Basic freedoms in a fractured legal culture: Egypt and the case of Nasr Hamid Abu Zayd

Middle East Journal

Volumn 52, Issue 3, 1998, Pages 401-414

  Sfeir, George N ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0011805653     PISSN: 00263141     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (61)

1. W. Cole Durham, Jr., "The Relationship of Constitution and Tradition," Southern California Law Review 53, no. 2 (January 1980), p. 645.
2. Owen Chadwick, The Secularization of the European Mind in the 19th Century (Cambridge: Cambridge University Press, 1975), p. 27.
3. His latest major work is Al-Nas, al-Sulta, al-Haqiqa: Al-Fikr al-Dini Bayn Iradat al-Ma'rifa wa Iradat al-Haymana (The Text, the Authority, the Truth: Religious Thought Between the Desire for Knowledge and the Desire for Hegemony) (Beirut and Casablanca: Al-Markaz al-Thaqafi al-'Arabi, 1995).
4. See Muhammad al-Dijwi, Al-Ahwal al-Shakhsiyya li al-Misriyyin al-Muslimin (Personal Status of Egyptian Muslims) (Cairo: Dar al-Nashr li al-Jami'at al-Misriyya, 1969), pp. 33-34.
5. Egyptian Code of Civil Procedure, Law No. 13 of 1968, Article 3, in Al-Jarida al-Rasmiyya (Cairo), no. 19, 9 May 1968.
6. Text in Al-Muhamat (Cairo), vol. 74 (January-April 1995), pp. 160-79.
7. Claude Cahen and M. Talbi, "Hisba," Encyclopedia of Islam, new ed., vol. 3 (Liden: E.J. Brill, 1971), pp. 485-89.
8. Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), pp. 27-28.
9. Saudi Royal Decree M/37 of 26/10/1400 AH, "Nizam Hay'at al-Amr bi al-Ma'ruf wa al-Nahiy 'an al-Munkar" (The Organization for Enjoining the Good and Refraining from Evil). This body is responsible for the "morality" police, whose duties, according to article 9 of the decree, are to "guide, advise, and order people to abide by the religious duties provided in the Shari'a, and to refrain from committing any of the acts prohibited by Shari'a." Text in Um al-Qura (Riyadh), no. 2853, 23 January 1981.
10. Egyptian Code of Civil Procedure, Law No. 13 of 1968, Article 3, in Al-Jarida al-Rasmiyya, no. 19 of 1968.
11. Law No. 462 of 1955, in Al-Waqai' al-Misriyya, no. 73 bis, 24 September 1995. For a historical background to the jurisdiction of religious tribunals in matters of personal status and domestic relations, see George N. Sfeir, "The Abolition of Confessional Jurisdiction in Egypt: The Non-Muslim Courts," The Middle East Journal 10, no. 3 (Summer 1956), p. 248.
12. Law No. 462 of 1955, Article 5. Quotation translated by author.
13. Decree Law No. 78 of 1931, in Al-Waqai' al-Misriyya, no. 53, 20 May 1931.
14. Ibid
15. "Mahkamat Isti'naf al-Qahira al-Da'ira (14) Ahwal Nafsiyya" (Decision of the Cairo Court of Appeals, Department 14, Domestic Relations), Al-Muhamat (Cairo) 74 (January-April 1995), pp. 160-79. Quotation translated by author.
16. "You are the best Community brought forth for mankind, enjoining that which is good and fair and prohibiting that which is evil and forbidden, for you believe in God. . ." The Holy Quran, vol. 1, in Arabic with English translations by Abdullah Yusuf Ali (New York: Hafner Publishing Company, 1946), p. 151. The above excerpt was translated from the Arabic by the author.
17. 'Abd al-Wahab Khallaf, 'Ilm al-Fiqh (The Science of Jurisprudence) (Cairo: Matba'at al-Nasr, 1972), p. 210.
18. Ibid.
19. The current Egyptian constitution was adopted in 1971 during President Jamal 'Abd al-Nasir's regime. In 1980, Egyptian President Anwar al-Sadat's regime introduced certain amendments, the most significant being, in Article 5, the right of having a multiplicity of political parties, and the change in the wording of Article 2 from Islamic law as a source of legislation to Islamic law as the source of legislation. For the text in English, see Albert T. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World, vol. 6 (New York: Oceana Publications, 1994); for the text in Arabic, see Yusuf Qurma Khuri, Al-Dasatirfi al-'Alam al-'Arabi (Constitutions in the Arab World) (Beirut: Dar al-Umara, 1989), pp. 591-601.
