UTCP Lecture on Understanding Islam #7 "Islamic Law, Human Rights and the State: The Case of Contemporary Egypt"

6 November, 2008 ISAHAYA Yoichi, Understanding Islam

On October 22, 2008 a seventh lecture on understanding Islam was held. In this time, Prof. Clark Lombardi (University of Washington) talked with the title of “Islamic Law, Human Rights and the State: The Case of Contemporary Egypt”.


Prof. Lombardi’s work has focused on the trend towards re-Islamization of state of legal systems, and in particular on the rise of what one might call “Islamic Review". In studying this trend, he has focused on the following questions: What drives the new push towards Islamic review. How do Courts measure the Islamic-ness of state law? Has Islamic review had a big impact on the legal systems and lives of citizens in Islamizing states?

In his lecture, Prof. Lombardi pointed out that this last question is particularly interesting. Liberal and progressive groups around the world argued that the practice of Islamic review will almost surely have a negative impact on the economics of their country and on the enjoyment of human rights. In Egypt, however, the situation did not turn in this direction. Islamic review has, in fact, had very little impact on judges willingness or ability to protect human rights. More interesting still, when the Court has struck down laws as un-Islamic, these laws have generally been illiberal laws that liberals wanted struck down away. If anything, then, Islamization has had a positive impact on the economics of the country and the enjoyment of human rights.

Why did Islamization lead to such surprising results? Prof. Lombardi first explained the classical interpretation of Islamic law, and then referred to the new method of interpreting it which appeared in the modern era.
In the classical period, Islamic laws were derived by specially trained scholars using special methods. For example, ijtihad was a process of reasoning from direct analysis of scriptures―the Qur’an and the hadith literature, ijtihad. Most scholars used a different method—a method of reasoning from precedents that somebody else had already reached by ijtihad. In the nineteenth century, however, new classes of scholars appeared, arguing that Islamic law should be interpreted using new methods of interpreting Islamic law. These new methods, appearing during a period of secularization and modernization, were very different from the classical methods. In Egypt, two new methods were particularly important—those of Rashid Rida and of ‘Abd-al Razzaq al-Sanhuri. Rida asserted that the process of developing an interpretation of Islamic law should begin with search for rules in the two classical Islamic scriptures, yet did not limit the interpretation to classical jurists. Furthermore, he thought interpreters should reason out the proper rule through utilitarian reasoning in the many areas that was not governed by a definitive rule. Sanhuri, on the other hand, implicitly rejected the idea that any Muslim had the ability to understand ancient and obscure scriptural texts. He thus argued that modern Muslims should derive Islamic laws by inducing laws from the mass of competing interpretations of Islamic law that scholars in the past had already proposed. Using this process, scholars would primarily derive general principles of law. To understand how to apply these principles in modern times, Muslims should reason rationally trying to develop a rule that would be likely to promote human welfare in the modern age.

In the 1960s and 1970s Islamist factions―and primarily the urban Islamist faction who favored these modern methods of legal interpretation―grew increasingly powerful. When Egypt in 1980 committed itself to Islamizing its laws, it asked judges on the Supreme Constitutional Court of Egypt to review laws for consistency with Shari`a. The members of this Court were not classical jurists who favored classical methods of interpretation, but were rather judges who had graduated from Secular Egyptian law schools and, in some cases, had further degrees from Western institutions. They preferred to interpret Islamic law based on the methods of Rida and Sanhuri, and they aimed to realize “justice” and/or social utility through these methods. In short, Islamic review was vested in the hands of a judiciary inclined to use modernist methods and is committed to a liberal understanding of public good. Prof. Lombardi closed his lecture saying that one who understands the history of Islam, the evolution of Islamic legal theory in modern Egypt and, perhaps most important, the nature of Egyptian judiciary should be surprised by this development.

After Prof. Lombardi’s talk, Prof. Haneda, the chair of this lecture, made two comments on Prof. Lombardi’s talk. First, although it is evident that Muslims understanding of Islamic law has changed, in the modern period, many scholars from Japan and Europe are trained primarily in classical theories of Islamic law. One might question whether the stress on classical Islamic law is wise. Second, classical Islamic studies are to become more useful in understanding the modern world, we must acquire the new method and vision as Prof. Lombardi showed.

In the time of discussion, there were a wide range of questions. One dealt with the legal interpretation concerning divorce matters—a subject that Professor Lombardi had used as an example. Another question asked how we should understand the case of Iran, where people have embraced the Shi'a Islamic faith, which different from the Sunni faith to which most Egyptians adhere. Did Shi`a Islamic legal reasoning go through a similar period of creativity and change in the modern era? If so, did it affect the revolution that was led by professional Islamic jurists? Other questions about classical turn and Islamic finance also came up, allowing our understanding of Islamic law to become more profound.


Reported by Yoichi Isahaya

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