Shari'a, Moral Regulation, and The State

Targeting individuals for their religious beliefs or moral standing is not unique to postrevolutionary Egypt; this also occurred prior to the revolution. In these cases, even though ḥisba might have been at play in the court decision and might have informed the final ruling, often the concept was absent from court documents. The case of Nasr Hamid Abu Zayd, which took place in the mid-1990s, exemplifies both of these phenomena and has been key to the conceptualization of ḥisba both in Egypt's contemporary juridical debates and in Western academic writings on the country.Footnote ⁷ The case began when Abu Zayd, in his capacity as a professor of Arabic language and literature at Cairo University, was denied tenure based on a report drafted by the academic committee assessing his scholarly writings. This committee concluded that Abu Zayd's writings amounted to an insult to Islam and undermined his responsibility as a Muslim.Footnote ⁸ Within a few months of this academic decision, the press got wind of the controversy, which encouraged some individuals to file a case against Abu Zayd and his wife, Professor Ibtihal Yunis, before an Egyptian court. The plaintiffs called on the court to divorce the couple as the husband, in their view, had committed an act of apostasy through his writings and, as a result he could not be married to a Muslim woman. The court divorced Abu Zayd and Yunis after declaring the former an apostate. However, several courts had to hear the case before this decision was upheld and implemented.

The first case against Abu Zayd was brought before the Giza personal status court by six individuals with an Islamist orientation who demanded the judge declare Abu Zayd an apostate and divorce him from his Muslim wife. Their accusations were based on Abu Zayd's critical academic writings on the Qurʾan and sunna, in which the professor argued that Islam should be studied within the context of the social and political events that shaped it and, moreover, that the divine texts should be understood as a product of these events. The plaintiffs argued that Abu Zayd had cast doubt on the integrity of Islam, which rendered him an apostate, and that he should be separated from his wife given that a Muslim woman cannot be married to a non-Muslim man. The plaintiffs provided the court with various fiqh (Islamic jurisprudence) opinions, particularly from the Hanafi school, to substantiate their claims. However, the Giza personal status court of first instance dismissed the case, as it found the plaintiffs had no capacity, that is, no direct interest, in the subject matter of the dispute.Footnote ⁹

The plaintiffs appealed this decision before the personal status chamber of the Cairo appeals court, and in June 1995 Abu Zayd was found to have committed apostasy by his denial of God and the Prophet. Accordingly, the appeals court found for the plaintiffs and ordered Abu Zayd to be separated from his wife. The court rejected the logic of the court of first instance that had judged the plaintiffs to have lacked capacity or direct interest and instead found the claims of the plaintiffs equivalent to the exercise of ḥisba. Crucially, it explained that, given that they were Muslims exercising their duty of commanding right and forbidding wrong, they did have a direct interest in filing the case. The court, after examining excerpts from Abu Zayd's writings, concluded that he had, indeed, insulted Islam and criticized its axioms to an extent that amounted to apostasy. It reasoned, furthermore, that Abu Zayd's writings undermined the public order, as the court considered Islam to be significant to Egypt's public order.Footnote ¹⁰ The public prosecutor and the separated couple appealed this decision before the court of cassation, but the ruling and separation sentence were upheld.Footnote ¹¹ As a result, Abu Zayd and his wife were forced to leave Egypt.

The Abu Zayd case is significant as, among other things, it is one of the few cases in which ḥisba was explicitly cited and used. As the brief summary above shows, the court of appeals based its very logic on the exercise of the duty of the plaintiffs to forbid wrong, that is, to practice ḥisba. In many other cases related to blasphemy, apostasy, censorship, or sexual orientation, although the word ḥisba rarely appears, the logic of ḥisba can easily be detected and seen to shape legal arguments put forward by lawyers and to inform rulings delivered by judges.

Interestingly, some Islamic law scholars and postcolonial anthropologists consider this legal dependence on ḥisba to emanate from the imposition of Western laws on Muslim societies through colonialism and other forms of Western influence. Charles Hirschkind, for example, argues that both Abu Zayd and his opponents were committed to a way of thinking belonging entirely to the modern nation–state, not Islamic tradition.Footnote ¹² Hirschkind notes that Abu Zayd's use of contemporary analytical tools in his analysis of the history of Islamic tradition is a liberal practice of the modern nation-state, and so his analysis is the result of Western influence on Muslim societies. Moreover, Hirschkind posits that the Islamists who opposed Abu Zayd employed the same liberal logic, even if their language highlighted their identity as Islamists.Footnote ¹³ Similarly, Hussein Agrama argues that, although the court and plaintiffs deployed Islamic jurisprudence in the course of litigation, the court's decision to divorce Abu Zayd and his wife was not grounded in shariʿa. Agrama declares that the position of the court hailed, rather, from the Western legal tradition, which has only applied in Egypt since the 1890s, after the British occupation of Egypt.Footnote ¹⁴ For Agrama, ḥisba in premodern Muslim communities was merely an exhortative mechanism of self-care and moral criticism aimed at instilling particular virtues in individual Muslims.Footnote ¹⁵

This understanding of ḥisba as an exhortative mechanism of moral criticism owes much to the copious writings of Islamic law scholar Wael Hallaq. In his impressive oeuvre, Hallaq considers shariʿa in its premodern form as a non-state law and attributes its codified and punitive features to the mode of legislation and adjudication brought about by modernity and Western liberalism. Hallaq argues that in the premodern era shariʿa was not state law, but instead a paradigm of moral customs and communal rules developed primarily by the fuqahā’ (Muslim jurists) who were independent of the state.Footnote ¹⁶ Furthermore, Hallaq states that the main objective of shariʿa was to strengthen and protect communal relations, giving premodern Muslim communities the ability to respond to individual cases, as the state as we know it today did not exist at the time.Footnote ¹⁷ Hallaq attributes the punitive characteristics of Islamic law to the modern nation–state's encroachment on shariʿa; such a state, in Hallaq's understanding, is itself a colonial invention.Footnote ¹⁸ According to this understanding, modern law permeated Muslim societies through colonialism and Westernization, bringing Islamic legal rules under the full control of colonial and postcolonial state bureaucracies. As a result, after living for centuries as self-ruled communities relying on local customs and shariʿa, the role of Muslim communities in handling the moral standing of their members was replaced by the modern, punitive state and its laws, judiciary, and police.Footnote ¹⁹

Agrama's argument also builds on older scholarship that understands restrictions on individual liberties within the rubric of religion as an articulation of the project of the nation–state imposed by colonialism. This older scholarship includes Talal Asad, who argues that the relegation of religion to the private sphere is one of secularism's main characteristics.Footnote ²⁰ This approach has influenced most historians and anthropologists studying the modern Egyptian legal system. For example, in his analysis of the Western origins of Islamic discourse in Egypt's modern legal thought, Leonard Wood states that his book “is more interested in juridical thought and less interested in juridical practice for the simple reason that during the period under study [the 20th century], the practice of Islamic law became nominally limited to matters of personal status, inheritances, and trusts.”Footnote ²¹

