Locating Islamic Law in Egypt
A particular line of arguments has long dominated discussions about ʿAbd al-Razzāq al-Sanhūrī (d. 1971), civil code, and Islamic law in modern Egypt. A common problem with these existing treatments of modern Egyptian legal history is the assumption that Islamic law became a formative source of legislation only upon the ratification of the second article in the 1971 Egyptian constitution, which states that “principles of Islamic law are the prime source of legislation.”Footnote 1 This so-called Sharīʿa Article in the 1971 constitution appears to be viewed, especially in intra-Egyptian polemics, as a watershed moment in which Islamic law is (re)inscribed in the Egyptian legal and constitutional order. However, this narrative ignores the fact that most Egyptian constitutions—including the 1923 constitution, in article 149—have stated that “Islam is the religion of the state and Arabic is its official language.”Footnote 2 Until 1955, Islamic and Jewish courts and Christian tribunals—although with limited jurisdiction over personal status matters—were standing institutions with a sophisticated set of regulations, procedures, and dedicated staff and personnel.Footnote 3
My interest here is to show how the sovereign power of a national state was theorized and justified by a key Egyptian intellectual and to examine the concepts that underpin the normative secular power of the Egyptian state. In doing so, I explore the question beyond the well-trodden concepts of importation, introduction, and translation of the term secularism into Arabic in late nineteenth-century Egypt.Footnote 4 I propose that Islamic normative categories—in the case of al-Sanhūrī—were central to the articulation of a secular political order in Egypt.Footnote 5 He relied upon the Islamic legal distinction between ʿibādāt and muʿāmalāt within the fiqh tradition as the medium to facilitate these borderlines between religion and state or dīn and dawla.Footnote 6 Thus, I challenge some treatments which confine the relevance of Islamic law in Egypt to president Anwar al-Sadat's (d. 1981) constitutional changes of 1971.Footnote 7 I submit that the objective of al-Sanhūrī's scholarly endeavor, at this point, was institutional secularization:Footnote 8 to formulate a political order, a theory of a state, in which Islamic law could play a key role in theorizing its institutions and forging its legal order.Footnote 9 Furthermore, I maintain that al-Sanhūrī's legal project should be viewed as a faithful commitment to French comparative law as a method of legal inquiry and a reflection of his nationalist agenda of creating a unified national legal order that cannot exist without relying upon indigenous forms of law and culture.Footnote 10
What seems to be overlooked in some treatments of modern Egyptian legal history is how contentious concepts in al-Sanhūrī's thought such as sovereignty have been taken for granted, when in fact, there are records of lengthy discussions on its Arabic rendering and translation into siyāda in the 1920s. Similarly, the debates on the actual interworking of the institutional demarcations between secular political power and religious bodies in post-Ottoman Egypt indicate that these boundaries were unsettled and indeterminate.Footnote 11 The ratification of the 1923 constitution by Egyptian nationalists after the declaration of independence in 1922 was viewed by some scholars as, “a legal revolution which reversed the traditional relationship between the sovereign and the Shariʿah. Instead of his being under it, it was placed under him, along with the general affairs of the state.”Footnote 12 Salaymeh has made a similar observation and maintains that the Islamic constitutionalism that emerged in the late nineteenth century transformed the way Islamic law is inscribed in these constitutional orders. She states, “While Islamic law was initially understood as a limit on governance, it eventually became identified in various constitutions as a source of law.”Footnote 13
The adoption of civil law in Egypt, in al-Sanhūrī's reading, was driven by compelling political calculations to limit the impact of capitulations during the reign of Khedive Ismāʾīl (d. 1895) and his prime minister, Nūbār Pasha (d. 1899).Footnote 14 After concerted political efforts, the Mixed Courts were created, which entailed wholesale borrowing of civil, procedural, commercial, maritime, and criminal law from the French code.Footnote 15 Although al-Sanhūrī saw many faults and issues with these early codification attempts in Egypt, he embraced these codes as a welcome paradigmatic shift. Al-Sanhūrī and the nationalist legal elites of the early twentieth century, driven by a strong commitment to end the capitulations, rejected Khedival legal pluralism, and insisted on a unified national court system and single code for all Egyptians, regardless of their religious tradition or national origin. Al-Sanhūrī saw legal pluralism as an obstacle to national sovereignty—specifically a type of sovereignty exercised in Italy and France.Footnote 16 For al-Sanhūrī, lawmaking is a concomitant symbol of sovereignty. I maintain that the emergence of civil law in Mixed and National courts, in 1875 and 1883 respectively, should be understood as a transplantation of a legal system in late nineteenth-century Egypt. The adoption of civil law and the subsequent projects to codify and unify all legal and court systems were an indication of the increasingly hegemonic status of a certain legal logic of reform among political and legal elite.
Al-Sanhūrī: Islam Is “Dīn wa Dawla”
ʿAbd al-Razzāq al-SanhūrīFootnote 17—the father of the Egyptian legal code—theorized a relationship between religion and state in an article titled “Al-dīn wa dawla fī Islām”Footnote 18 published in Majallat al-Muḥāmāh al-Sharʿiyya Footnote 19 in October 1929, two years after he finished his doctoral studies at the University of Lyon.Footnote 20 This article is the only Arabic summary by al-Sanhūrī himself of his second dissertation, on the caliphate.Footnote 21 It was published in a time of deep uncertainty among Muslims after the abolishment of the Ottoman caliphate in 1924. In it, al-SanhūrīFootnote 22 proposed a relationship between the Islamic legal tradition, Franco-Egyptian law,Footnote 23 and the emerging Egyptian state institutions, wherein the domain of dīn was intentionally kept outside of state sanction.Footnote 24 Al-Sanhūrī argued that the postcolonial Egyptian state inherited aspects of the Ottoman caliphal authority that allowed it to assume the power to determine religious legal norms for Egyptians. Thus, the recalibration of the sovereign authority of the emerging Egyptian nation-state in the mid-twentieth century—as theorized by al-Sanhūrī—was presented as an extension of the siyāsa sharʿiyya (discretionary power of the political ruler), or at least can be constructively harmonized with Sunnī political thought.
