out in warfare, and furthermore that since the Islamic caliphate no longer exists, it is now incumbent on smaller associations to further this cause. Jansen describes how this has happened without providing rationale why it is Islamically necessary to happen.
Still, he quotes prominent scholar Yusuf al-Qaradawi who states concerning suicide operations: ‘The one who carries out a martyrdom operation does not think of himself. He sells himself to Allah in order to buy Paradise in exchange.’ While this opinion should be studied in context, it appears Qaradawi describes the rationale of the martyrdom-seeker, and does not clearly provide license for his interpretation.
Failures in Argumentation
While sections one and two acknowledge the excellent, if insufficient, study Jansen has given to the Islamic sources, this final section highlights some of the ways in which he betrays his own effort. While only a few examples represent error, there are quite a few statements overvaluing his contribution. These will be followed by an unhealthy number of examples carrying a regrettable dismissive attitude toward opposing views.
Some of the errors are actually misleading use of rhetoric. For example Jansen notes how the fact of death for an apostate acts as a disincentive to advertise one’s disbelief in Islam. While certainly correct, he proceeds to state, ‘All statistics on the number of Muslims in a region or period [are] unreliable.’ With this broad stroke he renders meaningless the work of professional statisticians upon the assumption that Muslims everywhere hold to their faith out of fear of death. Unfortunately, Jansen offers no evidence to buttress this assumption.
Similar is the critique he levels at scholars and politicians for not understanding the essential violent nature of Islam. Were this properly comprehended, they would have prevented Muslims from ‘invading’ their countries. The word invade infers an organized plan, while overlooking the demographic fact that most Muslims in Europe, at least, originally were recruited to serve in low wage service industries to compensate for a relatively low continental population growth. Their increase in population share is a serious issue for European politicians today, but to label their presence an invasion is an ugly, if not deliberate, rhetorical error.
This may be true as well for Jansen’s denigration of the Qur’an for labeling Jews as ‘pigs’. A careful look at 5:60 shows God turned some Jews into apes and pigs, yet Jansen goes on to say:
It is clear that an enemy about whom Islam teaches that God himself calls him an ape, a donkey, a swine, a dog or just an animal, has no human rights. It is only proper to terrorize such subhuman unpersons.
This example leads well into a number of instances where Jansen establishes a point through the force of his own insistence. Is it indeed ‘clear’ that ‘it is only proper’ to mistreat the above mentioned groups? Is there no other possible recourse in all of Islam? Does logic dictate the necessity of agreement with Jansen’s pronouncements?
Elsewhere Jansen states, without reference to studies or statistics, that ‘large numbers’ of Muslims believe specific war passages in the Qur’an are meant to be generalized. Furthermore, it is ‘widely understood’ that Islam teaches to kill unbelievers if the cost is not too great for the Muslim community. Of course, ‘Muslims believe that outsiders hate Islam,’ which, ‘can only be understood as echoes of the fear and distrust Muslims themselves harbour against the adherents of other religions.’ The proof? ‘Printed testimonies from within the Muslim world abundantly illustrate that in general Muslims (with individual exceptions, one hopes) distrust and hate the West.
Jansen’s parenthesis in the previous example illustrates more than just his overstatements, it also reveals his dismissive bias. ‘One hopes’ there are Muslims who do not hate the West? With how many has he spoken, that he sees this as such an impossibility?
Further sarcasm is seen when he posits the chance that what is understood as terrorism is actually to be regarded as legitimate resistance. He says:
This needs to be researched seriously and extensively. Such research should definitely not be omitted or be neglected, no matter how enormous the task will be. It would be a huge project indeed, stretching out from Northern Nigeria to Chechnya, from the Darfur to East-Timor and Bali, and from Madrid, Amsterdam, Berlin, Paris and London to New York.
His highlight on ‘extensively’ is made moot through listing the sites of recent terrorist activity. As before, Jansen’s research is far too serious to utilize such mocking claims. He is not finished, however.
After listing the many verses which demonstrate the Qur’an’s instructions to fight and kill, Jansen exasperates, ‘Someone who is not convinced by these verses will not be convinced by more or even much more of the same.’ Furthermore, Muslims who seek to present an alternate interpretation of their faith by emphasizing verses of tolerance ‘forget to explain’ these have been abrogated.
