In a public lecture on Thursday, Khaled Fahmy, the newly appointed head of the American University in Cairo history department, explained the complex relationship of religious and secular legal practice in 19th century Egypt. Feeding off that discussion, he argued Shari'a law in contemporary society is implemented in limited ways.
The common understanding Islamists have today about how to implement Shari'a may not be the most optimal approach, according to the scholar, whose work "All the Pasha's Men: Mehmed Ali, His Army and the Making of Modern Egypt" is a seminal piece in modern Egyptian literature.
“History shows us much more imaginative ways to implement Shari'a,” he told Al-Masry Al-Youm.
Addressing a packed audience in Oriental Hall at AUC's downtown campus, Fahmy explained how Shari'a law worked alongside secular law in 19th century Ottoman Egypt. He noted that back then there was a qadi maglis (Judges Council), which was based on Islamic Shari'a, and another secular council known as maglis (council).
“What we see in the 19th century is a two pronged legal system in which Shari'a was coupled with siyasa, and what is remarkable about it is the degree to which its two sides worked together,” Fahmy said. “While the qadi (Islamic judge) was informed by fiqh (Islamic legislation) in his court…the councils implemented qanuns (laws) that had been passed in Egypt since the late 1820s.”
The title of the lecture, “Siyasa and Shari'a: The Politics of Implementing Islamic Law in Modern Egypt,” was specifically chosen in order to “play on the ambiguity of the word ‘politics’,” Fahmy told Al-Masry Al-Youm. The professor said the word "siyasa", which is now translated as “politics”, was a term used during the Ottoman 18th and 19th centuries to refer to a system of extra-religious, legal investigations which complemented Shari'a rulings.
"Throughout Islamic history not only do we have countless examples of Shari‘a being coupled with siyasa; this coupling was never thought of as an infringement on Shari‘a or an acknowledgment that it was incomplete. Siyasa was always considered to be part of Shari‘a," Fahmy pointed out.
Fahmy's research on archived courts records in 19th century Egypt has changed recent understandings of the legal system in Egypt. The current understanding of Shari'a implementation is largely limited to the view that it must dominate the legal framework under question, Fahmy said.
"Codification is quintessentially modern," he argued. "And the sure way to kill Shari'a is codification."
Contrary to common perceptions, Fahmy views the 19th century implementation of secularization into Islamic law as a feasible and culturally appropriate contemporary alternative.
"This secularization was not the result of a handful of Egyptian intellectuals being mesmerized by the West…Rather, this secularization was a result of one of the most innovative and successful attempts at implementing Shari’a by supplementing it with siyasa that any Islamic state has ever witnessed."