Al-Sanhūrī recognized the historical and political significance of the caliphate in this article and thus argued for a Muslim political project in which the core values of the caliphal order could underpin emerging Muslim states.Footnote 25 Al-Sanhūrī contended, in their role acting on behalf of the Muslim community, that the Muslim heads of state should apply Islamic law as independent jurists (mujtahids) and avoid embracing a particular Islamic legal school (madhhab).Footnote 26
Al-Sanhūrī organized his article around three key issues: (1) “Islam is a religion and a state,” (2) “public authorities in the Islamic state,” and (3) “history of these authorities in Egypt.”Footnote 27 Under “al-Islām dīn wa dawla,”Footnote 28 al-Sanhūrī states, Islam is a distinct tradition because it is a religion (dīn) and a state (dawla).Footnote 29 He contends that the Prophet Muḥammad was sent not only to establish a religion (dīn) but also to lay the foundation of a state (dawla) that manages the daily affairs of individuals.Footnote 30 In this understanding, al-Sanhūrī maintains that Muḥammad is considered the founder of the Islamic government (ḥukūma islāmiyya) and a Prophet (nabī) for Muslims.Footnote 31
Al-Sanhūrī posits that, as the founder of a state, the Prophet had authority (wilāya) over all of those who submitted themselves to the state—whether they were Muslims or not. However, in his capacity as a messenger, al-Sanhūrī elaborated, the Prophet did not demand recognition for his prophethood (nubuwwūa) from non-Muslims who adhered to their religions, despite his message being universal to all humans.Footnote 32 To al-Sanhūrī, therefore, it is imperative to differentiate between Islam as a religion and as a state, although Islam combines both. The benefit of this differentiation—according to al-Sanhūrī—is that matters of dīn are studied with a different method (he uses the Arabic word rūḥ, meaning spirit or soul) than that applied to matters of the state.Footnote 33 In other words, the capacity of the Prophet Muḥammad and his role as political leader and a messenger allows al-Sanhūrī to theorize a distinct relationship between Muslim religious commitments and state affairs in Egypt. To al-Sanhūrī, dīn is concerned with the relationship between the individual and their Creator. Dīn does not change and it should not change. God is eternal without a beginning or an end. God is not susceptible to change. The relationship between God and his creation is permanent.Footnote 34 By contrast, al-Sanhūrī viewed matters of the state to be contingent upon public interest (maṣlaḥa) and rational management (tadbīr).Footnote 35
Al-Sanhūrī emphasizes that the domain of the state has two distinct particularities. The first feature is that state affairs are subject to rational judgment (ḥukm ʿuqūlanā). God endowed humans with rational faculties to distinguish between good and evil. These rules that relate to the daily affairs of individuals are based on rational judgment and anchored in maṣlaḥa, where the rational faculty (al-ʿaql) guides them to this maṣlaḥa.Footnote 36 To al-Sanhūrī, we establish knowledge based on ʿaql, because knowledge (ʿilm)—whether it is based on social or natural sciences—cannot be attained without rational capacity. Therefore, reason (al-ʿaql) is the foundation (al-asās) of knowledge for state affairs. Al-Sanhūrī elaborates that the Prophet used to consult with others on the management (tadbīr) of the daily affairs of the community because it is a matter of rational judgment.Footnote 37 Like us, al-Sanhūrī confirms, the Prophet was a human being and in need of consultation in matters determined by reason for which the following Qurʾānic verse was revealed: “And Consult them in the matter” (3:159). He explains that the Prophetic biographies included many reports that establish the Prophet's practice of consulting with his Companions, such as the first Caliph, Abū Bakr al-Ṣiddīq (d. 634), the second Caliph, ʿUmar b. Khattāb (d. 644), and others.Footnote 38
The second distinguishing feature is that judgments in matters relating to state affairs evolve with changes in time and place.Footnote 39 They are contingent upon social progress guided by contemporary knowledge (ʿilm). As al-Sanhūrī contended in the previous feature of state governance, these matters are subject to the knowledge that is derived from the rational faculty (ʿaql), they are necessarily subject to what is discovered from rules of change (qawānīn al-taṭawwūr) through the social sciences.Footnote 40 To al-Sanhūrī, rules relating to social interaction (al-aḥkām al-dunyāwiyya) constantly evolve. These rules even changed over the course of the Prophet's lifetime.Footnote 41 Al-Sanhūrī provided a few examples, such as: the theory of abrogation in the Qurʾān; gradual prohibition on social habits such as drinking wine; and the plurality of Islamic legal schools. These examples, for al-Sanhūrī, are all traces of the evolution that was necessitated by public interest and compelling circumstances.
Al-Sanhūrī focused on another revealing example of social and legal change during the Prophet's lifetime to further make his point.Footnote 42 He explained that when the Prophet migrated from Mecca to Medina, he was accompanied by a number of migrants (Muhājirūn) from Mecca. Upon arriving in Medina, they found themselves in an unfamiliar place without food or sustenance. Therefore, the Prophet united the Muslims of Medina (Anṣār) with the migrants from Mecca (Muḥājirūn) for five months after migrating to Medina. He designated ninety Muslims, forty-five from each group, as a union of brotherhood. This foundation of brotherhood established by the Prophet was based on mutual economic and psychological support and the principle of being inheritors to each other.Footnote 43
Based on this union, al-Sanhūrī speculates that this system of brotherhood between residents in Medina and migrants from Mecca produced legal consequences similar in some respects to the system of adoption (niẓām al-tabanī) in some European laws (al-sharāʾi al-ajnabiyya). He explains that the Prophet established a form of kinship based on a legal relationship (nasab qānūnī) through this system of brotherhood; then, he invalidated it and went back to kinship based on biological relations (nasab ṭabīʿī). These changes—to al-Sanhūrī—are examples of legal evolution prompted by economic needs, social circumstances, and public interest.Footnote 44