Failing to recognize their effort as legitimate apologetics, Jansen proceeds to give what he calls the ‘standard Muslim denial and defence’ of their religion – in all its flimsiness. The first is to state that only perfect Arabic speakers can interpret the Qur’an, and that it is Western hatred which drives their criticism. The second is to dismiss the statements of clerical leaders, as these do not represent the people. The third and final technique is to ridicule Westerners who rely on the statements of misinformed young men involved in terrorism.
Jansen admits there is merit behind these defenses, but are they the only ones? Written by a non-Muslim, this text has presented numerous challenges to Jansen’s interpretations. Are none of these worthy to be found in the writings of ‘standard’ Muslim apologists? Jansen builds a straw man, and delights in knocking him down.
Much Western opinion of Islam is divided into two camps. One side finds the religion to be peaceful in essence despite misinformed extremists. The other finds the religion to be violent in essence despite the masses of ordinary Muslims who do not sufficiently understand their faith. As with most dichotomies, reality is often found in the middle.
Though Jansen places himself among the scholars of the second grouping, this text does not fault his essential questions. It is clear that there are violent source texts and examples within Islam. Yet it is also clear there is an impetus toward peace and tolerance. It is right and just for both Muslims and non-Muslims to interpret sources to determine what is the core of Islam.
The fault of Jansen lies in his failure to nuance his argument. His was not a short magazine article; it was a twenty page thesis. There was ample room to both display his conviction about a violent norm and present significant Muslim counterarguments.
His failure to do so is odd given his conviction. If Islam is essentially violent, would Jansen not wish to highlight and promote the many Muslims who seek to ground their faith on a foundation of peace? Are all who do so deceivers, wishing to delude the West to their true intentions? Can there not be validity to their wholly Islamic arguments?
This last question is the essential one. The crux of the issue is not the academic exegesis of Islam, however worthy. It is the social and cultural acceptance of interpretation that must speak to the hearts of Muslims the world over. Will violent verses be found anachronistic in the modern age, or will they define a coming renewed civilizational struggle? It is only within Islam, among Muslims, this answer can be found. Alternate viewpoints are rife, and often in competition.
Jansen may be able to demonstrate the weight of evidence – both in historic sharia understanding and in popular consciousness – lies with violent and jihadist Islam. What he will be unable to accomplish is to demonstrate this interpretation is correct. Islam is first and foremost a religion, and religions, while possessing vast storehouses of conserving tradition, are also adept at drawing from these storehouses to adapt according to the realities of the age. It is as wrong to state that Islam will adapt peacefully as it is to assert it will not. That adaptation is possible, however, is a demonstrated historical fact.
Islam, particularly in its Arab context, is before a potentially great adaptation from Morocco to the Gulf, as the masses demonstrate a desire to shed their current leadership. Whether or not the Arab Spring represents conflict or cooperation with the West is an open question. Prominent among the determining factors will be the emerging interpretation of Islam. Jansen is right to ask his questions; the answers are not nearly as fated as he assumes.
The new realities of Egypt, buttressed by its new constitution, place religion front and center in politics and policy. This means a new and developed importance to all her religious leaders.
The newest of these is the mufti, elected for the first time by the council of senior scholars in the Azhar. The Azhar, of course, holds prominence among all sheikhs, first in history, now in law. The institution must be consulted on all matters which touch the Islamic sharia.
But the mufti also is influential. He heads Dar al-Ifta’, responsible for issuing hundreds of religious rulings each day, as Muslims inquire. These range from the mundane to the controversial; in the past, even the presidential.
As could be anticipated, God, the position was contested. A prominent Muslim Brother was a nominee, a less well-known Brother finished second. Not much is known widely about the winner, though he is suspected to be generally non-political. He may not be able to remain so much longer.
Give him wisdom, God. But give even greater wisdom to Egypt. Do you desire those who speak in your name to influence and possibly determine the path of the state? Will this bring the best scholars forward, or corrupt those who dare advance?
In light of his appointment, bless him and all others who serve you through their religious traditions. Political or otherwise, they help shape the worldview and ethics of many in Egypt.
For the pope of the Coptic Orthodox Church, guide his stewardship of Egypt’s Christians. Give him wisdom to spiritually guide his community amid the many challenges Egypt faces. Give him discernment for when his guidance must also be political – or if it should never be. May he be a man of peace and unity; bless him especially among his family of bishops. Help them to encourage their flock toward humility, grace, and love.
