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Muhammad Saʿid al-ʿAshmawi and the Application of the Shariʿa in Egypt

  • William E. Shepard (a1)

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The rise of a vigorous and sometimes violent Islamist movement in Egypt over the last quarter century has attracted considerable attention from the media and scholars, as have the efforts to control it at the political and police level. Less attention has been given to those who have responded to this challenge at the level of ideological debate and in their writings sought to defend the essentials of the existing system on Islamic grounds. One of these is a prominent judge, Muhammad Saʿid al-ʿAshmawi. The purpose of this article is to present and examine some of his views and arguments.

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Author's note: I express my appreciation to Judge al-ʿAshmawi for the opportunity to interview him in Cairo in 1992 and his willingness to respond to my inquiries by letter and telephone since then, and also to the editor of IJMES and the anonymous readers whose comments have helped me to improve this article.

1 His name is normally transliterated al-Ashmawy, but I have chosen to use the more scholarly transliteration in this article. In preparing this article, I was able to consult the following works of his: Uṣūl al-sharīʿa (Cairo: Madbouli, 1983/1403; Beirut: Dar al-Iqraʾ, 1983/1403; 1st ed. published 1979; an English translation under the title The Roots of Islamic Law is forthcoming from SUNY Press); al-Sharīʿa al-islāmiyya wa al-qānūn al-miṣrī (dirāsa muqārana) (The Islamic Shariʿa and Egyptian Law: A Comparative Study) (Cairo: Madbouli, 1986); al-Ribā wa al-fāʾida fī al-islām (Usury and Interest in Islam) (Cairo: Sina li-l-Nashr, 1988); Maʿālim al-islām (Milestones of Islam) (Cairo: Sina li-l-Nashr, 1989); al-islām al-siyāsī (Political Islam), 3rd ed. (Cairo: Sina li-l-Nashr, 1992; 1st ed. 1986?) (there is a French translation of selections of this work under the title L'Islamisme contre I'Islam and an English translation from the French under the title Islam and the Political Order [Washington: Council for Research in Values and Philosophy, 1994] but I was unable to consult these or the forthcoming translation of Uṣūl al-sharīʿa); al-Khilāfa al-islāmiyya (The Islamic Caliphate) (Cairo: Sina li-l-Nashr, 1990); “Militant Doctrine in Islam” (in English, mimeographed text of a lecture delivered four times in 1988–89); Islamic Government”, Middle East Review XVIII/3 (Spring 1986): 713; “Islamic Law and Human Rights” (undated mimeographed text, in English). I was also able to interview Judge al-ʿAshmawi twice in March–April of 1992 and once by telephone from New Zealand in 1995. He has published other works both earlier and later than these, which I have not had the opportunity to consult, but these contain the essentials of his position that are relevant to this article.

2 In this article I am primarily concerned with presenting al-ʿAshmawi's ideas and have given relatively little attention to social or material factors. These would, of course, be essential for a complete study, but the aims of this article are more modest. Ideas alone do not determine social developments, but I do not believe that ideas are purely dependent factors or epiphenomena. There is, therefore, a place for the study of ideas as ideas, and this article attempts to fill that place in relation to its subject. In this, I see this article as standing in the tradition of writing such as Hourani, Albert, Arabic Thought in the Liberal Age (London: Oxford University Press, 1962, 1967, 1970, and 1983; the 1970 edition is the one available to me). We may note also that Binder, Leonard, in those chapters of Islamic Liberalism (Chicago: University of Chicago Press, 1988) that deal with particular Muslim figures such as ʿAli ʿAbd al-Raziq and Sayyid Qutb, also deals with them in terms of their ideas. Of course, in a book-length work it is possible also to give some attention to the social, political, and economic contexts. In this short article I limit myself mostly to the ideas, leaving the rest to another occasion or another scholar. Another limitation is that I do not attempt to trace the development of Judge al-ʿAshmawi's ideas, but rather to present them as they stood at the time I did my main research as a coherent system of ideas which may be compared with other systems. In fact, I have not noticed significant changes between the earlier and later works that I used.

3 A good survey of the institutional aspects of this is given by Crecelius, Daniel in “The Course of Secularization in Modern Egypt”, in Islam and Development, ed. Esposito, J. (Syracuse, N.Y.: Syracuse University Press, 1980), 4970. For Muhamad ʿAbduh and other thinkers of his time, see Hourani, Arabic Thought. This is still the best and most convenient source for many of the writers relevant to this article up to the 1940s. Enayat, Hamid, Modern Islamic Political Thought (London and Basingstoke: Macmillan, 1982) is another important survey which carries the account further.