20. The current Egyptian constitution was adopted in 1971 during President Jamal 'Abd al-Nasir's regime. In 1980, Egyptian President Anwar al-Sadat's regime introduced certain amendments, the most significant being, in Article 5, the right of having a multiplicity of political parties, and the change in the wording of Article 2 from Islamic law as a source of legislation to Islamic law as the source of legislation. For the text in English, see Albert T. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World, vol. 6 (New York: Oceana Publications, 1994); for the text in Arabic, see Yusuf Qurma Khuri, Al-Dasatirfi al-'Alam al-'Arabi (Constitutions in the Arab World) (Beirut: Dar al-Umara, 1989), pp. 591-601.
21. Walid Thabit Ghabriyal, "Himayat al-Hurriya fi Muwajahat al-Tashri': Dirasa fi Dusturiyat al-Tashri'at al-Muqayyida li al-Hurriyat" (Protecting Freedom Against Legislation: A Study of the Constitutionality of Legislation Restricting Freedoms), Al-Muhamat 70, (March-April, 1990), pp. 101, 108.
22. Law No. 93 of 1995, amending the 1937 Penal Code, in Al-Jarida al-Rasmiyya, no. 21 bis, 28 May 1995.
23. Law No. 95 of 1996, in Al-Jarida al-Rasmiyya, no. 25 bis, 30 June 1996.
24. See Sydney Kentridge, "Freedom of Speech: Is It the Primary Right?" International and Comparative Law Quarterly 45, (April 1996), p. 253.
25. In the United States, for example, the First Amendment to the Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . ." Text in Albert T. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World, vol. 22 (Dobbs Ferry, NY: Oceana Publications, Inc., 1996).
26. The more moderate Islamist thinking calls for a single constitutional-Islamic concept of legitimacy that would merge positive legitimacy (according to the constitution) with Islamic legitimacy (according to the shari'a), since the constitution provides that shari'a is the source of legislation. See Tawfiq al-Shawi, Siyadat al-Shari'a al-Islamiyya fi Misr (The Sovereignty of Islamic Law in Egypt) (Cairo: Al-Zahra' li al-I'lam al-'Arabi, 1987), p. 22.
27. 'Abd al-Razzaq al-Sanhuri, Al-Wasit fi Shark al-Qanun al-Madani at-Jadid (The Intermediate Explanation of the New Civil Code) (Cairo: Dar al-Nashr li al-Jami'at al-Misriyya, 1952), vol. 1, pp. 26-27. Quotation translated by author.
28. In countries following the civil law system, laws are divided into two categories: private and public. The former deals with individual relations, the latter with relations between individuals and the government (e.g., criminal law).
29. Law No. 103 of 1961 in Al-Jarida al-Rasmiyya, no. 152, 10 July 1961, describes the function of the Council of Research as limited to research and study of what is published about Islam at home and abroad in order to benefit from what is useful, and correct what is erroneous.
30. See 'Abdallah Khalil, Al-Qawanin al-Muqayida li al-Huquq al-Mudaniyya wa al-Siyasiyya fi al-Tashri' al-Misri (Laws Restricting Civil and Political Rights in Egyptian Legislation) (Cairo: Al-Munazama al-Misriyya li Huquq al-Insan, 1993). The author cites, in pages 149-52, the authors and titles of no less than 12 books banned by the council in 1992 alone, the year the book was written. They include books authored by judge Muhammad Sa'id al-'Ashmawi, 'Adil Hammuda, Sana' al-Masri, Ibrahim 'Isa, and 'Abdallah Kamal. The last is a journalist with the magazine Ruz al-Yusuf, whose book Al-Tahlil al-Nafsi li al-Anhiya' (Psychoanalysis of the Prophets) (Cairo: Dar al-Khayal li al-Tiba'a wa al-Nashr, 1996) was removed from the market with the help of the Egyptian authorities, according to Al-Hayat (London), 13 July 1996.
31. See 'Abdallah Khalil, Al-Qawanin al-Muqayida li al-Huquq al-Mudaniyya wa al-Siyasiyya fi al-Tashri' al-Misri (Laws Restricting Civil and Political Rights in Egyptian Legislation) (Cairo: Al-Munazama al-Misriyya li Huquq al-Insan, 1993). The author cites, in pages 149-52, the authors and titles of no less than 12 books banned by the council in 1992 alone, the year the book was written. They include books authored by judge Muhammad Sa'id al-'Ashmawi, 'Adil Hammuda, Sana' al-Masri, Ibrahim 'Isa, and 'Abdallah Kamal. The last is a journalist with the magazine Ruz al-Yusuf, whose book Al-Tahlil al-Nafsi li al-Anhiya' (Psychoanalysis of the Prophets) (Cairo: Dar al-Khayal li al-Tiba'a wa al-Nashr, 1996) was removed from the market with the help of the Egyptian authorities, according to Al-Hayat (London), 13 July 1996.