For Egyptian Christian priests and pastors of other denominations, encourage them in their particulars while remaining organic with the whole. May they honor and respect the Orthodox, even as they present alternatives. May their interactions mutually benefit the spirituality of all communities.
For the Grand Sheikh of al-Azhar, the Grand Mufti, and local imams within their oversight, grant them understanding of the changing nature of Egypt. May they lead their faithful in piety and prayer. May they study their sources to encourage right conduct toward state and society. May they present a vision of Islam that corresponds with your desire. Bless them and aid them in enriching the fabric of Muslim and interreligious relations.
For the Supreme Guide of the Muslim Brotherhood and Salafi sheikhs that have emerged politically, honor their insistence that values of religion belong in the public square. Guide them in their interactions with those who define this differently, that consensus and respect might result. Bless their efforts to encourage Egyptians to be upright, faithful, and God-fearing. May they nurture a renaissance that blesses all.
God, may all the above know your will for themselves and their communities. Endow Egypt with the virtue of faith; spare her the vice of fanaticism.
Help Egyptians to know the difference, to know you, and to know what you require of them – in this world and the next.
From EgyptSource, arguing this is the best bet for the opposition, where dialogue should become shura (official consultation):
On the first point, the prevailing opinion – which may even be the consensus – is that Shura is mandatory. Hence, in Islam, the ruler must resort to Shura to obtain the opinion of experts, politicians, and scholars. National dialogue, in fact, is a form of Shura. The second point, and this is the crux of the matter, revolves around the results of the Shura — whether this opinion is binding on the ruler or merely “a consultative opinion” (in contemporary jargon) or “a guiding opinion” (in the vocabulary of Islamic jurisprudence). This issue has many nuances, and this article lacks room to address all of them, but the prevailing opinion among jurists and Islamic scholars is that Shura is binding on the ruler. This means that the opinion resulting from consultation or dialogue is a binding opinion on the ruler, and he must enact it regardless of whether the opinion was the consensus or majority opinion of those consulted.
Curious to see if the opposition sees it this way, as an opportunity. Curious further to see if Morsi does, as an obligation.
There is no way around political discourse in Egypt involving Islam. The question for secularists is how much does even useful recourse to Islam establish the playing ground on Islamist footing?
The proposed Egyptian constitution offers something to everyone, and its supporters know how to address the audience.
Article 3 gives Christians and Jews the right to govern their communities according to the internal rules of their religion. Articles 31-80 give liberally-minded citizens assurances on a litany of basic rights, including expression, belief, education, and even playing sports.
Less heard in the West, however, is the local message: articles designed for conservative Salafi Muslims may undermine every other guarantee.
‘This constitution has restrictions [on rights and freedoms] that have never been included in any Egyptian constitution before,’ said Sheikh Yasser al-Burhami, Egypt’s leading Salafi and founder of the Salafi Call, on a YouTube video attempting to convince his community to vote for a document many of them find not restrictive enough.
Ibrahim Eid is another leading spokesman for those who seek to return Egypt to the ancestral ways and beliefs of Arabia. An ophthalmologist and media coordinator for Students of Sharia, a Salafi association, he told Lapido: ‘There are two aspects to this constitution: that which designs a political system, and that which legitimizes it. I reject its legitimacy completely’.
Sovereignty belongs to God alone, he says.
Article 5 is therefore an anathema. It states: ‘Sovereignty is for the people alone and they are the source of authority. The people shall exercise and protect this sovereignty, and safeguard national unity in the manner specified in the Constitution.’
‘Is it reasonable to justify God’s law by a constitution, or to submit it to a referendum? Not at all!’ he said.
‘But we agree to its political necessity for the sake of the stability of the nation.
‘Let’s move through this crisis, elect a new parliament, and then the first thing they will do is change the defective articles.’
Bishop Mouneer Anis of Egypt’s Episcopal (Anglican) Church finds defective articles as well, but of the opposite kind.
‘This constitution does not lead to social cohesion, but to division,’ he told Lapido Media, as preliminary results of the first round referendum suggested 43 per cent of the population reject it. ‘It does not ensure the freedom of the minority to the extent Egypt was expecting.
‘But it ensures the rule of the majority and has many questionable, vague expressions.’
These are the very expressions Burhami celebrates, witnessed chiefly in the dispute over Article 2, defining the identity of the Egyptian state.