Asad denies that ḥisba and shariʿa had a punitive function, stating instead that apart from justiciable matters premodern shariʿa was “blaming, warning, advising, urging, and so on, to encourage friends, kin, and colleagues to act in a praiseworthy way.”Footnote ²² This moral dimension of shariʿa was lost, Asad argues, with the advent of secularism, whose purpose, according to him, was not to separate religion from politics, as the secular project claimed, but instead to place religion under the control of the state so that the state might fulfill its governance function.Footnote ²³ Asad declares that for shariʿa to be transformed from a bottom-up law with minimum state interference into state law it had to be confined to the private sphere of family law. The modern nation–state's domination and governmentalizing start at the level of the family; by dominating the family, the state can dominate the entire society.Footnote ²⁴

Saba Mahmood follows this same line of thought in her study of restrictions on religious conversions in Egypt. Indeed, Mahmood argues against the punitive measures practiced in Egypt for those who convert from Islam, contending that—despite use of religious language by the courts—these measures are not grounded in shariʿa. According to Mahmood, such punishments stem instead from what she calls the liberal legal paradigm, which is derived from Western influence on the Egyptian legal culture. Under this paradigm, the state claims indifference to individual religious beliefs but can still interfere to protect the various manifestations of its sovereign power. This interference, according to Mahmood, primarily occurs under the pretext of protecting the sovereignty of the state's laws and the identity of the majority.Footnote ²⁵ Furthermore, Mahmood correctly states that interference in religious liberties has been key to the application of modern law in all nation–states, not just in Egypt or Muslim societies; for example, upholding of bans on the niqab by the European courts on the grounds of protecting public order and the secular identity of society.Footnote ²⁶ However, legal culture in a Muslim society like Egypt cannot be fully understood by reducing it to merely Western influence, as one cannot wholly discount the influence of shariʿa and the state-building process that preceded colonization.

Asad and his interlocutors make a number of important assumptions about the nature of ḥisba, the premodern shariʿa, and the process of legal reform that Egypt witnessed in the late 19th and early 20th centuries that have informed Agrama's analysis of the Abu Zayd case. These assumptions are, first, that ḥisba, in essence, is a mechanism of moral criticism that is devoid of punitive measure; second, that the premodern state lacked the punitive capacity of the modern state; and, third, that it was the secular project and the introduction of colonial law in Egypt that caused shariʿa to be distorted and ḥisba to acquire such punitive measures as witnessed in the Abu Zayd case. This is why, in Agrama's understanding, the case was examined by the personal status court and not the criminal or administrative court, as the field of personal status law is the only field of modern Egyptian law that is still governed by the principles of shariʿa, all other fields having been restructured and subjected to the logic of the Western civil law tradition.

However, this understanding of the Nasr Abu Zayd case and of ḥisba in premodern and modern times overlooks a number of important facts. To start, the reasons the plaintiffs took the Abu Zayd case to the personal status court are complex, raise many questions about their sincerity, and can not be dismissed by relegation of religion to the field of family disputes.

The Egyptian legal system gives litigants various platforms through which they can exercise ḥisba. For instance, Article 98 (F) of the Egyptian Penal Code allows individuals to file cases against public blasphemous content, which is punishable by imprisonment.Footnote ²⁷ In addition, the administrative judiciary has the authority to order state agencies to suspend the dissemination of any publications considered to be in contempt of religion. For example, in a case linked to censoring books discussing Islamic principles within a broader discussion of Islamic movements, the administrative court ordered al-Azhar (the official religious institution) to scrutinize the books’ contents. This case was not a family dispute, but instead began when an individual filed a petition for the administrative court to order al-Azhar to examine two books on the history of the Muslim Brotherhood.Footnote ²⁸ The plaintiff claimed that al-Azhar had a responsibility to correct any distorted understandings of Islam and argued that these two books contained ideas that could harm the image of Islam. The court accepted the case and, based on the judges’ reading and the plaintiff's argument, ordered al-Azhar to issue a report on how these books depicted shariʿa. Although arguments about the role of the court in protecting the right to freedom of expression were raised during litigation, the court ruled as follows:

Although the proceedings of this case never used the word ḥisba, its logic is evident in the plaintiff's belief that it is his duty to correct the wrongdoings of these books. Akin to the case of Abu Zayd, the court did not consider the plaintiff to be alien to the situation. In his capacity as a Muslim and citizen, the plaintiff was given the right to be part of the dispute; even though the case did not concern his direct interests, the court considered the plaintiff a representative of the Muslim society whose values were allegedly being violated by the publishing of these books.

Furthermore, and more substantially, positing shariʿa as an exhortative non-state law or paradigm of communal moral inquiry in isolation from the state ignores the fact that shariʿa was always under state control in premodern societies.Footnote ³⁰ Although it is correct that premodern and early modern Muslim polities lacked the sophisticated juridical tools of surveillance and domination used by the modern nation–state, this does not mean that premodern Muslim states did not possess coercive legal mechanisms or that they were not concerned with regulating the morality of individuals.Footnote ³¹ According to Agrama's approach, if the Abu Zayd affair had taken place in a premodern Muslim community, he would merely have been rebuked for his writings and urged to conform to the prevalent moral order; he would not have been subjected to trial, exile, or forced divorce. These authoritarian measures, Agrama believes, belong only to the modern state: the public order, rule of law, and liberal legality imposed by the West. According to this narrative, the Abu Zayd case was an instance in which shariʿa was used outside its epistemological origins and shows that shariʿa gained a different meaning after its integration into the apparatuses and institutions of the nation–state, especially the modern judiciary. In this way, Agrama shares Hirschkind's view that the Abu Zayd affair cannot be assessed through the prism of shariʿa.

This understanding of ḥisba as a communal solution independent of the state's coercive means contradicts the perception of ḥisba within the Islamic discursive tradition. For example, in al-Ahkam al-Sultaniyya, the Shafiʿi jurist Abi al-Hasan al-Mawardi (972–1058 A.D.) defined ḥisba as commanding right if its omission has been observed and forbidding wrong if its commission is apparent.Footnote ³² Al-Mawardi mentioned several acts that the muḥtasib should confront, such as abandoning Friday prayers, failing to pay debts, violating rituals enshrined in the Qurʾan and sunna, and placing oneself in a suspect situation such as when a man talks to a woman in an unattended place.Footnote ³³ Crucially, al-Mawardi contended that the primary responsibility for the practice of ḥisba was reserved for state-appointed muḥtasibs. Indeed, al-Mawardi, as a jurist, was himself not independent of the state; he served as an official of the Abbasid caliphate. According to al-Mawardi, the muḥtasib represented the state in regulating morality of individuals in the public sphere.

