Sānhūrī’s Reformulation of the Islamic Calīphāte
In this regard, the dilemma that Sānhūrī was facing on a modern calīphāte was how to intermediate between local proclamations of sovereignty and the global demands of law. Sanhūrī thought that the peaceful progress of Eastern – Muslim – folks was not only endangered by imperialism – which it was – but also by the spectre of both religious liberalism and nationalist radicalism.He believed that a restructured system of Islamic law in both the domestic and global arenas could ward off both dangers. In Sānhūrī’s reformulation of this concept, it would serve as an international organization – of Muslim nations – rather than a supranational state, an acknowledgement of the legitimacy of self-determination of individuals as an unifying principle for the exercise of political power at the domestic level. Moreover, he argued that the law places bounds on what are genuine exercises of self-determination, hence limiting the authority (power) of “the people.” Thus, his vision of the calīphāte was dedicated to both the sovereignty of the certain persons that make up the māshrīq Islamic world (the East), and the sīyyādāt ālqānun (rule of law).Accordingly, admission to the League of Eastern Nations (new caīlphate) – as proposed – was conditional on two important rule of law obligations.The first was that it would apply a properly rationalized modernized body of Islamic law, and the second was its submission to the binding jurisdiction of an international “eastern” māḥkāmāt ʿadl shārqīyyā (court of justice).
While some have proposed that Sānhūrī’s vision of the calīphāte stimulated the formation of the Organization of Islamic Cooperation (“OIC”), its charter stresses, recurrently, the sovereign independence of its members, and their dual commitment to non-interference in the member’s internal affairs. Given the recent disastrous conflicts among Muslim nations, it is catastrophic that the member states of the OIC have not had the courage to follow Sānhūrī’s proposal and identify that the most vital commitment of Islamic law is the peaceful resolution of disputes according to law. Therefore, excavation and critique of contemporary notions of sovereignty in the Arab world are critical first steps toward building a more peaceful international order in the Muslim world.
a. Tracing Shārīe‘a (Islamic) Law in Egypt: al-Islām wā Uṣūl al-Ḥūkm
A specific line of arguments has long conquered discussions about ʿAbd al-Razzāq al- Sānhūrī (d. 1971), civil code, and Islamic law in modern Egypt. A mutual problem with these prevailing actions of modern Egyptian legal history is the hypothesis that Islamic law became an influential formative source of legislation only upon the ratification of Article 2 in the 1971 Egyptian constitution, which reads that “principles of Islamic law are the prime source of legislation.”This so-called Shārīeʿa (eternity/repugnancy clause) Article in the current 2014 constitution seems to be observed, specifically in intra-Egyptian discourses, as a crisis moment in which Islamic law is (re)inscribed in the Egyptian legal and constitutional order. However, this description ignores the fact that most Egyptian constitutions – including the 1923 constitution, art. 149 – have stated that “Islam is the religion of the state and Arabic is its official language.”
The Sānhūrī Islamic normative categories were central to the articulation of a secular political order in Egypt. He relied upon the Islamic classical legal distinction between ʿībādāt (worships) and muʿāmalāt (transactions) within the Islamic jurisprudence as the medium to ease these midpoints between dīn wā dāwlā (religion and state).It should be noted that the objective of al-Sānhūrī’s legal reform (scholarly work), was institutional secularization to articulate a political order, a theory of a state, in which Islamic law could play a crucial role in theorizing its institutions and forging its legal order.
b. Islam Is “Dı̄ n wā Dāwlā”: Al- Sānhūrī Theory on Shārīe‘ā Law
Al-Sānhūrī – the founding father of the Egyptian civil code – theorized a relationship between the calı̄ phāte and al-dīn wā dāwlā fī Islām (religion and state) in a farmed modern Islamic legal system. He proposed a bond between the Islamic legal practice, Franco-Egyptian law, and the evolving Egyptian state institutions, wherein the domain of dīn was purposely kept outside of state authorization. Further, he argued that the postcolonial Egyptian government inherited aspects of the Ottoman caliphal authority that permitted it to assume the power to regulate religious legal rules for Egyptians.Hence, in the mid-20th century the recalibration of the sovereign authority of the evolving Egyptian nation-state was offered as an extension of the sı̄ yāsa sharʿı̄ yya (discretionary power of the political ruler), or at least can be fruitfully consistent with Sunnī political thought.
c. Al-Sānhūrī Modern Islamic Government: “Islamization” of Egyptian Law
Sānhūrī argued that since Muslims have a law, then they should have an Islamic government, and envisioned a modern Muslim government to includes three branches: legislative, executive, and judicial. On the legislative authority, he stressed that God is the legislator; however, God’s orders and bans can only be known through revelation (prophets).To Sānhūrī, the Qurʾān encompasses God’s will (and His message to His servants).Consequently, the Qurʾān should be the first source of legislation along with the Sūnnāh (Mohammed’s teachings) – that explains the Qurʾān – should be the second source of law. As daily personal affairs subject to change, and following the end of revelation with the Prophet’s death, he argued that it is vital for Muslims to develop a third source of legislation that would guarantee rules governing Muslim’s daily lives are suitable for each time/place. This third legitimate source is the ījmā (consensus of the Muslim scholars/community) on a certain question of law (or fact).
