Acknowledgments
This book has taken many years to write, but it could just as easily have taken many more given the richness of the material. In the time I have spent on it, I have accrued debts from far too many people to be able to do them justice in what follows.
I have been fortunate to be associated with a series of supportive departmental homes throughout my academic career. The early germs of the idea for this book were cultivated at the Institute of Islamic Studies at McGill University, to whose faculty I am grateful for an education that provided a solid grounding in the field, even as it remained attentive to larger intellectual questions animating the various disciplines that together constitute Islamic studies. I owe a special debt of gratitude to Setrag Manoukian, whose broadmindedness and perspicacity are equaled only by his kindness and generosity. Wael Hallaq’s intellectual presence has been a constant in my thinking, and it is hard to imagine what this book could have looked like without his many comments, discussions, lectures, and interventions. Rula Abisaab has been a continuous source of support and intellectual engagement. I thank also for their early interest in, and support for, my work Malek Abisaab, Sajida Alvi, Laila Parsons, Jamil Ragep, and Robert Wisnovsky. Dyala Hamzah served as a careful and demanding external reader. I owe a special note of thanks to Adina Sigartau and Kirsty McKinnon for their administrative expertise, and to the staff of the Islamic Studies Library for all sorts of support.
At the University of Illinois at Chicago, the Department of History has provided both an open and welcoming atmosphere and a supportive platform from which to pursue my intellectual interests. I am especially grateful to Chris Boyer, who has been a continuous source of wise counsel and encouragement since I joined the department, and was instrumental in shepherding this book to publication. Kevin Schultz has always been a reliable sounding board for matters both intellectual and professional. Laura Hostetler guided me through a hectic first year as an assistant professor with characteristic care and humanity. Marina Mogilner read the entire manuscript at a critical time and offered a number of perceptive suggestions on how to deepen the book’s analysis. The work is stronger for those of her comments that I have
been able to incorporate; those I could not address are but fodder for ongoing thinking and future discussion. Mary Parks and Linda VanPuyenbroeck, and now Hannah Landsmann and Jessica Hosley, smooth the way for us in the department. I am grateful also to Rama Mantena, Sunil Agnani, and Rachel Havrelock for their steady presence and continuous advocacy. Colleagues in the Program in Religious Studies have helped create a series of opportunities to explore shared interests in a world in which religion, when it is seen at all, is too often seen reductively. Ellen McClure read parts of the manuscript and served as a model of conscientious and thoughtful scholarship. My conversations with Sam Fleischacker on topics of shared interest regularly turn up insights. I am thankful also to Ralph Keen and Laura Dingeldein.
My interlude at the Qatar Faculty of Islamic Studies was a rewarding experience, and I am grateful to the many people who made my year in Doha feel like an extended workshop. I would be remiss if I did not mention the wonderful people at the Department of Philosophy at the University of Waterloo who first made the world of the academic humanities accessible to me. Brian Orend was an excellent mentor. E. J. Ashworth, Joe Novak, Dave Devidi, and Jan Narveson were all rigorous and supportive in equal measure.
For reading and commenting on my work over the years, or simply sharing in its preoccupations in the form of extended conversation in Montreal, Toronto, Cairo, Amman, Doha, and Chicago, I am grateful to Aun Hasan Ali, Emann Allebban, Ovamir Anjum, Alexandre Caeiro, Garrett Davidson, Sarah Eltantawi, Anver Emon, Ellen Etchingham, Bilal Ibrahim, Rizwan Mohammad, Yasmin Moll, Nermeen Mouftah, Nada Moumtaz, Michael Nafi, Nathan Spannaus, Emmanuelle Stefanidis, Daniel Stolz, Leonard Wood, and Florian Zemmin. In Cairo, where the bulk of this research took place, I was fortunate to have the company, experience, and guidance of Omar Cheta, Matt Ellis, Khaled Fahmy, Nathaniel Heisler, Gregory Hoadley, Ahmed Fekry Ibrahim, Aaron Jakes, Sara Nimis, Patrick Scharfe, and Alex Seggerman. In Amman, the staff and fellows of ACOR, in particular the Andersons, made the place feel like home. I am grateful also for the research assistance of the resourceful Muhammad al-Marakeby; and the editorial help of Ajapa Sharma, Avash Bhandari, and Zukhra Kasimova.