4 See below, pp. 42, 51. My copy of the book (Beirut: Dar al-Maktabat al-Hayah, n.d.), purchased in Egypt about 1985, to the best of my memory, includes a criticism and commentary by one Dr. Mamduh Haqqi.

5 On ʿAli ʿAbd al-Raziq and his critics, see Hourani, , Arabic Thought, 183–92 and Binder, , Islamic Liberalism, chap. 4, among others.

6 Such as Taha Husayn, regarding whom see Hourani, , Arabic Thought, chap. XII, among other sources. Two other important studies of these intellectuals are Safran, Nadav, Egypt in Search of Political Community (Cambridge: Harvard University Press, 1961) and Smith, Charles D., Islam and the Search for Social Order in Modern Egypt, a Biography of Muhammad Husayn Haykal (Albany: State University of New York Press, 1983).

7 See Mitchell, R. P., The Society of the Muslim Brothers (London: Oxford University Press, 1969) for the most important study of the Brothers up to their suppression in 1954.

8 On this, see Safran, Egypt in Search and Smith, Islam and the Search for Social Order, and Smith, Charles D., “The ‘Crisis of Orientation’: The Shift of Egyptian Intellectuals to Islamic Subjects in the 1930's”, International Journal of Middle East Studies 4 (1973): 382410.

9 For the Sadat period and a bit later, see inter alia Sivan, Emmanuel, Radical Islam: Medieval Theology and Modern Politics (New Haven Conn.: Yale University Press, 1985) and Kepel, Gilles, Muslim Extremism in Egypt: The Prophet and the Pharaoh, trans. Rothschild, J. (Berkeley and Los Angeles: University of California Press, 1986).

10 An example is the case of Nasr Hamid Abu Zayd, an academic accused of apostasy. His marriage was annulled in June 1995 as a result of a suit brought by Islamists (Reuters, 26 September 1995). As of this writing (October 1995), the ruling was under appeal.

11 For example, it is reported that the government prevented al-Ghazali, Sheikh Muhammad from delivering the khuṭba at ʿId al-Adha prayers in 1994 (Tehran Times, 26 05 1994) and that Islamist students held a rally against “a governmental campaign of arrests and expulsions” some months earlier (Tehran Times, 18 11 1993).

12 I have presented this approach in greater detail in Islam and Ideology: Towards a Typology”, International Journal of Middle East Studies 19 (1987): 307–36. Here I am ignoring the “traditionalist” dimension, which is presented there.

13 See Articles 2 and 3 of the Egyptian constitution as amended in 1980. In its earlier, 1972 form, the constitution read, “the principles of the Islamic shariʿa are primary sources of legislation”.

14 Among popular spokespersons, I would be inclined to include the well-known physician and writer Mustafa Mahmud and the journalist Ahmad Bahgat (see Shepard, “Islam and Ideology”).

15 Al-Risāla al-khālida (Cairo: Al-Majlis al-aʿla li-l-shuʾun al-islamiyya, 1964), 212; cf. the English translation by Farah, C., The Eternal Message of Muhammad (New York: New American Library, 1964), 105. The book as a whole is more firmly in the Islamic modernist category, in my view, than this passage suggests.

16 For example, Qutb, Sayyid, Maʿālim fī al-ṭarīq (Beirut: Dar al-Shorouk, 1973), 95; cf. al-Ghazali, Sheikh Muhammad in Miṣr bayna al-dawlah al-diniyya wa-l-dawla madaniyya (Cairo: Dar al-Masrili-l-nashr wa-l-tawziʿ, 1992), 14.

17 As the so-called Takfīr wa-hijra and the jihad group (see esp. Jansen, J. J. G., The Neglected Duty: The Creed of Sadat's Assassins and Islamic Resurgance in the Middle East [New York: Macmillan, 1986]). The media image of al-Jamāʿa al-islāmiyya puts it in the same category, but I do not have enough information on the group's views to judge for myself.

18 Such as Khalid Muhammad Khalid, a well-known secularist writer who in 1981 declared himself for the Islamist position (Shepard, W. E., “Khalid, Khalid Muhammad”, in The Oxford Encyclopaedia of the Modern Islamic World [New York and Oxford: Oxford University Press, 1995], 2:412–13), and more recently Tariq al-Bisri (chap. 7 of Binder, Islamic Liberalism, represents his pre-Islamist thought; my information on his shift to Islam is derived from press reports and conversations with fellow scholars).