Furthermore, the ḥisba practiced in the Nasr Abu Zayd case is consistent with the understanding of Abu Hamid al-Ghazali (1058–1111 A.D.) rather than a result of Western intervention. It is well established that al-Ghazali used ḥisba and al-ʾamr bil-maʿrūf wa-l-nahī ʿan al-munkar (commanding right and forbidding wrong) interchangeably. Al-Ghazali stated that commanding right and forbidding wrong was the greatest axis of religion (al-qutb al-aʿẓam fī al-dīn) and its accomplishment the subject of prophetic messages. If ḥisba was neglected, religion would decay, and ignorance and corruption would prevail. Unlike al-Mawardi, al-Ghazali argued that ḥisba was the duty of all Muslims, not only the official muḥtasib.Footnote ³⁴ Al-Ghazali divided the wrongdoings for which ḥisba must be practiced into actions that occurred in markets (munkarāt al-aswāq), actions in the streets (munkarāt al-shawāriʿ), actions in public bathhouses (munkarāt al-ḥamāmmāt), general wrongdoings (munkarāt ʿāmma), etc. Indeed, al-Ghazali stated outright that Muslims should rebuke their fellow Muslims when they commit wrong. This was only the beginning for al-Ghazali; he continued that if wrongdoers would not heed advice, they must be either stopped from continuing their sinful acts or be subjected to physical punishment.Footnote ³⁵

The understanding of ḥisba that comes across in the writings of Agrama and Asad also has no resonance with the way ḥisba was actually applied in premodern Muslim polities, and more recent studies have approached ḥisba in a way that contrasts with the identitarian approach adopted by those postcolonial scholars. For example, Khaled Fahmy and Rudolph Peters look at law in Egypt from a different perspective, by linking various internal factors and historical eras to provide a coherent narrative of the development of the modern legal context. Peters, a scholar of Islamic law, provides archival evidence of the sophistication of the judiciary and legal institutions—born of the necessity to centralize power and make repression less costly and more socially productive—in 19th-century Egypt, six decades before the British occupation.Footnote ³⁶ In the same vein, historian Khaled Fahmy looks at ḥisba in 19th-century Egypt and points to the gradual disappearance of the muḥtasib responsible for monitoring markets and public morals in the premodern and early modern eras. Fahmy argues against the postcolonial approach put forward by Asad and others, which claims that shariʿa was only secularized and integrated into coercive state mechanisms after the introduction of Western laws, asserting instead that shariʿa and ḥisba have always been under state control in Muslim polities.

In 19th-century Egypt, the nature of the state shifted from dynastic rule (centered around the ruler or his household) to a bureaucratic central state with various administrative organs. Fahmy's argument, for which he offers archival evidence, is that this transition took place from within shariʿa, not apart from it. He states that the modernization of the Egyptian legal system before 1883 “had shariʿa as its main reference point, both in terms of legislation and court practice.”Footnote ³⁷ Using the example of food markets, Fahmy points out that the muḥtasib did not really disappear, he was simply replaced in the second half of the 19th century by modern medical and security services responsible for monitoring vendors’ compliance with the public health standards set by the authorities.Footnote ³⁸ Doctors and police officers who toured markets seizing food to check for public health compliance were the new muḥtasibs.

Fahmy observes a remarkable shift not only in the position of the muḥtasib, but in the logic of ḥisba itself: the focus changed from protecting public morals to the preservation of public health.Footnote ³⁹ Moreover, at the level of monitoring compliance with religious and moral standards, the muḥtasib was replaced in the 19th century by the police and city governors, who punished individuals for insulting religion and prevented the dissemination of books containing opinions or information contradicting moral or religious standards.Footnote ⁴⁰ To ensure consistency with shariʿa in legal decisions issued by police and city governors, the Egyptian grand mufti, Muhammad al-ʿAbbasi al-Mahdi, in office between 1848 and 1897, was always involved in cases of individuals who joked about religion or insulted the Prophet.Footnote ⁴¹ This process of abolishing the muḥtasib and transferring the mandate to doctors, police, and city governors was not intended as an abolition of shariʿa, but it did pave the way for the further bureaucratization of juridical agency tasked with regulating morality in the following decades.

Law as a Unifying Social Practice

On 10 September 2014, the Cairo criminal court held a public hearing in the trial of twenty-three defendants charged with participating in an unauthorized protest.Footnote ⁴² The court dedicated the session to examining evidence, including a video the police had found on a defendant's confiscated laptop. The video had no connection to the charges; it only showed the defendant's wife dancing at a private family function.Footnote ⁴³ This incident triggered public outrage against the criminal justice system, which was seen to be shaming activists and damaging their reputation.Footnote ⁴⁴ The airing of this video in open court demonstrates more than just a case of police and prosecutor corruption; it also sheds light on a key characteristic of Egyptian modern law: the frequent questioning of morality and the extent to which individuals conform to the moral characteristics, religious beliefs, and sexual behavior deemed socially acceptable. This trend of questioning individual behavior reflects the main feature of modern law in Egypt, which aims to bring the behavior of individuals in line with the moral standards imposed by the state.

In cases related to religion, conformity of individuals to society's moral codes has frequently been questioned. For instance, in September 2012, a group of Muslim citizens in al-Marj district, in eastern Cairo, protested the publication on social media of what they considered content critical of Islam and Christianity in front of the house of a local Coptic family. A member of the family—Alber Sabir—had posted the content. The angry mob then went to al-Marj police station to report Sabir's wrongdoing. Based on their complaint, the police arrested Sabir, searched his house, confiscated his books, mobile phones, and laptop, and referred him to the prosecutor who, in turn, referred him to the al-Marj misdemeanors court on charges of “insulting Abrahamic religions for the purpose of harming national unity.” Consequently, the court sentenced Sabir to three years in prison, a sentence that was upheld on appeal.Footnote ⁴⁵ In another case, a mother filed a complaint at the police station against her daughter and her daughter's boyfriend; the couple had publicly stated opinions critical of Islam in the al-Sharqiyya governorate, and the mother accused them of blasphemy.Footnote ⁴⁶

In addition, individuals file cases to prompt the authorities to ban some forms of artistic expression that, due to content, claimants feel is critical of specific religious principles. In April 2007, for example, a lawyer brought a case before the administrative court calling for the ban of Ibdaʿ (Creativity), a magazine published by the Ministry of Culture, after it published a poem that described God as a villager feeding ducks, which allegedly defamed Islam and God. The lawyer filed the case against the Ministry of Culture as the sponsor of the magazine, requesting that Shaykh al-Azhar, Muhammad Sayyid Tantawi, provide his religious opinion to the court. In the hearing on 23 October 2007, al-Azhar submitted its opinion:

In April 2009, the court ordered the revocation of the magazine's licenses; the revocation remained in effect until 2015 when the magazine was allowed to resume its activities.

It should be noted that cases of individual personal liberties being obstructed by agents of the state and members of society and cases of censorship imposed on artistic expression in the name of protecting religion are not unique to Egypt or Muslim societies. Historically, liberal Western nations are known to have engaged in similar practices of censorship. For example, in the middle of the 19th century, Britain witnessed intense legal debates over what should be considered normal behavior and what should be criminalized as obscene, which led to legal censorship of artistic works.Footnote ⁴⁸ This repressive attitude was exported by Britain to its colonies in India and Australia, where individuals were referred to court for wearing revealing clothes at certain times and in particular places because it was deemed against public order and decency.Footnote ⁴⁹ Currently, the refusal of some European courts to outlaw the display of Christian figures in the classroom while at the same time banning Muslims from wearing religious clothing in the public sphere reveals the contradictions inherent in liberal claims of secularism, the rule of law, and the neutrality of the state toward personal conscience.Footnote ⁵⁰ These contradictory features of liberal legality have played a role in shaping the Egyptian legal system and its punitive and regulatory features.Footnote ⁵¹ However, although this approach to the impact of colonial and liberal legality is critical of colonialism and Western domination, it neither considers nor gives agency to the influence of domestic factors, including shariʿa, on the modernization of Egypt's legal system. The third section, to follow, addresses the role of local legal culture in the modernization of Egypt's legal system. This section addresses the legal framework governing the ḥisba cases mentioned above.