I would like to thank Cynthia Read and the staff at Oxford University Press for their work in bringing this book to light. I also wish to acknowledge with gratitude De Gruyter and Duke University Press for permitting me the use of select language from previous publications.
The staff at the following libraries and archives deserve my appreciation: the British National Archives, the British Library, and Palace Green Library (Durham University) in the United Kingdom; the Süleymaniyye Library and İSAM in Istanbul; Maktabat al-Azhar, Dār al-Iftāʾ al-Miṣriyya, Dār al-Kutub al-Qawmiyya (National Library), and Dār al-Wathāʾiq al-Qawmiyya (National Archives) in Cairo. I would also like to thank Dr. Ibrahim Negm of the Dār al-Iftāʾ al-Miṣriyya for his support and assistance. Muḥammad al-Rikābī is not affiliated with any institution, but his store of books in a makeshift office in the back alleys around the Azhar mosque was a dhakhīra Ṣalāḥ Abū al-Ḥāj is similarly a treasure of knowledge pertaining to the Ḥanafī school, and it gives me great pleasure to acknowledge the immeasurable help he provided me in navigating the concerns of this book and Ḥanafism more broadly.
For financial support that made this research possible, I would like to express my gratitude to the American Council of Learned Societies, the Woodrow Wilson National Fellowship Foundation, the Andrew W. Mellon Foundation, the Social Sciences and Humanities Research Council of Canada, the American Research Center in Egypt, the American Center for Oriental Research in Amman, the College of Liberal Arts and Sciences at UIC, and the Faculty of Arts and the Institute of Islamic Studies at McGill.
Nermeen Mouftah endures more stress and worry observing my writing process than she does crafting her own. For her companionship, patience, and good nature, I am ever grateful. The Mouftah, Kamel, and Abdallah families give us homes away from home, both physically and spiritually. Omair Quadri and Sumaira Shah lighten my burdens; and Inayah brightens with her raunaq. For my parents, words will not do.
Introduction
The Ramadan season of 1910 was a particularly eventful one for Muḥammad Bakhīt al-Muṭīʿī, then the head of the shariʿa court in Alexandria and later the Mufti of Egypt. Amid the fasting and festivities that mark the month every year, Bakhīt was called upon to offer his expert opinion on a matter of Islamic law that was proving to be a source of division for two very different Muslim communities. Each of these contexts presented its own specificities, but both were bedeviled by the question of how precisely to bring the venerable juristic tradition to bear upon a very modern problem, namely the evidentiary status of religious reports transmitted through the telegraph.
The first query came from the Khedive of Egypt, whose representative (qāʾim maqām) solicited the jurist’s thoughts on a telegram he had received from Aswan reporting that the crescent had been spotted there on the eve of the thirtieth of Ramadan. Because the Muslim hijrī calendar follows a lunar schedule, this claim, after it had been certified by the local judge, was taken by Aswanis to signify the end of the fasting month of Ramadan and the beginning of Eid festivities.1 The Khedive’s office was interested to know from Bakhīt whether he thought it appropriate to rely on this telegraphic report to declare the Eid throughout the rest of the country. Bakhīt responded in the affirmative, his advisory opinion was subsequently confirmed by the Chief Justice of Cairo (qāḍī miṣr) out of an abundance of caution, and ceremonial cannons were set off to signal the beginning of the festival. This unfolding of events, however, troubled many of his learned compatriots who raised doubts about the legitimacy of legal reports conveyed via the telegraph, a new medium encountered only recently, and addressed only summarily, by Muslim jurists.
1 Months in the hijrī calendar may be either twenty-nine or thirty days, a determination that, historically, could only be made on the eve of the thirtieth. On these traditional standards, which eschew the specification of a lunar calendar in advance, if the new moon (hilāl) is sighted that evening, the month is only twenty-nine days long, and the next day is deemed to be the first of the new month. If not, the month is considered to be thirty days long.