32. It is a situation out of medieval Europe. When the division between ecclesiastical and secular jurisdictions took place, heresy was left to the former as a spiritual offense punishable by anathema, although in the twelfth/thirteenth century it became also a criminal offense punishable by death. See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), p. 186.
33. Abu Zayd. Al-Nas, al-Sulta, al-Haqiqa: Al-Fikr al-Dini Bayn Iradat al Ma'rifa wa Iradat al-Haymana.
34. Ibid., p. 13 Quotation translated by author.
35. Muhammad Abu Zahra, Al-Jarima wa al-'Uquba fi al-Fiqh al-Islami (Crime and Punishment in Islamic Jurisprudence) (Cairo: Dar al-Fikr al-'Arabi, 1966), vol. 2, pp. 192-204. Quotation translated by author.
36. Article 3, section 3, in Blaustein and Flanz, eds., Constitutions of the Countries of the World.
37. See Lawrence Meir Friedman, A History of American Law (New York: Simon and Schuster, 1973), p. 256.
38. Muhammad 'Amara, "Ru'ya Islamiyya fi Ma'ani al-Radda 'An al-Din wa 'Uqubatiha al-Shar'iyya" (An Islamic View of the Meaning of Apostasy and its Legal Punishment), Al-Hayat, 1 October 1996. Quotation translated by author.
39. "Mahkamat Isti'naf al-Qahira al-Da'ira (14) Ahwal Nafsiyya," Al-Muhamat, pp. 160-79. Quotation translated by author.
40. (Cairo: Sina Publishers, 1992).
41. (Cairo: Sina Publishers, 1991).
42. Abu Zayd, Naqd al-Khitab al-Dini, pp. 93-94. Quotation translated by author.
43. Ibid., p. 205. Quotation translated by author.
44. Abu Zayd, Ihdar al-Siyaq fi Ta'wilat al-Khitab al-Dini, p. 37. Quotation translated by author.
45. Abu Zayd, Naqd al-Khitab al-Dini, pp. 105, 222. Quotation translated by author.
46. Abu Zayd, Al-Nas, al-Sulta, al-Haqiqa: Al-Fikr al-Dini Bayn Iradat al-Ma'rifa wa Iradat al-Haymana, p. 133. Quotation translated by author.
47. Ibid.
48. Ibid., pp. 132-34.
49. Ibid., pp. 135-39.
50. Ibid. In this, Abu Zayd reflects the historical view of all classical law as made up of ad hoc rulings. As Oswald Spengler has put it, "classical law is not deliberately invested with validity for the future, but more or less recreated again and again as empirical rulings ad hoc." Oswald Spengler, The Decline of the West (New York: Oxford University Press, 1991 ed.), p. 63.
51. Ibid. In this, Abu Zayd reflects the historical view of all classical law as made up of ad hoc rulings. As Oswald Spengler has put it, "classical law is not deliberately invested with validity for the future, but more or less recreated again and again as empirical rulings ad hoc." Oswald Spengler, The Decline of the West (New York: Oxford University Press, 1991 ed.), p. 63.
52. Abu Zayd, Al-Nas, al-Sulta, al-Haqiqa: Al-Fikr al-Dini Bayn Iradat al-Ma'rifa wa Iradat al-Haymana, pp. 140-41. Quotation translated by author.
53. Ibid.
54. It is the medieval doctrine of the "double truth" all over again, to get out of the dilemma of how the independence of the religious consciousness from the scientific consciousness and vice-versa be protected and at the same time bound up into a unified consciousness of truth. See Leo Strauss, Philosophy and Law: Essays Toward the Understanding of Maimonides and his Predecessors (Berlin: Schoken Verlag, 1935).
55. Law No. 3 of 1996, in Al-Jarida al-Rasmiyya, no. 4 bis, 29 January 1996.
56. Ibid., Article 1.
57. Ibid., Articles 3, 4, 6.
58. Law No. 25 of 1929, Article 6, in Al-Waqai' al-Misriyya, no. 37, 25 March 1929.
59. See Ashraf Mustafa Kamal, Qawanin al-Ahwal al-Shakhsiyya (Laws of Personal Status) (Cairo: The Lawyers Association, 1990), p. 92, who cites the case of a husband who converts from Christianity to Islam.
60. Text in Egypt, The People's Assembly, Nashrat Majlis al-Sha'b (The People's Assembly Bulletin), 7th Legislative Session, issue no. 4, 9 February 1996.
61. Ibid. Quotation translated by author.