After this presentation, al-Sanhūrī establishes that Islam is dīn wa dawla. This was a direct response to ʿAlī ʿAbd al-Rāziq's (d. 1966)Footnote 45 book Al-Islām wa Uṣūl al-Ḥukm (published in 1925, one year after the abolishment of the Ottoman caliphate), which claimed that the Prophet's message was limited to religious and spiritual affairs and that regulating daily affairs is not germane to the Prophet's message.Footnote 46 ʿAbd al-Rāziq's key claims in the book are that the caliphate is not religiously obligatory and that Muḥammad was a Prophet, not a king. To al-Sanhūrī, these claims are incorrect interpretations of the Prophetic message, and they represent an attempt to circumvent historical facts without proper evidence.Footnote 47 If Muḥammad was a Prophet in Mecca, al-Sanhūrī declares, then he was the head of the community and founder of a “state” in Medina. Al-Sanhūrī does not see a problem in stating that the Prophet Muḥammad was a king (malik) if the term is used to denote that he was the head of the Islamic government (al-hukūma al-Islāmiyya) and a guardian (walī) over Muslims in their daily affairs—aside from the fact that he was their guide in their religious affairs also.Footnote 48
Furthermore, al-Sanhūrī points out that when lawyers like him studied the science of fiqh, they discovered that Muslim jurists were aware of the importance of the distinction between matters of dīn and dawla. He explains that Muslim jurists divided Islamic law into chapters on rituals (ʿibādāt) and chapters on contracts and transactions (muʿāmalāt). For al-Sanhūrī, the chapters on muʿāmalāt are the focus of modern state law (al-qānūn al-ḥadīth). If we are to preserve the classical meaning of the term sharīʿa, which combines both ʿibādāt and muʿāmalāt, al-Sanhūrī proposed to create new terminology to indicate the shift of interest to studying exclusively the muʿāmalāt sections of fiqh. He suggested using the term Islamic law (al-qānūn al-Islāmī) to refer to the chapters of muʿāmalāt in the books of fiqh.Footnote 49 This is the crux of al-Sanhūrī's project: the creation of an Islamic law that could be the basis for an Islamic public law (qānūn ʿāmm). This new Islamic law would include sections on transactions (muʿāmalāt) from fiqh, some sections from legal theory (uṣūl al-fiqh), and the section on political leadership (al-imāma) from theology (ʿilm al-kalām). Overall, to al-Sanhūrī, Islamic law can be divided into two areas: (1) private law and (2) public law. Private law is concerned with rules that govern the relationship among individuals. He considers that the chapters on muʿāmalāt and personal status (aḥwāl shakhṣiyya) are part of private law. Public law, on the other hand, is concerned with rules that govern public authorities and the relationship between these authorities and the individuals within the polity.Footnote 50
To al-Sanhūrī, this taxonomy of Islamic Law allows him to construct sub-divisions of law within these two main categories. He proposed that Islamic private law will include: civil law, civil procedures, and commercial law. On the other hand, Islamic public law will include: constitutional law, administrative law, and criminal law. This will also enable al-Sanhūrī to find foundations for public and private international Islamic law. The importance of adopting this taxonomy is to cope up with modern law and legal research, where legal science is fully developed.Footnote 51 Al-Sanhūrī is clear that this taxonomy of Islamic Law is not designed to dilute the sharīʿa in modern law so that it may lose its independence. Instead, it is meant to facilitate the comparison among these systems and promote legal research in sharīʿa to catch up with modern law.Footnote 52
This proposed taxonomy of public and private Islamic Law is contentious because it forces Islamic law into unexplored borrowed categories. However, al-Sanhūrī finds a basis for his taxonomy in legal theorists’ distinction between claims of God (ḥuqūq Allāh) and claims of the individual (ḥuqūq al-ʿabd). He opined that claims of individuals are suitable to be considered within the domain of private law and claims of God to be placed with the domain of public law. Al-Sanhūrī uses these initial thoughts to argue that since Muslims have a law, they should then have an Islamic government. He envisioned a modern Muslim government to consists of three branches: legislative, executive, and judicial.Footnote 53
Al-Sanhūrī's articulation of these three branches of government is instructive to pinpoint how he inscribed Islamic law in the modern Egyptian state. Under the legislative authority, al-Sanhūrī emphasized that God is the legislator. However, God's commands and prohibitions can only be known through revelation. Revelation is given to prophets. Therefore, we can only know of God's will through the Prophet Muḥammad. To al-Sanhūrī, the Qurʾān contains God's will and His message to His servants.Footnote 54 Therefore, the Qurʾān should be the first source of legislation. And the prophetic Sunna—which explains the Qurʾān—should be the second source of legislation.
On the other hand, al-Sanhūrī stated that the daily affairs of individuals follow the development and changes in the social sciences. Following the cessation of revelation with the Prophet's death, it was imperative for Muslims to develop a third source of legislation that would guarantee that the rules regulating the daily lives of Muslims are suitable for each time and place.Footnote 55 This third source of legislation—according to al-Sanhūrī—is the consensus of the Muslim community (umma). How could Muslim consensus become a law? Al-Sanhūrī speculated that consensus in this context is not concerned with the agreement of independent Muslim scholars (al-mujtahidūn) in a particular time on a specific legal position, as is typically understood in uṣūl al-fiqh. For the modern Egyptian state, al-Sanhhūrī redefined consensus beyond its normative connotation, wherein only a class of jurists have such authority. He submitted that every Muslim could be a mujtahid if they are able, through knowledge, to reach such a degree of independent reasoning.Footnote 56
Al-Sanhūrī theorized that consensus could become a law when a group of Muslims are deputized to act on the behalf of the umma. Unlike modern parliamentary councils, this deputyship is maintained through knowledge, not through elections. This group would have the authority to legislate according to the Qurʾān and Sunna.Footnote 57 Al-Sanhūrī posited that the government in Islam is a government of scholars. The legislation in the Islamic government should be the exclusive authority of the jurists. This is a foundation of Islamic legal theory. For al-Sanhūrī, the caliph—who is at the top of the Islamic government—does not have the ultimate authority over legislation.Footnote 58 However, he does partake in the legislative process in his capacity as a mujtahid, not solely due to his political qualifications. The sultan is only a deputy on behalf of the Umma. For al-Sanhūrī, the umma is the ultimate source of authority, and it is the deputy of God on earth (khalīfa). Thus, the source of legislative authority in an Islamic government is the umma itself and it is not vested in one individual or a class of individuals.Footnote 59