An analysis of illicit acts that concern the state and society cannot be performed without first exploring the logic of Egypt's Penal Code. The Egyptian Penal Code was initially enacted in 1883 with the establishment of the national courts and has been amended several times since, including two thorough revisions in 1904 and 1937. The key characteristic of this code is its inclusion of provisions that declare certain behaviors as punishable crimes by deeming them breaches of specific legal concepts, including public order, public morals, public decency, national unity, social peace, and public interest. Of the 400 articles in the code, about half are dedicated to criminalizing acts considered harmful to the so-called public interest (al-maṣlaḥa al-ʿumūmiyya), whereas only 122 articles address acts harmful to individual interests. The first set of articles deals with acts ranging from armed activities against the state to publishing content that breaches public decency, and the second set deals with crimes ranging from homicide to defamation.Footnote ⁵² Based on the first set of articles, individuals can be criminally liable for publishing false information if this information is seen to be harming the public interest.Footnote ⁵³ A woman can be charged with undermining public decency if she publishes pictures of herself wearing a revealing dress.Footnote ⁵⁴ Furthermore, individuals can be detained for their actual or perceived sexual orientation.Footnote ⁵⁵ In addition, and according to the Egyptian state's official fatwa body, Dar al-Iftaʾ al-Misriyya (the Egyptian Fatwa House), police can interfere if someone eats publicly in the day during Ramadan, as this is not an act of personal freedom but an assault on the sacredness of Islam.Footnote ⁵⁶

Apart from the Penal Code, the Egyptian legal system contains various provisions for state agencies and individuals to hold to account any person who breaches public order, public morals, public interest, etc. According to Article 25 of Egypt's Code of Criminal Procedures, any individual with knowledge of a crime is entitled to report it to police or prosecutors.Footnote ⁵⁷ On this basis, citizens not only report conventional crimes—such as theft, robbery, or murder—but also are enjoined to report acts that deviate from accepted moral and religious standards. For instance, Alber Sabir was reported to the police by his Muslim neighbors for publishing videos saying that God does not exist. In the videos, Sabir argued that if God existed, he would have listened to the prayers of believers, but he had not, so he did not. Sabir also rejected the idea that God created humans, arguing instead that humans were created from nature. Finally, Sabir asserted that the Prophet authored the Qurʾan, not God, and that Jesus and the Virgin Mary were married. The court that sentenced Sabir to imprisonment found that by publishing these opinions he had committed blasphemy according to Article 98 (F) of the Penal Code. This article calls for up to five years of imprisonment or a fine for anyone who

In arguing his case against Sabir, prosecutor Sharif al-Shaʿrawi stated:

Al-Shaʿrawi was not worried about the threat Sabir's opinions posed to the national unity between Muslims and Christians living side-by-side in the al-Marj district. Instead, the prosecutor had been busy investigating Sabir's faith, integrity, and moral, intellectual, and religious background. During interrogation al-Shaʿrawi asked Sabir, “What did you publish?” Sabir responded that he published information extracted from different comparative studies showing that Islam, Christianity, and Judaism are based on ancient myths. The prosecutor then continued, “How did you reach this conclusion?” Sabir answered that he studied literature on the history of religions. The prosecutor then asked for the titles of these books and ended his interrogation by asking Sabir about his religious beliefs. Sabir objected to this line of questioning, as he thought the subject of the interrogation should be the alleged illegal material acts he was accused of rather than his personal beliefs.Footnote ⁶⁰ However, Sabir's objection swayed neither the prosecutor nor the court. Rather, he was sentenced to three years in prison.Footnote ⁶¹ Sabir appealed this decision and was temporarily released on bail. During this time, he managed to leave Egypt and seek asylum in a European country. In his absence, his sentence was upheld by the appeals court.

In the case of the al-Sharqiyya couple, the prosecutor asked the female defendant if she prayed regularly. When she responded in the affirmative, he asked if she performed all five daily prayers. When she admitted to not regularly performing all five, he ended the interrogation by asking if she suffered any mental illnesses, which she denied.Footnote ⁶²

Criminal courts are not the only places where morality is adjudicated; individuals also can bring cases before the administrative court, requesting that the state act or abstain from acting in a certain manner. Parties must have personal, direct interest in cases they file before the administrative court or join as civil parties. Given that the administrative court's jurisdiction covers the government's administrative decisions, the notion of “personal and direct interest” is related to the wider concepts of public order and public interest. Therefore, private individuals can bring cases calling on the court to reverse administrative decisions that stand against their interests as individuals or as members of specific social groups, such as Muslims, Egyptians, Arabs, lawyers, or teachers.Footnote ⁶³

In the case of the Ibdaʿ magazine's license, the administrative court accepted the opinion of the Shaykh al-Azhar—that the magazine had published content that amounted to heresy—and ordered the revocation of the magazine's license. The court argued that although the constitution protected press freedom, this freedom must be exercised within the scope of respecting the basic foundations of Egyptian society, including religion. The court dismissed the Ministry of Culture's argument that the plaintiff lacked a direct or personal interest in the case, stating that, in the plaintiff's capacity as Muslim and citizen, he had personal and direct interest as the magazine was funded by taxpayers’ money and had published content that insulted the sacredness of his religion. In all these cases, individual Muslims, the police, and judicial institutions can be described as practicing ḥisba against those perceived as expressing divergent views on religion, literature, or even private behaviors. The purpose is to maintain a certain type of social cohesion between individuals and to expunge any nonconforming presence from the public sphere of this imagined coherent paradigm of Muslim society.

Ḥisba from Premodern to Modern Times

Postcolonial scholars such as Hussein Agrama and Saba Mahmood argue that concepts of public order and national unity and the distinction between the public and private spheres are modern inventions of the nation–state, the result of secularization, and have no equivalent in premodern Islamic thought or practice.Footnote ⁶⁴ Agrama in particular tries to illustrate this by pointing to the difference between the rigid system of secular legal institutions and practices belonging to the premodern Islamic tradition. He compares the practices of Egypt's personal status court with the iftāʾ (the giving of a nonbinding opinion on a point of law or religion). Agrama describes the personal status court as full of mutual suspicions between judges and litigants, whereas the practice of iftāʾ is characterized by individuals voluntarily seeking religious opinions on private concerns from muftis who work in institutions belonging to the iftāʾ commission of al-Azhar.Footnote ⁶⁵ Agrama shows that people trust muftis and the practice of iftāʾ more than they trust judges and courts, as the former is a moral platform—not a judicial one—that seeks to provide Muslims with religious opinions to assure them of their compliance with shariʿa in their daily lives.Footnote ⁶⁶ By contrast, he argues that the personal status courts are not concerned with individuals’ moral needs, but with the responsibility of implementing the legal policy of the secular state.

However, in his comparison of iftāʾ and the judiciary, in which solely the former is seen as imbued with morality and ethics, Agrama fails to consider the other roles iftāʾ plays in the legal system. Specifically, he overlooks the authority of the iftāʾ commission of al-Azhar in providing religious opinions in legal disputes. Based on opinions from al-Azhar, courts have ordered the confiscation of books and the revocation of licenses for cultural magazines, as illustrated by the example of Ibdaʿ magazine.