In the previous constitution, Article 2 declared the ‘principles’ of Sharia law to be the primary source of legislation. Egypt’s High Constitutional Court consistently interpreted the word ‘principles’ in a general fashion, avoiding direct reference to specific Islamic laws.
Liberal members of the 100-person Islamist-dominated committee writing the constitution were able to fend off Salafi demands to remove the word ‘principles’ and force legislation toward Sharia alone.
But to satisfy the Salafis, the committee added Article 219, to interpret ‘principles’ in accordance with traditional Islamic jurisprudence. Furthermore, Article 4 assigns an unelected body of Islamic scholars the right of consultation on legislation.
Burhami’s chief pride, however, is in Article 81, concluding the extended section on rights and freedoms. It seeks an elusive compromise.
‘No law that regulates the practice of the rights and freedoms shall include what would constrain their essence,’ reads the text. But what follows defines this essence:
‘Such rights and freedoms shall be practised in a manner not conflicting with the principles pertaining to state and society included in Part One of this constitution.’
Part One however includes Article 2 which is defined by Article 219, subjecting all freedom to Islamic Sharia.
‘What is the problem with being an Islamic state? Egypt is Islamic and there is nothing else to be said,’ the Muslim Brotherhood’s Gamal Nassar tells Lapido.
Nassar is a founding member of the Brotherhood’s Freedom and Justice Party. He believes the discussion of these details ignores the agreement on 90 percent of the constitution.
‘No one, even among the liberals, opposes the Sharia. This is at heart a political struggle,’ he said.
‘All freedoms must be regulated and not go against the nature of Egyptian society, which is Muslim.’
Nassar sees the nature of the politics in the behaviour of the church, which resigned from the constitution writing committee.
He accuses church representatives of negotiating the agreement of all articles, including Article 219, and then withdrawing suddenly to cause controversy and discredit the committee’s work.
Revd. Safwat el-Baiady, president of the Protestant Churches of Egypt and one of these official representatives, disagrees – and strongly. He sees a different type of politics at play.
‘This article  was added late and not discussed in any sub-committee,’ he told Lapido Media. ‘Because of its controversy it was postponed until the end, and dealt with only in the concluding consensus committee.’
The problem with this he said was that this consensus committee was no consensus at all, but a small number of members handpicked by the assembly head. It included a Christian, but no official members of the church.
Church representatives, and liberal Muslim members, resigned in protest en masse only once it dawned on them that Article 219 and other controversial aspects were to be presented as if it were the will of the entire body – which was not the case.
A constitution is ideally built on consensus, but it is fleshed out though law. Egypt’s constitution, if it passes, gives something to everyone.
The gift to Salafis, offered freely by the Muslim Brotherhood, is an open door to Sharia law and the conformity of legislation to it.
Egypt’s future freedoms hinge on the make-up of the next parliament, tasked with the contentious business of interpretation.
Note: The 2011 Egyptian parliament, dissolved by court order, was led by the Muslim Brotherhood-led Democratic Alliance, claiming 45 per cent of 498 seats. The Islamist Bloc, led by the Salafi Nour Party, finished second with a quarter (25 per cent) of seats. Two liberal parties received roughly 7 per cent each. Two Copts were elected to parliament, and of the ten members appointed by the then-ruling military council, five were Copts.
Article 229 of the proposed constitution declares procedures for electing the new parliament will begin no less than 60 days after it is ratified, possibly this weekend, following the second referendum vote.
Addressing the nation in a televised interview Thursday, President Mohamed Morsi welcomed the sudden completion of Egypt’s draft constitution after months of gridlock.
Amid public outcry against his decision last week to grant himself immunity from judicial review, Morsi praised the constitution’s speedy completion as a necessary step in order to end the nation’s transition to democracy and reestablish separate executive, legislative, and judicial authority.
He also dismissed questions about the legitimacy of the document, especially given the withdrawal of Christian and many liberal members of the assembly drafting it.
“The withdrawal of the church from the constitutional assembly is nothing to worry about,” Morsi said. “It’s important to me that they be part of it, but not to worry.”
The article features the voice of Rev. Safwat el-Baiady, president of the Protestant Churches of Egypt, one of the church’s official representatives who withdrew from the constitutional assembly. His perspective is given on the more controversial articles, including the role of sharia law, the Azhar, and society in determining both law and social morality.
Please click here to finish reading at Christianity Today.