In his discussion of the executive power, al-Sanhūrī stated that the executive authority in Islam is the government: specifically, a caliph-led government (ḥukūmat al-khilāfa).Footnote 60 This caliph-led government is marked by three key characteristics: (1) The caliph is not just a political ruler, but he is also the religious leader of Muslims. However, this religious role is limited to leading public prayers and rituals such as Ḥajj. To al-Sanhūrī, the term imām is used to refer to the religious duties of the caliph in his capacity in leading Muslims. By contrast, the label Amīr al-Muʾminīn (commander of the faithful) is used to refer to the political duties of the caliph. (2) The caliph in his executive authority should adhere to Islamic norms. He does not have to adhere to a particular legal school. As a mujtahid, he has the ability to consider the changes of time, circumstances, and places. He can demand from the independent jurists to agree on a maṣlaḥa for the benefit of the community—even if he disagreed with all the existing rules in the legal schools. For al-Sanhūrī, it is well established that the consensus of mujtahids is a legitimate source of legislation. (3) The authority of the caliph should be recognized by the Muslim world. The unity of God is the bedrock of the Islamic state. The unity of Islam should necessitate the existence of one caliph. Al-Sanhūrī calls this scenario a complete caliphate (al-khilāfa kāmila).Footnote 61
However, al-Sanhūrī contends that since historical circumstances may oblige Muslims—whose unity has been unattainable—to be divided into different nations, then each would have local governments, thus necessitating the existence of multiple caliphs. In this scenario, the caliphate is incomplete (khilāfa ghayr kāmila). Al-Sanhūrī projected that having one caliph under which Muslims can develop a single unified government appears to be impossible as a practical matter. He proposed that Muslim governments might reach an understanding to form a League of Muslim Nations to lead local Muslim governments.Footnote 62 The league would be the institution of the caliphate (haʾyat al-khilāfa), in which an independent office could be dedicated to address the religious affairs of Muslims.Footnote 63
As for the judicial authority, al-Sanhūrī stated that it used to be part of the executive branch. The caliph used to combine both authorities. He is the one who hires and fires judges and could adjudicate some issues himself. The Prophet and the rightly guided caliphs after him did adjudicate cases among people. Upon the expansion of Muslim lands, caliphs delegated judges to adjudicate among people in the provinces and garrison cities. The judiciary since then had gradually become more independent from the power of the executive.Footnote 64
After this presentation of a potential rapprochement between Islamic law, its historical institutions, and the emerging modern nation state apparatus in Egypt, I glean three main observations from al-Sanhūrī's project. First, he theorized a relationship between the modern Egyptian state and Islamic law, where the matters of dīn and ʿībādāt are the exclusive domain of Muslim theologians. He stressed that there is no room for the state to encroach on these matters.Footnote 65 Al-Sanhūrī's recalibrations of the domains of dīn and dawla were construed in the secondary literature as an indication of al-Sanhūrī's secularism.Footnote 66 Amr Shalakany, for example, argued: “Sanhuri asserts already in the avant propos the fundamental distinction between ‘sacred’ and ‘temporal’ aspects of Islam, and unequivocally locates his study of Islamic law in the realm of the latter.”Footnote 67 He claimed: “Both Sanhuri and Nasser were secularists: both were committed to a fundamental distinction between the religious and the temporal, and both awarded exclusivity to the temporal in the public sphere.”Footnote 68 I am not convinced by Shalakany's collapse of the obvious difference between al-Sanhūrī and Nasser. After all, al-Sanhūrī stressed the essential role of Islam in any form of political governance in Muslim societies, rejecting ʿAlī ʿAbd al-Rāziq's assertions about the caliphate and emphasized the importance of Muslim political solidarity evidenced by his work on the caliphate.
Second, al-Sanhūrī transforms the meaning of the caliphate by deploying its inherent potency for a collaborative political order among Muslim nations in the early twentieth century. Al-Sanhūrī installs the collective of the community—the umma—as the true caliph: the sole locus of authority and legitimacy. Therefore, it is through its will and emancipatory politics that Muslims can form political institutions that can sustain their aspirations for unity and strengthen their resilience for independence from colonial rule.
Finally, al-Sanhūrī was the first to introduce the distinction between public and private law in his proposed codified Islamic law. On public law, al-Sanhūrī laments the absence of rules that govern the principles of political legitimacy in Islamic jurisprudence by blaming the tyrannical governments of the past. He emphasizes that the objective of these governments was to suppress any juristic movements that would establish political rule on the principles of political freedom and democratic public rights. Al-Sanhūrī's goal from this notion was to develop a theory of political legitimacy that goes beyond the fiqh tradition, which was limited in its scope to the mere legitimate exercise of power.Footnote 69
A Restatement: Al-Sanhūrī on Islamic Courts
In 1936, al-Sanhūrī published an article titled “Wujūb tanqīḥ al-qānūn al-madanī al-miṣrī wa ʿalā ayy asās yakūn hadhā al-tanqīḥ” in Majallat al-Qānūn wa al-Iqtiṣād.Footnote 70 In it, he presented three key proposals as part of a roadmap for extensive revisions of civil law (al-qānūn al-madanī) in Egypt. Compared to his previous commitments in 1929, al-Sanhūrī made a set of revisions—restatement of his previous arguments—regarding the role of Muslim jurists and Islamic legal institutions in the emerging Egyptian state.