Additionally, the iftāʾ commission of al-Azhar is not the only place where iftāʾ is practiced. Dar al-Iftaʾ al-Misriyya, which is a different institution, provides official religious opinions on public policy and juridical affairs. Far from showing that Islam was relegated to the realm of personal status law, an analysis of the working of Dar al-Iftaʾ al-Misriyya offers a picture of the central role played by religion in the Egyptian legal system. In the case of a man who had converted to Islam but sought to return to Christianity, the court relied on a fatwa issued by Dar al-Iftaʾ al-Misriyya denying him recognition as a Christian on official documents. To elaborate on the limits of religious liberty, Dar al-Iftaʾ al-Misriyya issued a fatwa stating: “Those who embraced Islam voluntarily and without coercion cannot later deviate from the public order of society by revealing their act of apostasy because such behavior would discourage other people from embracing Islam.”Footnote ⁶⁷ This institution also offers fatwas to courts in death penalty cases.Footnote ⁶⁸ Unlike the iftā’ commission of al-Azhar that Agrama chose to study, Dar al-Iftaʾ al-Misriyya is not interested in instilling good virtues in Muslims or helping to maintain their morality; rather, it is concerned with executing the state's legal policy. Agrama sees the simultaneous espousing of religion and state policy to be a result of Western influence after the reformation of the shariʿa courts in 1897, which deprived these courts of jurisdiction over criminal, civil, and commercial matters and limited them to personal status issues. This also is the point he makes when discussing how muftis became subject to state control.Footnote ⁶⁹ However, Agrama's account ignores the fact that the Egyptian state controlled iftāʾ and shariʿa for centuries before 1897. For example, in October 1848, the state appointed Muhammad al-ʿAbbasi al-Mahdi as Mufti al-Sada al-Hanafiyya (the Official Hanafi Mufti) to offer opinions to juridical and administrative bodies on matters of law and shariʿa from the perspective of the Hanafi school, which was considered the official madhhab (school of Islamic jurisprudence) of the state.Footnote ⁷⁰ In 1856, a judiciary ordinance was issued instructing all qadis (judges) of shariʿa courts to consult with muftis on difficult cases to avoid errors in the application of shariʿa.Footnote ⁷¹ In 1873, another decree assigned Hanafi muftis to important administrative and judicial bodies in Egypt; and two years before the British occupation of Egypt, the khedive issued an edict to regulate shariʿa courts (la'iḥāt al-maḥākim al-sharʿiyya), which stipulated that the grand mufti should review all the appealed rulings of the Cairo and Alexandria shariʿa courts.Footnote ⁷² These appointments reflect the state's control of matters of shariʿa and law many decades before the 1897 amendment of shariʿa courts law.

Furthermore, state control of shariʿa to unify its practices was not a 19th-century invention of Egypt's ruling class. Indeed, the Ottoman Empire had controlled shariʿa since the 16th century, instructing qadis to apply the most authoritative opinions of the Hanafi madhhab.Footnote ⁷³ The evolution of the state's shaping of shariʿa began with the Hanafi madhhab being assigned a position above other madhhabs and progressed as the Ottoman Empire established Hanafism as the exclusive reference for legal practices in the 19th century.Footnote ⁷⁴ Moreover, this pattern of state control of shariʿa and its apparatuses, including madhhabs and shariʿa courts, predates the Ottoman Empire. Yossef Rapoport contends that Mamluk sultans maintained legal diversity by allowing individuals to seek litigation before judges belonging to different madhhabs, which made the law more predictable and standardized. This decision, which allowed litigants to resort to the qadi whose madhhab would suit their best interests, was not imposed on Mamluk sultans by jurists or community religious leaders, but was a state policy to enhance the performance of its judicial practices.Footnote ⁷⁵ It is clear that from the Mamluk time until the 19th century shariʿa was not simply a community paradigm or a law that belonged to jurists who were independent of the state, as some Islamic law scholars claim. The fact that the premodern and modern state controlled shariʿa through directing qadis and muftis and regulating their work counters postcolonial scholars’ claims of the correlation between Western influence and the transformation of shariʿa from a communal exhortative paradigm into a coercive central legal system.

Ḥisba and Muḥtasibs in premodern islamic thought and practice

In premodern Muslim societies, local communities enjoyed a margin of autonomy in dispute resolution; when state juridical mechanisms could not satisfy community needs, they could rely on communal solutions. Individuals were able to choose the litigation platform that suited their interests, known as forum shopping or legal pluralism in Islamic legal scholarship.Footnote ⁷⁶ In addition, these communal platforms operated in relative independence from the state and relied on a number of solutions in the solving of legal disputes, such as reconciliation and arbitration rather than litigation.Footnote ⁷⁷ The role of community in regulating the moralities of its members through local networks such as the family and community leaders was a fact. However, contrary to the opinions of some postcolonial and Islamic law scholars who see this communal dimension as the sole characteristic of Islamic law, this communal feature constituted only one part of the broader legal culture of premodern and early modern Muslim societies. Resorting to advice, reconciliation, and other communal solutions did not replace coercive mechanisms, including the punishment and litigation controlled and employed by the state and its juridical features, but rather complemented them. Reviewing the historiography of Islamic law and ḥisba manuals written and applied in premodern Muslim societies confirms this complementarity between the role of the state and the role of the community. This dual character of Islamic law can be detected in contemporary Egypt in the difference between the iftā’ commission of al-Azhar, which offers advice to Muslims on matters of religion when they seek it, and Dar al-Iftaʾ al-Misriyya, which provides state juridical institutions with opinions and interpretations that ensure the conformity of state legal policy with shariʿa, including in matters of criminal punishment and administrative adjudication.

In premodern and early modern Muslim societies, the state was always present to guarantee security and conformist behavior in the public sphere. In his study of legal processes in medieval Muslim societies, Mohamed Fadel shows that, aside from the plurality of legal forums and community mechanisms for litigants, the state acted in a number of ways to intervene in matters of law, crime, security, and order. This included the muḥtasib, the wali al-maẓālim (official in charge of receiving complaints), and the wali al-jaraʾim (crime investigator).Footnote ⁷⁸ Fadel further states:

It is important to see how ḥisba was perceived in premodern Islamic thought and practice. The word ḥisba is not mentioned in the Qurʾan; instead, the Qurʾan contains eight verses calling on Muslims to command right when it is not observed and forbid wrong when it is committed.Footnote ⁸⁰ According to Michael Cook, the debate within Muslim societies regarding the scope of this duty, who should perform it, and who should be its target goes back to the late Umayyad and early Abbasid rules.Footnote ⁸¹ The earliest known text focusing exclusively on ḥisba (not discussing it within the context of other fiqhī [jurisprudential] topics) is Ahkam al-Suq (Market Rules) by the Maliki jurist Yahya ibn ‘Umar (882–901 A.D.).Footnote ⁸² Although Ibn ʿUmar did not employ the words ḥisba or muḥtasib specifically, he did address the regulation of morality in the public sphere, including in the market, the street, and public bathhouses, and Ahkam al-Suq is considered the bedrock for later specialized writings on ḥisba.Footnote ⁸³

In his writings, Ibn ʿUmar was clear that the relevant state authority was responsible for maintaining order in public places. For example, he sometimes referred to this authority as the wali (city governor) and sometimes the sahib al-sūq (market governor). He stated that the punishment for violating the rules varied from preventing the wrongdoer from entering the place where the wrongdoing was committed, to damaging the tools used in the commission of the wrongdoing, to beating the wrongdoer as a punishment for the act. Ibn ʿUmar's prohibited acts included attending wedding parties where alcohol was offered and musical instruments were played.Footnote ⁸⁴ He stated that women could not attend public bathhouses unless they were ill or in their postpartum period, and that men at these bathhouses must wear towels. If these rules were violated, Ibn ʿUmar called for the person in charge of the bathhouse to be punished at the discretion of the ruler and declared that men who attended such bathhouses without wearing towels could not testify in court.Footnote ⁸⁵ In addition, women were prohibited from wearing squeaky sandals in the street because this could attract men's attention; those who violated this rule would be beaten and have their sandals cut.Footnote ⁸⁶