Transformations of Tradition. Junaid Quadri, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/oso/9780190077044.003.0001
In the second case, Bakhīt received a letter from a prominent Egyptian merchant, Ḥasan Bāshā Madkūr, mentioning the experience of one of his friends in Medina who had traveled to a region of India, where he found the local community similarly occupied with the question of whether or not to accept “a report of fasting or ceasing fasting transmitted through the telegraph.”2 The Muslim scholars of the area, divided on the issue, subsequently sent along via this chain of contacts a detailed description of their differences and their respective justifications, seeking further guidance on the matter from the prominent shaykh. As Bakhīt would later recall, “They composed a petition and sent it to [the Medinan friend] in the hope that it may be presented to me, and that I would write upon the matter, illuminating it for them.”3 A little more than six months later, he did just that, penning a full-length treatise, which he titled Irshād Ahl al-Milla ilā Ithbāt al-Ahilla (Guidance to the Muslims on Determining the New Moons), that responded to both entreaties amid a comprehensive examination of a range of issues surrounding the determination of the hijrī months in an era of changed circumstances. It is this text, the context in which it emerged, and what we may learn about the history of Islamic law from the positions it took that constitute the centerpiece of our discussions in this book.
The practice of petitioning the knowledgeable for legal guidance (istiftāʾ) is, along with its complement, the learned jurists’ furnishing (iftāʾ) of responsa (fatwas), a veritable institution of Muslim societies stretching back to the Prophetic era,4 but these two incidences of it captured a series of modern anxieties that animated “traditionalist” ulama’s confrontation with a radically changed—or, at least, rapidly changing—world. Historians of Islamic law have long noted that fatwas were a genre of legal writing closely connected to social change, existing as they did at the frontier of the juristic elite’s engagement with society.5 Driven by the concerns of social life, these questions and
2 Muḥammad Bakhīt al-Muṭīʿī, Irshād Ahl al-Milla ilā Ithbāt al-Ahilla, ed. Ḥasan Aḥmad Isbir (Beirut: Dār Ibn Ḥazm, 2000), 17. The earlier edition of the text is Muḥammad Bakhīt al-Muṭīʿī, Kitāb Irshād Ahl al-Milla ilā Ithbāt al-Ahilla (Miṣr: Maṭbaʿat al-Kurdistān al-ʿIlmiyya, 1329 H). All page number references will be to the 2000 edition from Dār Ibn Ḥazm.
3 Bakhīt al-Muṭīʿī, Irshād Ahl al-Milla, 18.
4 Muhammad Khalid Masud, Brinkley Morris Messick, and David Stephan Powers, eds., Islamic Legal Interpretation: Muftis and Their Fatwas, Harvard Studies in Islamic Law (Cambridge, MA: Harvard University Press, 1996), 4. For a magisterial history of fatwa-giving in Egypt, see ʿImād Aḥmad Hilāl, al-Iftāʾ al-Miṣrī min al-Ṣaḥābī ʿUqba ibn ʿĀmir ilā al-Duktūr ʿAlī Jumʿ a, 6 vols. (Cairo: Maṭbaʿat Dār al-Kutub wa-l-Wathāʾiq al-Qawmiyya, 2010–2020).
5 Wael B. Hallaq, “From Fatwās to Furūʿ: Growth and Change in Islamic Substantive Law,” Islamic Law and Society 1, no. 1 (1994): 29–65; Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 2000); Baber Johansen, The Islamic Law on Land Tax and Rent: The Peasants’ Loss of Property Rights as Interpreted in the
answers often provide, therefore, rich and detailed accounts through which to understand the specific contexts in which petitioners found themselves. In particular, because these were matters everyday people felt ill-equipped to confidently resolve for themselves, fatwa responsa often addressed new and unprecedented situations (nawāzil) that required recourse to knowledgeable experts.
In the cases given here, the central question was how precisely to make sense of the presence of a new technology that had redefined communication. In particular, in a legal system that privileged oral testimonies and in-person transmissions of reports, and conceptualized the permissibility of written correspondences between judges as a concession to the practical needs of a growing empire, how ought Muslims understand the emergence of the telegraph and the set of procedures and protocols specific to it?6 Disagreements over crescent sightings were not themselves a new phenomenon—narrations from as far back as the lives of the Prophet Muḥammad’s Companions record divergent determinations of the months in disparate areas of the nascent Muslim empire and suggest differences of opinion among them over how to deal with discrepancies when they came to light.7 In a world connected by telegraphic infrastructure, however, in which news that might previously take days to convey could now travel exponentially faster, the question presented a newfound urgency. Whereas the famous Companion of the Prophet ʿAbd Allāh b. ʿAbbās could simply set aside the news that Syrians had started fasting a day earlier than his community in Medina, summarily disregarding telegrams reporting events from the very same night seemed counterintuitive on its face.8 And yet, if the Khedive’s need to approach Bakhīt in the first place, Bakhīt’s precautionary insistence that his opinion be confirmed by the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London: Croom Helm, 1988); Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1982).