First, al-Sanhūrī rejected the legal wisdom of early twentieth-century Egypt, which had enabled a careful balance between codified civil law that governed commercial transactions and uncodified norms of Islamic law that governed personal status laws, endowments, and a set of contractual agreements. This balance maintained the coexistence of Islamic courts, religious tribunals for Jews and Christians, and state secular courts.Footnote 71
Second, al-Sanhūrī called for a complete codification of the entire legal domain in Egypt (al-taqnīn al-kāmil).Footnote 72 He called for the codification of all spheres of law and insisted that it should be a comprehensive code just as any other civil code in Europe. Al-Sanhūrī emphasized that in the process of this codification, personal status law would not borrow from Western legislation (al-tashrīʿāt al-gharbiyya). He maintained that the new legislated code (al-tashrīʿ al-jadīd) would be based solely on Islamic law (al-sharīʿa al-Islāmiyya). Al-Sanhūrī introduced a caveat that the proposed new code would be made suitable to apply to all Egyptians, including non-Muslims, in their commercial and personal status laws.Footnote 73 Al-Sanhūrī argued that such a unified legal code would respect all religious beliefs and would not violate any of them.Footnote 74 He asserted that the rules that would be codified from the sharīʿa should be carefully selected so that they can be applicable to all Egyptians, Muslims and non-Muslims. However, if necessary, al-Sanhūrī explained, a codification of specific rules to be applicable only to non-Muslims should be devised to fill any gaps.Footnote 75
Third, al-Sanhūrī claimed that the complete integration of personal status laws into the civil law jurisdiction did not mean “integrating”Footnote 76 Islamic Courts (al-maḥākim al-sharʿiyya), Religious Tribunals (al-majālis al-milliyya), and Probate Councils (majālis ḥasbiyya) into the National Courts (al-maḥākim al-ahliyya). However, he made sure to note that this “integration” of all courts is the wish of every patriotic Egyptian who aspires for judicial reform and it is a necessary process.Footnote 77 This unification proposal is a culmination of debates that started in the late nineteenth century and intensified after World War I. In April 1930, Rashīd Riḍā (d. 1935)—the founder of the famous journal Al-Manār—published a piece in Majallat al-Muḥāmāh al-Sharʿiyya on the significance of distinguishing between Islamic and National Courts and their treatment of the Islamic legal tradition. The key argument pursued by Riḍā was that, unlike for the National Courts, the legal issues that fall within the limited jurisdiction of Islamic courts are not subject to the prerogative of the political authorities because they are intimately associated with religious and doctrinal matters with stipulated textual evidence. In Riḍā's estimation, despite the expanding jurisdiction of National Courts, the legal matters that they address (such as criminal and financial disputes) are open to policy considerations and independent reasoning (ijtihād). In short, the overwhelming gist of Riḍa's writings in early twentieth century Egypt concerns the uncertain fate of Islamic Courts. It was clear to Riḍā that calls to unify the judiciary (tawḥīd al-qaḍāʾ) were only a pretext to abolish Islamic courts.Footnote 78
Al-Sanhūrī affirmed that the goal of integrating and codifying Islamic personal status law was not to sideline the authority of the sharīʿa; instead, he asserted that such codification would be an extension of the authority of the sharīʿa not only to personal status law but also to commercial transactions within the civil law.Footnote 79 Thus, al-Sanhūrī viewed Islamic courts as temporary institutions that should be eventually subsumed under National Courts (al-maḥākim al-ahliyya).Footnote 80 I propose that al-Sanhūrī's claim here should be read as both a manifestation of his commitment to an understanding of the social function of law and as an effective maneuver that allowed him to address mounting criticism of the fate of Islamic courts. These claims by al-Sanhūrī about codification of personal status law have been couched in the scholarly literature as evidence of “Islamization” of Egyptian law. Enid Hill, for instance, has proposed that al-Sanhūrī's major aim for the revisions of the civil law “was to make Egypt's civil law more Islamic.”Footnote 81 I contend that it is precisely this narrative that shields al-Sanhūrī and his project from scrutiny and critical engagement. It deliberately masks serious ruptures in Egyptian legal history while simultaneously justifying the erasure of Islamic legal institutions and religious tribunals for non-Muslims. It is a misreading of al-Sanhūrī's project to consider his reliance on the Islamic legal tradition—among other sources—as an “islamicisation of Egyptian law.”Footnote 82
Al-Sanhūrī asserted that it is an erroneous impression to maintain that Islamic law (al-sharīʿa al-Islāmiyya) can be found only through the process of discovery in authoritative Muslim juristic works. He explained that codifying sharīʿa is not a difficult matter, elaborating that “codifying Islamic law was officially done by the Turks in the famous Mecelle [the Ottoman civil code] and a similar project was completed in Egypt by Muḥammad Qadrī Pasha (d. 1928), in which he codified Islamic norms in personal status law, commercial transactions, and endowments based on Ḥanafī jurisprudence.”Footnote 83 Al-Sanhūrī pointed out that Egyptian legislators had already codified some of the Islamic procedural rules that were integrated into the ordinances of Sharīʿa courts.Footnote 84 He contended that in the proposed process of rewriting the civil law in Egypt, the drafters should choose from the most suitable positions from the Islamic legal works, without adhering to a particular legal school. The codification of personal status law would thus not only be just another code but also, and more significantly, a comprehensive legal reform.Footnote 85
Aware of the serious consequences of his proposal, al-Sanhūrī emphasized the importance of separating the prospects of creating a unified and comprehensive civil code from the idea of unifying all courts within a single court system. However, in practice, al-Sanhūrī's proposal sealed the fate of the Islamic courts. He saw the emergence of a nationalized court system as inevitable due to the importance of establishing a unified civil code as an expression of Egyptian sovereignty and independence.Footnote 86 Al-Sanhūrī consistently compared his proposal for a unified civil code to similar efforts in France and Italy as an expression of their sovereign national will and a process to avoid conflicts and disputes among different legal bodies within the country. It is important to underline that al-Sanhūrī viewed National Courts (al-maḥākim al-ahliyya) as the only recognized state courts (al-maḥākim al-ʿāmma) which he intended to function under a unified civil code and thus to rebrand as “Egyptian National Courts” (al-maḥākim al-miṣriyya). He stressed that all other courts such as Mixed and Islamic courts are merely provisional courts (maḥākim istithnāʿiyya), which eventually would become part of the Egyptian National Courts (al-maḥākim al-miṣriyya).Footnote 87
Leonard Wood offers a detailed account of the intellectual context—namely, European style comparative law—that helped al-Sanhūrī to develop a practical theory of modern Islamic private law.Footnote 88 Wood focused his analysis on al-Sanhūrī's final comparative legal work, Maṣādir al-Ḥaqq fī al-fiqh al-Islāmī (Theory of rights in Islamic law).Footnote 89 He explains that al-Sanhūrī's Theory of Rights is “rarely analyzed for what it reveals about the juridical method of al-Sanhūrī and similarly minded jurists of his age.”Footnote 90 Wood argues that al-Sanhūrī's Maṣādir al-Ḥaqq fī al-fiqh al-Islāmī was the “material revision of the theory and methods of Islamic jurisprudence in the modern era.”Footnote 91 Wood claims that al-Sanhūrī embraced the role of an independent Muslim jurist (mujtahid), who addressed questions about modern Islamic private law on his own authority.Footnote 92
Wood elaborates that al-Sanhūrī used comparative law to “guide the formation of a practical theory of modern Islamic private law and, in the process, to explain how Arab civil codes were consonant with Sharia, even though their articles were borrowed from European codes.”Footnote 93 This approach was deployed by al-Sanhūrī to argue that the Egyptian Civil Code of 1948 and other Arab civil codes were consonant with Islamic legal tradition.Footnote 94 Wood contends that al-Sanhūrī's “methodology and theory of Islamic jurisprudence faded from prominence not because they definitely constituted a weaker and less defensible approach from the standpoint of Islam, but rather because political, cultural, and religious forces that became prominent in Egyptian society and the Arab world pushed law and legal thought in different directions to serve competing goals.”Footnote 95 Wood sees the future of al-Sanhūrī's project to have been “cut short by the Arab nationalist revolutions and the subsequent rise in the cultural and religious influence of the Gulf states.”Footnote 96
I find Wood's intervention compelling. He provides a detailed narrative of the intellectual genealogy of al-Sanhūrī's legal thought. Wood is correct to point out that al-Sanhūrī's Maṣādir al-Ḥaqq fī al-fiqh al-Islāmī “could be understood as one of al-Sanhūrī's various expositions that sought to explain and defend the ‘Islamicity’ of the new Arab civil codes.”Footnote 97 I am not as certain as Wood about the success of this strategy and its rhetoric, however. Al-Sanhūrī's need to defend the “Islamicity” of his project should be understood in the context of the European sources of the civil code and its devastating consequences on the standing Islamic legal institutions, scholars, judges, and lawyers after World War I. After the 1930s, al-Sanhūrī did not see a future for the institutional presence of Islamic law outside what he voluntarily admits would-be Egyptian civil law. In addition, there are material reasons inherent to al-Sanhūrī's project that should be considered in the assessment of the failure of the project to take firm roots, key among them: (1) the fierce rejection of al-Sanhūrī's codification project by a wide coalition of the educated class, including some of al-Sanhūrī's colleagues who studied in France; (2) the policy repercussions for Islamic legal institutions, such as courts, in light of al-Sanhūrī's insistence on complete codification of all spheres of law and unification of courts.