Ibn ʿUmar did not formulate his rules from abstract thought, but according to the social relations in the North African city of Kairouan, where he resided. Kairouan's market governor once asked Ibn ʿUmar how Christians and Jews who wore clothes resembling those worn by Muslims should be treated, and Ibn ʿUmar answered that they should be beaten, imprisoned, and paraded in Christian and Jewish neighborhoods as a deterrent to others.Footnote ⁸⁷ However, Ibn ʿUmar dedicated most of his rules to the appropriate punishments for merchants who cheated when weighing or in the contents of the food or drink they sold in the market. Apparently, Ibn ʿUmar's focus on the market stemmed from the fact that this was the public place most attended in Kairouan; this was where the majority of interactions that broke the community's moral norms occurred and therefore required regulation.

After Ibn ʿUmar's treatise, al-Mawardi's al-Ahkam al-Sultaniyya was the next text that addressed morality in the public sphere in premodern Muslim societies under the explicit rubric of ḥisba. In this book, al-Mawardi explained ḥisba in relation to the state's authority and coercive measures for maintaining social order, clearly distinguishing between wali al-maẓālim, qadis, and muḥtasibs.Footnote ⁸⁸ He defined wali al-maẓālim as the person who forces two conflicting parties to reach reconciliation through arbitration when a judicial settlement cannot be reached. To carry out this task, the wali al-maẓālim relied on his prestige and the respect and fear he engendered within his community.Footnote ⁸⁹ By contrast, qadis were those whom individuals approached to help redress grievances; they considered various circumstances to reach the truth in the cases under their examination. Qadis were to treat people with a certain degree of leniency, as their job was to achieve justice beyond the forbidding of wrong or commanding of right. Finally, muḥtasibs fell in the middle between the wali al-maẓālim and qadis. Whereas muḥtasibs could deal with apparent wrongdoings without receiving a complaint, qadis could not hear a case in the absence of a plaintiff or defendant. Furthermore, in dealing directly with alleged wrongdoings, muḥtasibs had to maintain an image that instilled fear in people, akin to the wali al-maẓālim.Footnote ⁹⁰

Al-Mawardi contended that muḥtasibs were allowed to punish wrongdoers by taʿzīr (discretionary punishment), which gave the ruler the power to punish illicit acts not explicitly mentioned by the Qurʾan.Footnote ⁹¹ Appointed muḥtasibs also could employ assistants to help implement their duties. According to al-Mawardi, volunteers did not have access to such powers, implying that ḥisba was primarily a state responsibility.Footnote ⁹²

In Ihiyaʾ ʿUlum al-Din (The Reviving of Religion's Sciences), Abu Hamid al-Ghazali highlighted ḥisba as a coercive practice that forced individuals to behave morally in the public sphere. According to al-Ghazali, the reactions of Muslims to a right not observed or a wrong being committed had different stages, beginning with identification of the wrongdoing without spying on the person subjected to ḥisba unless two people told the muḥtasib that wrong was being committed in a closed place.Footnote ⁹³ Second, the muḥtasib should inform the person of the wrong they were committing in case it was unknown to them. Third, the muḥtasib should advise the wrongdoer and intimidate the wrongdoer with the divine punishment that awaited if that individual did not abandon these actions. In such cases, the person practicing ḥisba must not show religious knowledge arrogantly, but modestly and kindly, otherwise he could not practice ḥisba. Fourth, if the wrongdoer ignored advice, the muḥtasib could use insults and rebuke (al-sabb wa-l-taʿnīf). Fifth, the muḥtasib could change the wrong by “hand” or action, including breaking the tools used to commit the wrong or spilling the forbidden drink. Sixth, the muḥtasib could beat the wrongdoer without weapons. Finally, and as a last resort, the muḥtasib could invoke an armed group to command right or forbid wrong.Footnote ⁹⁴ In his ḥisba treatise, the Andalusian jurist Ibn ʿAbd al-Raʾuf (d. 1032 A.D.) stated that the role of the muḥtasib revolved around maintaining moral order in matters of worship and commercial transaction.Footnote ⁹⁵ Ibn ʿAbd al-Raʾuf contended that the role of the muḥtasib went beyond regulating morality in the public sphere and included matters of a purely religious nature, such as praying, fasting, zakat, and funerals.Footnote ⁹⁶ For instance, if a man refrained from paying zakat, he should be asked to pay, and the muḥtasib should incite people in need to ask him to pay.Footnote ⁹⁷ In addition, Ibn ʿAbd al-Raʾuf outlined that the muḥtasib should stop men and women from praying together in the mosque; male beggars should be deterred from entering the women's area of the mosque unless they were old and known to be pious, and female beggars should be forbidden from entering the men's area under any circumstances. In such cases, the muḥtasib should first warn the person violating the rules and, if the concerned person did not obey, then beat him or her.Footnote ⁹⁸ Regarding commercial transactions, Ibn ʿAbd al-Raʾuf mentioned many examples of when and how the muḥtasib should punish merchants who cheated when weighing, on the contents of the food or drink they sold, or on the price.Footnote ⁹⁹

Continuing with ḥisba treatises focusing on markets and commercial transactions, the Syrian jurist and judge ʿAbd al-Rahman al-Shayzari (d. 1193 A.D.) wrote the most famous manual on the subject, Nihayat al-Rutba fi Talab al-Hisba (The Highest Rank in Ḥisba). This work was written at the request of a newly appointed muḥtasib who required a text bringing together the most important rules of ḥisba. Al-Shayzari divided the manual into forty chapters, thirty-five of which addressed practicing ḥisba in the market. In these chapters, he offered detailed instructions regarding cheating, weighing, prices, and tricks used by merchants to deceive buyers. The five remaining chapters focused on the characteristics of the good muḥtasib, ḥisba against non-Muslims, and ḥisba in public bathhouses.

In the Egyptian context, the Shafiʿi jurist known as Ibn al-Ukhuwwa (1250–1329 A.D.) drew on all the above-mentioned sources in his treatise, Maʿalim al-Qurba fi Ahkam al-Hisba (Features of Kinship on the Rules of Ḥisba), in which he offered a detailed explanation of commanding right and forbidding wrong.Footnote ¹⁰⁰ Following al-Mawardi's methodology, Ibn al-Ukhuwwa stated that there were three types of rights that were subject to ḥisba: ḥuqūq Allah (claims of God), ḥuqūq al-ʿĀdamīn (claims of men) and mā kana mushtarakan bayna al-ḥaqqayn (rights that concerned both God and men). Regarding claims of God, Ibn al-Ukhuwwa outlined that muḥtasibs should punish those who ate during the day in Ramadan if they had no legitimate reason to refrain from fasting. Indeed, Ibn al-Ukhuwwa stressed that practicing ḥisba with regard to fasting was a very important deterrent for others.Footnote ¹⁰¹ In addition, contact between men and women was punishable under certain circumstances, such as when a man talked to a women or looked at her without legitimate reason, or if a man harassed a woman. In such cases, the muḥtasib should punish the man by taʿzīr. Footnote ¹⁰² Furthermore, the muḥtasib must immediately interfere in matters considered to be claims of God; however, in matters related to claims of men (for example, debts), the muḥtasib could not interfere without a request from the one wronged, such as the creditor requesting help to regain the money from the debtor.Footnote ¹⁰³