Regarding the executive power discourse, he stated that the executive authority in Islam is the government: specifically, a ḥukūmāt al-khilāfa (Cālīph-led government). In this government, (a) the Cālīph is not just a political ruler, but also the Muslims’ religious leader; (b) the Cālīph should adhere to Islamic norms not to a specific legal school and his authority should be recognized by the Muslim world. As a mūjtāhīd, he has the capacity to consider time changes, places, and circumstances, and can ask the independent jurists to agree on a māṣlāḥā for the community’s benefit. Practically speaking, having one Cālīph that Muslims can develop a single united government seems to be impossible, and thus, that Muslim governments might reach an agreement to form a League of Muslim Nations to lead local Muslim governments. For the judicial authority, he stated that it used to be part of the executive. The Cālīph used to combine both authorities (hires and fires judges and could adjudicate some issues himself).
Sānhūrī’s Secularism: Within the likely reconciliation between Islamic law, its historical institutions, and the evolving Egyptian modern nation state apparatus, Sānhūrī theorized a linkage between the modern state and Islamic law, where both religious and state matters are the exclusive domain of Muslim theologians.
Sānhūrī stressed the indispensable role of Islam in any form of political governance in Muslim cultures, declining ʿAlī ʿAbd al-Rāziq’s statements on cālīphāte) and underlined the significance of Muslim political solidarity.Also, in early 20th Century, he alters the calīphate’s description by installing its inherent power for a collective political order among Muslim ummāh(s). As a true Cālīph (sole locus of authority and legitimacy), it is through its will and emancipatory politics that Muslims can launch political establishments that can endure their objectives for unity and reinforce their resilience for independence.Additionally, he proposed a codified Islamic law (distinction between public and private law). He laments the lack of rules that administer the principles of political legitimacy in Islamic jurisprudence by accusing the autocratic governments and underscores that the goals of these governments were to defeat any juristic actions that would create political rule on the principles of political freedom and democratic public rights. In other words, he developed a theory of political legitimacy that goes beyond the classical fīqh, which was restricted in its scope to the mere genuine exercise of power.
d. Rehash: The Islamic Courts – Unification: Colonial Dogma or Nationalist Ambition
Sānhūrī made some adjustments (argument’s restatement) concerning the role of Muslim fūqāhā (scholars) and Islamic legal institutions in the evolving Egyptian state. He called for a complete codification of the al-tāqnīn al-kāmīl (entire legal domain) and for the codification of all areas of law and asserted that it should be a comprehensive code just as any other Western (European) civil code. He underscored that in the process of this codification, personal status (family) law would not borrow from al-tāshrīʿāt al-ghārbīyya (Western legislation), arguing that the al-tāshrīʿal-jādīd (new legislated code) would be based merely on al-sharīʿa al-Islāmīyyā (Islamic law).He introduced a caveat that the anticipated new code would be made appropriate to apply to all Egyptians (Muslims and non-Muslims), in their commercial and family laws. He maintained that such an incorporated legal code would respect all religious beliefs and would not violate them, and the norms that would be codified from the Shārīeʿā should be sensibly designated so that they can be applicable to all Egyptians (and if necessary, a codification of specific rules [values] to be applicable only to non-Muslims should be formulated to fill any gaps). However, he made sure that the judicial “integration” of all courts/tribunals is the demand of every nationalistic Egyptian who seeks for judicial reform as a necessary process.
Further, he confirmed that the purpose of integrating/codifying Islamic family law was not to sideline the authority of the Shārīeʿā; instead, he emphasized that such codification would be an extension of it not only to personal status matters but also to business transactions within the civil law. He declared that it is an inaccurate impression to preserve that Islamic law – codifying Shārīeʿā is not problematic – can be found only through the discovery process in authoritative Muslim jurisprudence, especially those based on Ḥānāfī jurisprudence.He argued that Egyptian lawmakers had already codified some of the Islamic procedural norms and contended that in rewriting process of the Egyptian civil law, the drafters should select from the most appropriate positions from the Islamic legal norms, without following to a particular school of jurisprudential thought, to achieve a comprehensive legal reform.Sānhūrī reliably compared his project for a unified civil code to similar efforts in France and Italy as an expression of their sovereign national will and a process to evade fights and clashes among various legal bodies within the country.Professor Leonard Wood argues that Sānhūrī’s Maṣādir al-Ḥaqq fī al-fiqh al-Islāmī was the “material adjustment of the theory and methods of Islamic jurisprudence in the modern era” and claims that Sānhūrī comprised the role of an independent Muslim mūjtāhīd, who addressed queries about modern Islamic private law on his own authority.