19 The proceedings were published in Miṣr bayna al-dawlah al-dinīyya wa al-dawla madaniyya (Egypt between the Religious and Civil State) (Cairo: Ummah Press Service, 1992). The secularist participants are mentioned below; the Islamist participants were Sheikh Muhammad al-Ghazali, Muhammad ʿImara and Maʾmun al-Hudaybi. There was evidently something along this line the following year, “where the Islamists often found themselves on the defensive”, according to the New York Times (2 06 1993) but apparently not at the same level. (Judge al-ʿAshmawi has described the 1992 event as “a first and a last”.) A somewhat similar debate was held by the Egyptian Medical Syndicate in 1986 and is described by Gallagher, Nancy E. in “Islam v. Secularism in Cairo: An Account of the Dar al-Hikma Debate”, Middle Eastern Studies 25 (04 1989): 208–15. Sheikh al-Ghazali also participated in this debate.

20 Miṣr bayna al-dawlah al-dīniyya, 17, 31; Egypt between the Religious and Civil State, 6, 13. In personal conversations Islamists have also described an Islamic state as madanī.

21 Media reports also have tended to confirm a combative image of him (e.g., Reuters, , 9 June 1992 and The Economist, 13 06 1992).

22 Although he has stated that “we must find an Islamic, not a Western, solution to our social and political problems” (Dalīl al-muslim al-ḥazin, 2nd ed. [Cairo: Dar al-Shorouk, 1985], 133), he has also written favorably of Atatürk, (Al-miʾa al-aʿẓam fī tārīkh al-islām [Cairo: Maktabat Madbouli, 1991], 299301).

23 As was noted by one of the Islamist participants, ʿImara, Muhammad: Egypt between the Religious and Civil State, 14; Miṣr bayna al-dawlah al-dīniyya, 32.

24 “The Constitution for the Return to Islamic Legislation”, trans. Donohue, J. J., “Islamic Law and Change in Arab Society”, vol. 4, Center for the Study of the Modern Arab World Reports 1976, St. Joseph's University (Beirut: Dar al-Mashreq, 1978), 79. DrKhalafallah, was involved in controversy in the late 1940s over his thesis on Qurʾanic narratives which was viewed as denying their historicity (on this see, inter alia, Haddad, Yvonne Y., Contemporary Islam and the Challenge of History (Albany: State University of New York Press, 1982), chap. 4; Shepard, , “Khalafallah, Muhammad”, in Oxford Encyclopaedia of the Modern Islamic World, 2:411–12. Among his writings are al-Qurʾān wa-mushkilāt ḥayātinā al-muʿāsira (The Qurʾan and Our Contemporary Problems) (Cairo: Anglo-Egyptian Bookshop, 1967).

25 This is based on a curriculum vitae supplied by Judge al-ʿAshmawi, personal communications from him, and information on the back cover of al-Ribā wa al-fāʾida fī al-islām.

26 See note 1.

27 Christian Science Monitor, world ed., 2 02–3 03 1993, 10 B.

28 He makes this point specifically in the introduction to the 1992 edition of al-Islām al-siyāsī, 5.

29 Al-Islām al-siyāsī, 44, 58, 186, etc.; al-Sharīʿa al-islāmiyya wa al-qānūn al-miṣrī, 14 (hereafter Qanūn al-Miṣrī); cf. Uṣül al-sharīʿa, 30 (where he mentions only ṭarīq and manhaj), 178, 190. He gives the English equivalents in “Islamic Government”, 10. He also notes the meaning “a path to water” in the dictionaries (Uṣūl al-sharīʿa, 30).

30 Sabīl al-Islām aw minhājuhu (Uṣūl al-sharīʿa, 32); Manhaj allāh aw sabīl allāh aw ṭarīq allāh (al-Islām al-siyāsi, 186). Al-ʿAshmawi does not distinguish between minhāj and manhaj, although the latter is far more frequent.

31 Uṣūl al-sharīʿa, 31; al-Islām al-siyāsī, 186.

32 Uṣūl al-sharīʿa, 32; al-Islām al-siyāsī, 58, 186.

33 Qānūn al-Miṣrī, 1118; cf. Uṣūl al-sharīʿa, 190–95 (gives other examples—e.g., of confusing sharīʿa and turāth).

34 Uṣūl al-sharīʿa, 178–79.

35 Ibid., 109.

36 Ibid., 133.

37 Ibid., 153.

38 Qānūn al-Miṣrī, 15.

39 Maʿālim al-islām, 165 (hereafter Maʿālim); Uṣūl al-sharīʿa, 51; al-Islām al-siyāsī, 139–40.

40 Uṣūl al-sharīʿa, 6065.

41 Qurʾan 5:44; al-lslām al-siyāsī, 140; Maʿālim, 199.

42 Qurʾan 5:51; Qānūn al-Miṣrī, 100102.

43 Al-Islām al-siyāsī, 138–40.

44 Maʿālim, 165.

45 Uṣūl al-sharīʿa, 70.

46 Al-Islām al-siyāsī, 139–40. His full terms are usūliyyah ʿaqliyyah (rūḥiyyah) and usūliyyah ḥarakiyyah (siyāsiyyah).

47 Ibid., 140.

48 Maʿālim, 199201.

49 Al-Islām al-siyāsī, 53, 195, 206–9; in “Militant Doctrine in Islam” he speaks of the “temporariness” of some Qurʾanic rules (p. 8).