In addition, I am ambivalent about Wood's framing of al-Sanhūrī's engagement with Islamic law, or that al-Sanhūrī's efforts to include aspects of Islamic jurisprudence in the Egyptian civil law made him a mujtahid.Footnote 98 This assessment is based on the understanding that al-Sanhūrī's re-articulation of some Islamic legal norms to fit civil law strictures was an exercise in Islamic legal thought. I contend that Islamic law appears, in al-Sanhūrī's writings, as an effective instrument and justificatory tool that allows him to both commit to and deviate from certain positions in the codes that he consulted for the formation of his codification project. In these efforts, al-Sanhūrī reveals himself to be the sole arbiter of the acceptability of Islamic legal positions and their authoritativeness—a sign of his intellectual courage.
Unification of Courts: From a Colonial Policy to a Nationalist Aspiration
The unification of Egyptian judicial bodies (tawḥīd al-qaḍāʾ) was a concern for British colonial officers in the late nineteenth century. Since the 1890s, the British judicial advisors at the Ministry of Justice (wizārat al-ḥaqqaniyya) played a central role in shaping courts in Egypt through the careful rearrangement of legal education, leading committees that selected students for the Khedival Law School, serving as judges for civil courts, and shaping procedural law and the jurisdictional authority of Islamic courts. On April 4, 1896, Majallat al-Ḥuqūq (Al-Hocouc) published a front-page piece on the unification of the Egyptian judiciary. The editor of Al-Ḥuqūq, Emin Schemeil (d. 1897), identified three central challenges to the reforms championed by the British judicial advisor, Sir John Scott (d. 1904), who had assumed this role in 1891. First, unification of the judicial system under a single law: Schmeil argued that the existence of diverse judicial bodies with separate procedural and legal norms, namely, National, Mixed, Islamic, consular, and patriarchate courts, was an obstacle for the reform agenda of establishing a single court system under a single law. Second, unification of civil law: the editor maintained that law must be unified in Mixed and National courts, a challenge that the Egyptian nationalists, with British support, achieved by the mid-twentieth century. Third, a comprehensive civil code (al-sharīʿa al-madaniyya): Schmeil stressed that there is a single legal system in every modern nation, and it cannot differ based on one's legal school, sect, or religious backgrounds because law pertains to all individuals. Schmeil claimed that a secular state legislator (al-shāriʿ al-madanī) is necessarily focused on preserving and expanding secular state laws—as opposed to religious laws (al-ḥuqūq al-dīniyyah)—in order to preserve social bonds among individuals in a single polity and maintain relations among states.Footnote 99 He stressed the necessity, if not the inevitability, of the unification of laws in Egypt; however, simultaneously, he lamented that such endeavors would take time to materialize.Footnote 100 Egyptian nationalists and the secular legal elite in the early twentieth century embraced this policy of unification of laws and courts as a concomitant condition for achieving Egyptian independence and statehood.
These debates reveal that the secularization of law in Egypt had been achieved partly through procedural and structural reconfiguration of Islamic courts by limiting their jurisdiction, diminishing their status, undermining their financial resources, and more seriously, not enforcing their decisions.Footnote 101 Interestingly, Schmeil insisted that limiting the jurisdiction of Islamic and Christian courts to purely “religious matters” (al-qism al-dīnī) was a priority, and that religious courts presented a challenge for the judicial reform spearheaded by British colonial officials. The policy to limit the jurisdiction of Islamic courts was in fact adopted a few months later in the new Khedival procedures for Islamic courts issued on May 27, 1897.Footnote 102
These arguments pursued by British colonial officers and the Egyptian secular legal elite on the jurisdictional authority of Islamic courts are consistently discussed within a binary that (mis)defines the religious (al-dīnī) and secular (al-madanī) domains. Christian, Islamic, and Jewish courts are squarely placed in the al-dīnī category. A recurrent term in Majallat al-Ḥuqūq is the word madanī to indicate the nonreligious (state) law (ghayr al-dīnī).Footnote 103 This term in Arabic conveys a particular value judgment of the place of religion in society. The madanī is not merely a state law enacted by a secular legislator. It is a marker for a civilizing mission and a superior legal progress, as understood at the time. In this framework, what was dubbed al-sharīʿa al-madanīyya (civil law) took priority over religious law (al-ḥuqūq al-dīnīyya).Footnote 104 Salaymeh shows how secular framing of the law dominates Islamic legal studies now, much as it dominated the historical debates around the place of religious courts in the Egyptian judiciary. She argues that “secularism converts legal traditions into religious law.” Salaymeh defines religion as “non-secular” and stresses that the modern category of religion is not “transhistorical, or universal, or neutral.”Footnote 105 I find Salaymeh's framing very helpful for the historical Egyptian context. I suggest that this framing could be more generative by taking into consideration other potential vernacularisms of the secular (al-madanī).