In Mamluk Egypt, sultans appointed muḥtasibs to inspect markets and monitor the behavior of merchants. According to Kristen Stilt, muḥtasibs in Cairo markets had a stand (dikka) from which they observed and whipped those who cheated when weighing their goods.Footnote ¹⁰⁴ Muḥtasibs were instructed to parade cheaters publicly as punishment and, at the same time, to deter other merchants from cheating. Indeed, muḥtasibs had detailed manuals to guide them in carrying out their duties, including information on merchants’ tricks. Footnote ¹⁰⁵

From the above brief analysis, one can detect three common features shared by all ḥisba treatises, from Yahya ibn ‘Umar to Mamluk Egypt. First, the public sphere, that is, the market, street, mosque, bathhouse, or funeral, was the main spatial focus of ḥisba. Second, although the muḥtasib was urged to first advise the wrongdoer to cease the reprehensible act, in most instances he also was authorized to use physical force against the individual. Third, the aim of a ḥisba punishment was not only to correct deviant behavior in one individual, but also public deterrence. It also should be noted that review of the treatises of Ibn ʿUmar, al-Ghazali, and Ibn ʿAbd al-Raʾuf illustrates that the idea of communal moral criticism against deviant behavior in the public sphere did exist. This exhortative dimension of ḥisba can be inferred from the advice given to the wrongdoer as a first response by the muḥtasib. However, this friendly advice coexisted with the infliction of punishment in cases of disobedience. This premodern understanding of ḥisba aimed to prevent wrongdoing through any means, including resorting to coercive tactics, which stands in stark contradiction to Agrama's contention that violence in the application of ḥisba in modern Egypt is an invention of the nation–state.

The fact that ḥisba was a coercive measure in premodern Muslim societies does not mean that it has survived for centuries without change. In the next sections I will clarify the shifts that took place in the concept and practice of ḥisba after the modernization of the Egyptian legal system in late 19th and early 20th centuries.

First, it is helpful to understand the relationship between ḥisba and other legal mechanisms, such as qaḍāʾ (adjudication), in premodern Muslim societies. In practice, the boundaries between the jurisdictions of qaḍāʾ, ḥisba, and maẓālim differed and overlapped over place and time. The difference between acts handled by qadis and those that fell under the jurisdiction of muḥtasibs is that the former were crimes and disputes that required strict procedures and had a certain threshold the criminalized act must reach and clear evidentiary requirements, especially witnesses and confession. Qadis dealt with crimes defined by the Qurʾan and sunna, that is, ḥudūd crimes (sing. ḥad) such as theft and adultery. On the other hand, muḥtasibs were instructed to deal with offenses that did not reach the threshold of crime. This difference between crimes and less serious offenses can be inferred from comparing how Islamic law determined legal actions against adultery with the response of muḥtasibs to suspicious behaviors by women and men in the public sphere. As noted above, Ibn ‘Umar banned women from attending public bathhouses unless they were ill or in their postpartum period. He also forced men to wear towels while in bathhouses. Women were banned from wearing squeaky sandals that would attract men's attention. In the same vein, al-Mawardi stated that the muḥtasib intervenes when a man talks to a woman in an unattended place. These acts by men and women did not belong to the ḥudūd category of crimes. However, and according to the logic of al-Mawardi and Ibn ‘Umar, if these women and men were left to behave as they pleased without intervention, they would be seduced to commit more serious acts that reached the threshold of crime, such as adultery. This space of less serious offenses than crime defines the role of the muḥtasib.Footnote ¹⁰⁶ It is sufficient for the muḥtasib to see any man or woman in one of the above-mentioned situations to intervene. However, in the case of adultery the matter is completely different. According to al-Mawardi, the authority responsible for trying such crime cannot hear the case unless the defendant describes in detail what happened during intercourse, and the defendant's description must meet the shariʿa definition of adultery for the ḥad punishment to be applicable. If the defendant denies the deed, there must be witnesses who meet certain requirements, otherwise the act under examination by the qadi does not amount to the crime of adultery punishable by ḥad. From this perspective, Fadel notes that procedural restrictions on the practice of qaḍāʾ gave muḥtasibs broad discretion to deal with acts that fell outside the jurisdiction of qadis.Footnote ¹⁰⁷ Although these were minor infractions compared to the crimes of theft, adultery, or homicide, they were more numerous, and intervention by muḥtasibs did not need to be justified by restrictive procedures.

Ḥisba in 19th-Century Egypt

The muḥtasib in Egypt survived until the 19th century. The practice of ḥisba was employed by Mehmed Ali (r. 1805–49) to control prices and the quality of goods and commodities. To understand how the ḥisba institution developed during the Pasha's rule, consider the juridical scene during this era. The early efforts of Mehmed Ali to codify law is evidence of the state's focus on the public sphere, including public order, public money, and public officials. Indeed, all of Mehmed Ali's legislative orders are classified as siyāsa codes in the historiography of Egypt's 19th-century legal system. Siyāsa is an Islamic concept that refers to the ruler's right to employ his own discretion in taking certain administrative or legal actions when faced with a judicial matter that cannot be appropriately handled through fiqh.Footnote ¹⁰⁸ Mehmed Ali established new judicial entities called siyāsa councils that were responsible for applying these new codes. The siyāsa councils served a number of purposes: dealing with legal matters that could not be resolved in shariʿa courts for lack of a legal framework; overcoming obstacles related to the strict evidentiary requirements of shariʿa that relied primarily on witnesses and confession; and allowing the state to maintain public order through its power to sanction.Footnote ¹⁰⁹ However, according to Khaled Fahmy, siyāsa councils were not secular entities that marginalized shariʿa; rather, they were Islamic legal forums that exercised taʿzīr, giving the state discretion beyond the limited legal resources of shariʿa courts. Within this dual system of siyāsa councils and shariʿa courts, ḥisba belonged to the siyāsa, as it was within the state's purview to maintain social order.

It should be noted that the position of the muḥtasib was affected by social and bureaucratic changes during the 19th century. In 1830, Mehmed Ali issued a law on price setting that limited the power of muḥtasibs to act according to taʿzīr; this law outlined fixed punishments for merchants who charged more than the state-authorized prices.Footnote ¹¹⁰ Prior to this, muḥtasibs in Cairo could use their own discretion to determine punishments. Between 1816 and 1817, the muḥtasib decreed that merchants who price gouged be punished by piercing their noses and hanging the overpriced commodity from the nose.Footnote ¹¹¹ In 1835, Mehmed Ali issued a law imposing even further restrictions on the power of muḥtasibs to punish wrongdoers by limiting corporal punishments to a maximum of fifty lashes, thereby eliminating the broad discretion muḥtasibs had previously enjoyed.Footnote ¹¹²