50 Ibid., 195, 207–9.

51 Ibid., 47; Uṣūl al-sharīʿa, 7479.

52 Uṣūl al-sharīʿa, 79.

53 Maʿālim, 122.

54 Al-Islām al-siyāsī, 206–7.

55 Uṣūl al-sharīʿa, 73; Maʿālim, 122–25; al-Ribā wa al-fāʾida fī al-Islām, 3031.

56 Maʿālim, 183.

57 Uṣūl al-sharīʿa, 70.

58 He says there are 200 such verses, of which 120 are abrogated (Maʿālim, 182; cf. al-Islām alsiyāsī, 189).

59 Maʿālim, 184; al-Islām al-siyāsī, 194.

60 Uṣūl al-sharīʿa, 34.

61 Ibid., 33–34, 51; Maʿālim, 118–19; al-Islām al-siyāsī, 242. Matn is the content of the hadith, as distinct from the chain of authorities (isnād or sanad) who authenticate it.

62 For example, Maʿālim, 137–38 on the verse about those who do not rule by what God has revealed.

63 Al-Ribā wa-l-Fāʾida fī al-Islām, 33.

64 Uṣūl al-sharīʿa, 34, 5153.

65 Al-Islām al-siyāsī, 5458; Maʿālim, 117.

66 Uṣūl al-sharīʿa, 109.

67 Ḥadd, in fiqh, refers to a limited number of punishments that are specified in the Qurʾan or the sunna. Other punishments, not so specified but authorized by fiqh, are called taʿzīr. The following summary is based primarily on Qānūn al-miṣrī, 7587; cf. al-Islām al-siyāsī, 191–92; Uṣūl al-sharīʿa, 117–29.

68 Qānūn al-miṣrī, 8788.

69 This summary is based primarily on al-Ribā wa-l-Fāʾida fī al-Islām; see also Usūl al-sharīʿa, 110–16; Maʿālim, 251–55.

70 The following summary is drawn from this work, unless otherwise indicated. See also Maʿālim, 161–74 and elsewhere.

71 Maʿālim, 168.

72 Qānūn al-miṣrī, 46; in legislating, however, fiqh precedent is not to be ignored (p. 48).

73 Ibid., 49; slavery was abolished in response to “the spirit of the age” and international treaty obligations.

74 Ibid., 89.

75 Maʿālim, 167.

76 Uṣūl al-sharīʿa, 139–52.

77 Al-Islām al-siyāsī, 180.

78 Al-Khilāfa, 18, 101.

79 Maʿālim, 136.

80 Al-Islām al-siyāsī, 23, Maʿālim, 91, cf. 73; also personal conversation.

81 Al-Khilāfa, 231.

82 Ibid., 94, 104, 128ff.; al-Islām al-siyāsī, 165–71.

83 For example, ibid., 143–44.

84 Ibid., 19, 23.

85 Ibid., 139, 157 and passim; al-Islām al-siyāsī, 165ī71.

86 Al-Khilāfa, 234–35.

87 Ibid., 93–121.

88 Maʿālim, 1719.

89 Ibid., 79–82; al-ʿAshmawi refers to Ibn Khaldun's discussion of bedouins and civilization and refers to the Turks as bedouinizing Islamic civilization (ibid., 83 ff.).

90 Maʿālim, 180–81.

91 Ibid., 228.

92 Ibid., 229–30.

93 Ibid., 90–91.

94 Ibid., 62–73, 90–92. He comments elsewhere that Egypt has moved in a “bedouin” direction since 1967 (ibid., 296).

95 Ibid., 44.

96 Ibid., 44, 62–63, 70–73.

97 Ibid., 48–50.

98 That is, in the lexical meaning of muslim as one who submits to God rather than the derived but common meaning of one who is a member of the community known to history as Muslim.