‘Abd alRazzāq alSanhūrī’s Rule of Law’s Doctrine: Sānhūrī’s Legal Transplantation
Sānhūrī was a gradualist. For him, civil law opened up Egypt to a new approach of justice and familiarized its people with a new court system. His keen interest in French civil law seems to be correlated to the latter’s history and influence in the Arab Muslim world. He expressed three main reasons why French civil law was more persuasive: (a) french civil law distinguished between legislation (laws) and case law (jurisprudence) as two scopes of law that do not overlap; (b) french code did not approve rigid positions on legal notions (theories) and philosophical schools and evaded redundancy; (c) the French code’s legal language is flexible, permitting them to address real life circumstances and their constant evolution. He described that codification is not a contemporary movement but a method that pervades ancient legal traditions. He considered the codification movement of the late 19th and early 20th centuries as the modern phase in the long history of codification (enthusiasm to the potent political utility).
Sānhūrī claimed three spheres of continuity in his codification project of the Egyptian civil law: (a) endurance of the postcolonial Egyptian state with Muslim political thought via institutional/constitutional changes; (b) continuity of the old – French Napoleonic – civil law with the new hybrid one (Islamic, European, and French code); and (c) continuity of the new Muslim family law with the jurisprudential standards of the Islamic legal schools. Sānhūrī presented his codification project as an operative legal instrument and a model to imprint with local Middle Eastern legal traditions and Islamic law. He argued that it would be impulsive to dismiss the rich legal history of Egypt and transplant an extensive foreign code, so living dependent on other countries and pleading to benefit from their backgrounds.He saw codification of Islamic law as a virtuously legal technique that would empower it to exist outside the framework of fīqh. This process will keep the status of Islamic law within new evolving legislative and judicial bodies. Within the Egyptian context, he saw the historical introduction of al-tashrīʿ al-miṣrī (civil law) in the Mixed and National Courts as a crucial development compared to the state of affairs before its introduction.
The future of Islamic law under government-led powerful codification efforts has become a key concern among Muslim scholars and judges. Muslim scholars argued that the laws that have historically governed Egypt were profoundly tangled with local customary practices and specific social conditions and that any serious attempt to preserve a sense of wāṭanīyyā (nationality) among Egyptians requires that any integration of new legislation should be responding to local forms of justice and native legal traditions. This process focused mostly on the sources of the anticipated law rather than the mode of legal ordering of the justice system.
Conclusion
The contestation of the relationship between dīn and dāwlā is one of the crucial cultural practices in modern Muslim political thought. Sānhūrī’s theory was an attempt to bring about a sense of endurance between Muslim political thought and the evolving nation state apparatus in the Arab and Muslim world. The description of the domains of Religion and State in Egyptian legal history was conceivable through articulation with prevailing Islamic jurisprudential distinction between ʿībādāt and mūʿāmālāt. This relationship between religion and state enabled him to endorse and legitimize a political and social order that renovates the bond between state power, religion, and evolving institutions. Meanwhile, the nature of this alteration devoted new authority within the state to accomplish and decide on numerous matters that were believed outside of dīn. The outcome is a political order created on a distinction between them that adjusts formal structures of governance and guarantee the political sovereign decisive power over the spiritual sphere. Sānhūrī’s deployed this linkage (theorize a possible reconciliation between the postcolonial state and Muslim political thought), and created this discourse in the context of morals and ritual worship, averting any implication of state power over dīn (dīn upheld certain normative power in society). Thus, Sānhūrī’s jurisprudence validate the diverse orientations that reinforce the politics of Islamic law in a given culture. He realized that the modern nation state is not an unbiased entity and required to be based on philosophical, social, and political traditions of Muslim thought. In his understanding, the state may enjoy certain authority to decide on religious enquiries that may affect public policy. The adoption of codification as a universal legal technique – not a concomitant of European legal modernity – enabled Sānhūrī to preserve that the significant bureaucratic and structural changes in Egypt were inevitably inspired by local ‘ūrf (tradition) and Islamic law. The single most substantial action by the legal elite in Egypt was the reasoning of the civil code as a legitimate and necessary measure for modernism. The political adoption of the French civil law permitted it to gain hegemonic status and normativity over all domestic legal traditions.