In 1837, Mehmed Ali issued a siyāsa code that completely abolished the muḥtasib offices in Cairo and Alexandria and transferred their duties to police and the health administration in the two cities.Footnote ¹¹³ Then in 1841 he issued a new decree, this time to deal with the outbreak of plague in Alexandria. This decree confirmed transfer of the duties of the muḥtasib to physicians and the police, reducing the muḥtasib's role to merely informing on incidents related to the application of the decree.Footnote ¹¹⁴ Another important development was the shift in the focus of ḥisba from monitoring public morals in markets to public health and hygiene.Footnote ¹¹⁵ To support these claims, Fahmy provides archival evidence that the Egyptian public health system witnessed comprehensive development in this time. Such developments included the establishment of the Qasr al-‘Ayni chemical-pharmaceutical lab, which coordinated everything related to drugs, chemicals, and the investigation of food quality. The Department of Health Inspection of Cairo, along with its ten offices, worked alongside the lab and provided a monitoring system through its doctors, who toured the city checking on the cleanliness of the streets, the disposal of refuse, and the quality of food. Police toured with these doctors, providing them with the force necessary to implement their mandate; for example, seizing samples of suspect food.Footnote ¹¹⁶

The marginalization of the muḥtasib role in 19th-century Egypt was not a result of the abolition of shariʿa, but instead due to social developments, including the expansion of Cairo and the increase in commercial transactions that rendered the traditional role of the muḥtasib insufficient.Footnote ¹¹⁷ The value of muḥtasibs who knew their neighborhoods well and could obtain information about wrongdoings in markets through small social networks became redundant. The duties they had performed were not lost, but instead bureaucratized and integrated into the new state administrative system that included physicians, chemists, police, the grand mufti, and city governors.

Moralities of Criminal Law in the Late 19th and Early 20th Centuries

In 1883, new national courts were established and the siyāsa councils’ jurisdiction over criminal and administrative matters was transferred to these new courts: a move that can be seen as the final stage in the development of Egyptian law and served to usher in the legal system still operating today.Footnote ¹¹⁸ The new courts imposed their jurisdiction over all criminal, civil, commercial, moral, and administrative legal disputes.

The current Egyptian Penal Code, Law no. 158 of 1937, is based on the first comprehensive penal code issued in 1883, which was amended in 1904. These codes criminalize acts of defamation of religion and acts against public decency, public interest, and public order. The way in which these codes textualize the criminalization of such acts is interesting. Although the 1883 Penal Code criminalizes acts that breach public decency through Article 256, we find that Article 245 criminalizes the sale of contaminated food, drink, or medicine harmful to public health. This raises questions about the relationship between public decency and the sale of food and drink. The relationship becomes clearer in a later section of the code that deals with contraventions punished by fines and short-term imprisonment. This includes contraventions that occur in certain places or against certain interests or individuals, including contraventions on highways, against public safety and tranquility, against public health, against public decency, against public authorities, and in the marketplace. Article 341 of this section prohibits putting items on the road that would bother pedestrians and punishes those who use sick animals for transportation or burden them with heavy weights; Article 348 fines those who sell perished food or drinks; and Article 350 punishes those who appear in the public thoroughfare wearing clothes not in line with public decency, who wash in the public thoroughfare wearing these clothes, or who are caught in a state of drunkenness. This section of the 1883 Penal Code deals not only with reprehensible acts committed in violation of rules established to maintain the public sphere, but also with abstaining from necessary acts. For instance, Article 343 outlines a fine of up of to 75 piasters for those who are able to but do not help in cases of drowning, fire, flood, robbery, and the like.

Upon close inspection, these provisions illustrate that the essence of ḥisba is retained in modern Egyptian law, as the penal and moral dimensions of law are interwoven into one code. The idea of criminalizing acts that violate public decency or morals is not merely aimed at eliminating controversial behavior, such as drinking alcohol in public; rather, this prohibition is entangled within a wider moral system. Offering help to a drowning person carries the same weight and responsibility as refraining from wearing revealing or indecent clothing in public spaces. This moral dimension of criminal law is not free of coercion, as it subjects individual morality to criminal trial and punishment.

This is not a system imposed on Egypt by Western liberalism; it is derived from shariʿa. It should be noted that although many scholars have argued that the 1883 Penal Code was derived from the French Napoleonic Penal Code, Philippe Jallad in his comparison of the two shows that most provisions that deal with contraventions were not, in fact, influenced by the French code, unlike the provisions in the felonies and misdemeanors sections.Footnote ¹¹⁹ Consider the section including Articles 328 through 347 of the 1904 amendement on the 1883 Penal Code. Of these twenty articles, only seven were influenced by the French code; the remaining thirteen were introduced by the Egyptian legislature. Moreover, these thirteen articles bear an uncanny resemblance to the spheres where ḥisba should be applied according to al-Ghazali's Ihiyaʾ ʿUlum al-Din, namely, actions that occur in markets (munkarāt al-aswāq), actions in the streets (munkarāt al-shawāriʿ), actions in public bathhouses (munkarāt al-ḥamāmmāt), and general wrongdoings (munkarāt ʿāmma).

The penal codes of 1883, 1904, and 1937 involved criminalizing acts previously under the purview of muḥtasibs. From 1883, newly established national courts superseded the muḥtasib in applying these codes and, in turn, judges became responsible for examining cases that involved breaches of public decency, defamation of religion, cheating related to food and drink, and other wrongdoings that were the target of ḥisba prior to the abolition of the muḥtasib office. The inclusion of the rules of ḥisba in the 1883 Penal Code was an important step in the history of modern Egyptian legislation. From that moment onward, ḥisba played a central role in the transformation of reprehensible acts to crimes investigated by the police and prosecutors, punished by codified laws, and tried by judges. The role of private individuals who bore the duty of commanding right and forbidding wrong according to the premodern understanding of ḥisba also witnessed change under the modern Egyptian legal system. Private individuals can still bring before the criminal and administrative judiciary claims against fellow citizens suspected of committing acts in violation of certain religious or moral standards or claims against government decisions perceived to deviate from shariʿa. However, whereas the court in Nasr Abu Zayd's case understood the plaintiffs’ claim to emanate from a Muslim's duty to command right and forbid wrong, in other cases, especially those examined by the administrative judiciary, this duty is not the threshold that determines if the court accepts or dismisses the claim. In December 1997, the Supreme Administrative Court delivered its decision in a case filed by an Islamist plaintiff against the Ministry of Health regarding a decision issued by the latter prohibiting female genital mutilation in public and private medical facilities and criminalizing the procedure if it was conducted by non-physicians. The claimant argued that female circumcision was a religious ritual and that its abolition violated Article 2 of the Egyptian constitution, which stipulates that shariʿa principles are the main source of legislation. The court dismissed this substantive argument on the ground that the decision did not violate a universally recognized rule of Islamic law, given that female circumcision, although recognized as a meritorious act by some traditional Islamic law scholars, is not given the same importance by other scholars. However, the court did not dismiss the right of the plaintiff to challenge the decision in the first place. The court did not perceive the plaintiff as a Muslim who bore the duty of commanding right and forbidding wrong, but as a Muslim who had the right to know if Egyptian law permits or prohibits female circumcision.Footnote ¹²⁰ This shift from the concept of commanding right and forbidding wrong to the concept of a Muslim's right to challenge certain legal developments because of their inconsistency with shariʿa does not mark a discontinuity in the Islamic tradition of ḥisba, but rather reflects the reconfiguration of this tradition within the modern Egyptian legal system. This reconfiguration is not a result of the Egyptian state's abandonment of shariʿa, but a consequence of its tendency to reconcile the premodern Islamic legal tradition with the exigencies of modernity and power centralization.Footnote ¹²¹