99 Uṣāl al-sharīʿa, 39–48, 179–80; Maʿālim, 293–95. He also thinks Moses and some of his followers were Egyptians. On the relationship of Moses, Jesus, and Muhammad he takes a fairly standard view. Moses' shariʿa contained much legal detail and a harsh insistence on rights and duties. The shariʿa of Jesus stressed love and a willingness not to insist on one's rights. The shariʿa of Muhammad was a sharica of mercy, a marriage of law and love.

100 The Egyptian journalist Bahgat, Ahmad, for example, in his popular Anbiyāʾ Allāh, gives only half a page to Idris, noting the claim to identify him with Osiris but refusing to accept or reject it for lack of evidence (Beirut and Cairo: Dar al-Shuruq, 1977, p. 164).

101 Maʿālim, 248.

102 Ibid., 247.

103 Al-Khilāfa, 244.

104 Maʿālim, 94, 245–50, 285–89, 297–98.

105 Al-Khilāfa, 245.

106 Ibid., 232; al-Islām wa-uṣūl al-ḥukm, book II, chap. III. Al-ʿAshmawi here ascribes to ʿAbd al-Raziq the view that in Medina Muhammad ruled as a king on the same basis as others and that this was not part of the activity for which he had divine guidance. Some of what ʿAbd al-Raziq says suggests this (book II, chap. II, paras. 6, 7), but when he considers this possibility most directly he distances himself somewhat from it (book II, chap. II, para. 9). ʿAbd al-Raziq is not totally clear here, but it appears to me that his main view is that by the force of his religious mission, with the ambiguous assistance of worldly efforts such as war, taxation, and so on, the Prophet created a unity among the Arabs that looked like political unity and was shortly converted into a political kingdom by his successors (book II, chap. Ill, para. 5).

107 Al-ʿAshmawi states that Muhammad exercised political power only insofar as it was necessary to establish the religion (al-Khilāfa, 86); ʿAbd al-Raziq says that those actions of the Prophet that seem like actions of government, such as jihad, were really only means of establishing the religion (al-Islām wa-uṣūl al-ḥukm, book II, chap. III, para. 9), while elsewhere he claims that they were outside the strictly prophetic vocation (al-Islām wa-uṣūl al-ḥukm, book II, chap. II, paras. 6, 7). The main difference seems to be that al-ʿAshmawi is willing to call the activities in question government and says they were guided by revelation, whereas ʿAbd al-Raziq is less willing to do either. In short, al-ʿAshmawi is prepared to use the labels ḥukūmat allāh and ḥukūma dīniyya for the Prophet's activity and ʿAbd al-Raziq is not. The difference here seems to be more of symbol than substance, but of course in both religion and politics symbol is often more important than substance.

108 Al-Khilāfa, 86; al-Islām wa-uṣūl al-ḥukm, book II, chap. I, para. 7.

109 Uṣūl al-sharīʿa, 150–51; cf. al-lslām al-siyṣsī, 167.

110 Uṣūl al-sharīʿa, 149–50; cf. al-Islām wa-uṣūl al-ḥukm, book III, chap. 3, paras. 4–8. ʿAbd al-Raziq's primary concern is to argue that the wars of Ridda were not, for the most part, religious, but he seems to imply that Abu Bakr erred.

111 Al-Khilāfa, passim; al-Islām wa-uṣūl al-ḥukm, book I, chap. 3, para. 16. ʿAbd al-Raziq stresses this less than al-ʿAshmawi.

112 See note 20 and the passage to which it refers.

113 For example, al-ʿAshmawi, on the slogan al-islām dawla wa-dīn, Al-Islām al-siyāsī, 165 f. Qutb, undoubtedly with views such as al-ʿAshmawi's in mind, says: “The religion of God is not vague (ghāmiḍ), and His method (manhaj) is not formless … the established principles of ijtihād and derivation are likewise established and known, not vague (ghāmiḍ) and formless ….” (Maʿālim fi al-ṭarīq [Dar al-Shuruq, 1393/1973] 9495).

114 Al-Khilāfa, 13ff. Qutb, , al-Mustaqbal li-hādhā al-Dīn (Kuwait: IIFSO, 1978), 27ff.

115 In conversations in Egypt in 1984–85 and 1992 I was told several times that a given percentage (e.g., 90%) of Egyptian laws are already in accord with the shariʿa; when I put this to members of the Muslim Brotherhood, they responded by asking about the rest of the laws, by stating that the intention is crucial, and by pointing out what to them are egregious current violations.

116 He does, however, remark in one place that current Egyptian law can be considered a new fiqh (al-Islām al-siyāsī, 170).

Muhammad Saʿid al-ʿAshmawi and the Application of the Shariʿa in Egypt

  • William E. Shepard (a1)

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