The unification of courts in Egypt materialized after Islamic courts were officially abolished three years after the military coup of 1952. With its nationalist agenda, the coup leaders abolished the constitutional monarchy and established a new republic. On December 23, 1955, a decree was issued to dissolve the Islamic courts, after Gamal Abdel Nasser (d. 1970) launched a defamation campaign against two prominent Muslim judges in Egyptian newspapers. The explanatory memorandum of the Law 462 for 1955, which officially abolished Islamic courts and religious tribunals in Egypt, based this decision squarely on the state's “complete and absolute sovereign power” (siyādat al-dawla tāmma wa muṭlaqa).Footnote 106 This memorandum reveals the radical shifts in the conceptual landscape and the meaning of the Arabic phrases and their intended Eurocentric formations circulating in Al-Sanhūrī's project—such as siyāda (sovereignty), dawla (national state), ummah (nation), sulṭa (sovereign power of the state), and ijtihād (utilitarian reasoning)—from their articulation and manifestations under Ottoman and Khedival governance in Egypt.Footnote 107
At its core, the abolition of Islamic courts in 1955 demonstrated that the emerging position among the Egyptian secular, political, and legal elite ceased to support the existence of Islamic legal institutions and their modes of legal reasoning and practice.Footnote 108 For example, in the 1930s, Aḥmad Ṣafwat Bik (Bey), chief justice of the Appellate Court in Alexandria, opposed the existence of separate religious courts for Jews and Christians. He advocated instead to enact a set of laws to regulate issues of marriage and divorce for non-Muslims within the secular national court system. Ṣafwat also proposed the integration (damj) of Islamic courts into the secular National Courts as a religious circuit (dāʾira sharʿiyya).Footnote 109 On the basis of his confidence in the inevitable shift to legal modernity, Ṣafwat produced a set of arguments and interpretations of history, religion, and law to assert the political and legal complications of religious courts and the urgency of their abolition for the sake of the nationalist legal project.Footnote 110 This development is supported by the logic of civil law that dominated the legal thinking and shaped the structures of Egyptian law. This kind of institutional and theoretical framing of law and legal reasoning in early twentieth-century Egypt not only shaped the emerging legal practice, but also made Islamic courts’ existence unthinkable and their practice impossible.
Civil Law: Transplantation of a Legal System
Al-Sanhūrī was a gradualist. Civil law, for him, opened up the country to a new mode of justice and familiarized its population with a new court system. Al-Sanhūrī's keen interest in French civil law appears to be related to the latter's history and impact in the Muslim world.Footnote 111 He articulated three main reasons why French civil law was more compelling: (1) French civil law differentiated between legislation and jurisprudence as two spheres of law that do not overlap; (2) French code did not adopt rigid positions on legal theories and philosophical schools and avoided redundancy;Footnote 112 (3) the legal language of the French codes is flexible, allowing them to address real life circumstances and their continuous evolution.Footnote 113
In the 1930s, al-Sanhūrī was no longer wedded to the old French code; instead, he was deeply invested in codification as a legal technique that must be mastered and deployed. In 1936, Al-Sanhūrī published another important article on the future of the Iraqi civil code, tellingly titled “Min Majallat al-Aḥkām al-ʿAdliyya ilā al-Qānūn al-Madanī al-ʿIrāqī” (From the Mecelle to the Iraqi civil law). Al-Sanhūrī emphasized the unique significance of the Ḥanafī school and its history and social significance in Iraq and insisted that the shift from the Mecelle to his proposed Iraqi civil law was not an attempt to displace Islamic law and Ḥanafī jurisprudence. He maintained that the proposed Iraqi civil law was new only in terms of its title and asserted that Iraqi civil law already existed in the form of the Mecelle, which needed some improvements to meet the styles and legal form (ṣiyāgha) of new codes at the time. Al-Sanhūrī argued that the Mecelle would benefit from better organization, arrangement, and adjustments entailed by legal modernity. He emphasized the continuity of the proposed Iraqi civil code with previous legal traditions. Thus, he advanced the claim that the new code was both connected to the past and well positioned to meet the demands of the future.Footnote 114
Al-Sanhūrī explained that codification is not a modern movement but a technique that permeates ancient legal traditions.Footnote 115 He cited the examples of the Hammurabi code, Code of Justinian, and church law. Al-Sanhūrī considered the codification movement of the late nineteenth and early twentieth century as the latest phase in the long history of codification. A central theme in al-Sanhūrī's enthusiasm for codification comes down to its potent political utility. In his passionate argument for the promulgation of an Iraqi civil law, al-Sanhūrī maintained that codification is not pursued as a project in itself. Instead, he presented it as an effective legal instrument and a template to imprint with local Iraqi legal traditions and Islamic law. He asserted that it would be imprudent to dismiss the rich legal history of Iraq and transplant a wholesale foreign code, thus living dependent on other nations and pleading to benefit from their traditions.Footnote 116 Al-Sanhūrī saw codification of Islamic law as a purely legal technique that would enable it to exist outside the framework of fiqh. This process, he argued, will keep the status of Islamic law within new emerging legislative and judicial bodies.Footnote 117
Moving to the Egyptian context, al-Sanhūrī saw the historical introduction of civil law in the Mixed and National Courts as a key improvement compared to the state of affairs before its introduction. Restating familiar tropes of some nationalist historians, al-Sanhūrī claimed that the judiciary was in chaos, laws were obscure, and justice was rarely delivered before the introduction of codified law.Footnote 118 In his estimation, the introduction of civil law brought about order and gave Egypt a roadmap to reform.Footnote 119 Unlike jurisprudence—which falls within the domain of legal experts—al-Sanhūrī viewed legislation as an exercise exclusive to the sovereign authority. Thus, a legal command or a ruling, in a strict sense, would fall squarely within the domain of legislation.Footnote 120
The future of Islamic law under government-led intense codification efforts has become a major concern among Muslim judges and intellectuals since the 1920s. One of the most significant arguments for adhering to Islamic law was articulated by Muḥammad Sulaymān ʿAnnāra (d. 1936), a deputy to the chief justice of the Islamic Supreme Court in Cairo. ʿAnnāra gave a series of lectures in 1936, “Biʾayy Sharʿ Nuḥkam?” (By which laws should we be governed?).Footnote 121 The central claim in his lectures is that the laws that have historically governed Egypt were deeply intertwined with local customary practices and specific social conditions. Thus, ʿAnnāra argued that any serious attempt to maintain a sense of nationality (waṭaniyya) among Egyptians requires that any introduction of new laws should be responding to local forms of justice and indigenous legal traditions. ʿAnnāra was not concerned about the similarities among Islamic and Jewish traditions or Islamic and Roman law. He saw such intersections either as evidence that Islamic law had accepted the local practices of people who came under its rule, or as examples of how legal cultures approach questions of society, governance, and authority in analogous fashion. I contend that ʿAnnāra's proposal should be read as a censure of the legal elite's disregard for local traditions in favor of wholesale adoption of European codes.
Future research should explore the understudied and suppressed arguments of the movements opposing the adoption of civil law in Egypt. In 1948, a coalition of fourteen leaders of Islamic and judicial organizationsFootnote 122 sent a letter to King Fārūq I (d. 1965) seeking his immediate intervention to revisit the government efforts to introduce a revised comprehensive civil law in Egypt. The central concern for the signatories on this letter was the sidelining of Islamic law in favor of European codes. More importantly, the letter called for the adoption of Islamic law as the basis of any new civil code in Egypt. This appeal focused mainly on the sources of the proposed law rather than the mode of legal ordering of the justice system.Footnote 123 Furthermore, these critical accounts in the primary sources connect these persistent codification efforts to the Montreux Convention regarding the abolition of the capitulations in Egypt (concluded on May 8, 1937).Footnote 124 A key prerequisite by participating foreign powersFootnote 125 for the abolition of the capitulations was that the Egyptian code (al-tashrīʿ al-miṣrī) must be on par with modern established codes.Footnote 126 This agreement secured a twelve-year transition period in which all foreigners in Egypt would be subject to Egyptian law by October 14, 1949. In short, careful attention to the arguments and actors involved in these debates give us a wider context for the history of codification in Egypt. The contestation of the utility of codification is not simply a technical question, but also an articulation of certain political and legal positions, as al-Sanhūrī consistently maintained.
Conclusion
The contestation of the relationship between dīn and dawla is one of the key cultural rehearsals in modern Muslim political thought—especially after the abolishment of the Ottoman caliphate in 1924. Al-Sanhūrī's theorization of the relationship between dīn and dawla was an attempt to bring about a sense of continuity between Muslim political thought and the emerging nation state apparatus in the Muslim world. The delineation of the domains of dīn and dawla in Egyptian legal history was possible through articulation with existing Islamic jurisprudential distinction between the domains of ʿibādāt and muʿāmalāt. This depiction of the relationship between religion and state enabled al-Sanhūrī to promote and legitimize a political and social order that transforms the relationship between state power, religion, and emerging institutions. At the same time, the nature of this transformation invested new authority within the state to manage and decide on a wide range of issues that were deemed outside of the domain of dīn. The result is a political order founded on a distinction between dīn and dawla that reorganizes institutional structures of governance and grants the political sovereign ultimate power over the religious domain. Al-Sanhūrī's key contribution to this issue is not only that he deployed the distinction between dīn and dawla to theorize a potential rapprochement between the postcolonial state and Muslim political thought, but also how he constructed this discourse.
Al-Sanhūrī rendered the term dīn into the domain of ethics and ritual worship, preventing any connotation of state authority over dīn. However, for al-Sanhūrī, dīn maintained certain normative power in society. Thus, the contestations regarding the realm of dīn in the writing of modern Muslim intellectuals demonstrate the different orientations that underpin the politics of Islamic law in a given society. Al-Sanhūrī realized that the modern nation state is not a neutral entity and needed to be based on philosophical, social, and political traditions of Muslim thought. In this context, for al-Sanhūrī, the state may enjoy certain authority to decide on religious questions that may affect public policy. I concur with the existing scholarship that al-Sanhūrī's engagement with Islamic law in his theorization of a postcolonial Egyptian state should be understood as a manifestation of his nationalist commitments. Because of these nationalist sentiments, the significance of Islamic law, for al-Sanhūrī, lies in the fact that it has been the governing law in Egypt for centuries, with profound social and cultural impact.
Al-Sanhūrī claimed three spheres of continuity in his codification project of the Egyptian civil law: (1) continuity of the postcolonial Egyptian state with Muslim political thought through institutional and constitutional readjustments; (2) continuity of the old civil law—based primarily on French code—with the new civil law, which is a hybrid of Islamic, European, and French code; and (3) continuity of the new Muslim personal status law with the jurisprudential norms of the Islamic legal schools. One way to situate al-Sanhūrī's claims of continuity is to understand their production as part of his continuous repositioning within the emerging Egyptian political and legal order.
The critics of the Egyptian Civil Code focused mainly on three arguments. First, they maintained that the persistent European-modeled codification efforts in the late 1940s were externally imposed—they were among the prerequisites of the Montreux Convention regarding the abolition of the capitulations in Egypt. Second, they argued that the introduction of a new comprehensive code must correspond to local customs and indigenous traditions. Thus, the overriding concern was the sources of the proposed law rather than its mode of legal ordering. And third, they explained that the proposed civil law in Egypt was necessarily a legal transplant rather than an organic process of lawmaking. They asserted that profound legal changes, like the proposed project, can only be rationalized in the aftermath of radical political and military transformation, not simply as a piece of legislation during peace time.
The adoption of codification as a universal legal technique—not a concomitant of European legal modernity—enabled al-Sanhūrī to maintain that the key bureaucratic and structural changes in mid-twentieth-century Egypt were necessarily inspired by local tradition (ʿurf) and Islamic law. They were dubbed essential measures to counter colonial powers and to gain sovereignty over lawmaking. In short, the single most important action by the legal elite in Egypt was the rationalization of the civil code as a legitimate and necessary measure for modernity. The political adoption of the French civil law allowed it to gain hegemonic status and normativity over all local legal traditions.
Acknowledgments
Earlier versions of this article were presented at the workshop “Courts, Religion, and Politics,” organized by Tamir Moustafa and Jeffrey Sachs at Simon Fraser University in November 2016, and at the conference “Uses of the Past in Islamic Law,” organized by Robert Gleave and Omar Anchassi at the University of Exeter in September 2018. I thank Ahmad Atif Ahmad, Ovamir Anjum, Aslı Bali, Guy Burak, Dale Correa, Mohammad Fadel, Omar Farahat, Scott Lucas, Lena Salaymeh, Ari Schriber, and Sohaira Siddiqui for their engagement and comments. All mistakes remain mine.
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