6 Wael B. Hallaq, “Qāḍīs Communicating: Legal Change and the Law of Documentary Evidence,” Al-Qanṭara XX, no. 2 (1999): 439.
7 See, for example, the famous hadith of Kurayb, related in the compilations of Muslim, Abū Dāwūd, al-Tirmidhī, al-Nasāʾī, and Aḥmad b. Ḥanbal. The text of the tradition can also be found in Muḥammad Amīn Ibn ʿĀbidīn, “Tanbīh al-Ghāfil wa-l-Wasnān ʿalā Aḥkām Hilāl Ramaḍān,” in Arbaʿa Rasāʾil fī Hilāl Khayr Al-Shuhūr (Beirut: Dār Ibn Ḥazm, 2000), 106; Kamāl al-Dīn Ibn alHumām, Fatḥ al-Qadīr (Beirut: Dār al-Fikr, n.d.), 2:314. See also chapter 5.
8 There is, in fact, an extensive jurisprudence on this issue that is framed around the question of “horizons.” It treats the question of what ought to be considered a single jurisdiction, such that the determination of a crescent sighting in one area of the jurisdiction applies to the whole. Some have held, in contrast to the apparent meaning of the hadith given here, that the whole world is one “horizon” (ittiḥād al-maṭāliʿ), and a sighting anywhere is binding on all; while others have been content to divide the world into different jurisdictions (ikhtilāf al-maṭāliʿ).
head qadi (“the highest judge in the Egyptian lands”) and the subsequent uproar are any indication, departing from the cumulative tradition of thinking and practice on this matter appears to have struck many as equally in need of careful deliberation and debate.
Figuring out how to grapple with the consequences of new technologies was but one of a series of challenges that confronted everyday Muslims in the opening decade of the twentieth century. A close reading of the two scenarios depicted above allows us to glimpse a handful of other salient features, laying bare the social and political terrain on which Muslim subjects now found themselves operating. To begin, the cases reveal the two overarching contexts that structured modern Egyptian Muslims’ everyday lives: the first, the growing presence and intrusive involvement of the bureaucratizing and modernizing Egyptian state; and the second, the transregional worlds in which they were situated, formed variously by British imperialism, commercial connections, and networks of Muslim learning.
In the first case, jurists’ engagement with the Khedive’s petition is mediated entirely within the world of state officialdom. It is a judge in Aswan’s central court (maḥkamat al-markaz, an institution set up and regulated by the Khedive) who certifies the claimed crescent sighting in the first instance; the mudīr of the district of Aswan then conveys the news to the offices of the Khedive, the Prime Minister, and the Interior Minister; the Khedive’s representative approaches Bakhīt, the head of the Alexandria shariʿa court; Bakhīt’s decision is then forwarded to the country’s head judge in Cairo; and Egyptians are notified of the national decision by the government’s sounding of cannons. This whole process takes place through official correspondences, and indeed, it is precisely this characteristic of the telegraph report that our mufti points to mudar explain his confidence in it: “it is an official report proceeding from the Egyptian government (khabar rasmī ṣādir min ṭarīq al-ḥukūma al-miṣriyya), and it is unlikely that the like of it is infiltrated by untruth.”9
But the telegraph was from its inception as much an imperial institution as a national one. The famed Egyptian modernizer, Ism ā ʿ ī l Pā sh ā , had by 1870 laid down sixty- six internal telegraphic lines amounting to five thousand miles. 10 But the interest of telegraphy in Egypt was also
9 Bakhīt al-Muṭīʿī, Irshād Ahl al-Milla, 16.
10 See P. J. Vatikiotis, The History of Modern Egypt: From Muhammad Ali to Mubarak, 4th ed. (Baltimore: The Johns Hopkins University Press, 1991), 79; Eli M. Noam, Telecommunications in Africa (Oxford: Oxford University Press, 1999), 40.
spurred on by British strategic interests in using an overland AlexandriaCairo- Suez line as a crucial link “on the road to India.” 11 “The Eastern lines,” as they came to be called, became the preferred route of cable communication to India: “because of their exemption from political surveillance and because of the greater speed and accuracy with which their messages were transmitted, [the Eastern lines] became the main artery of intercommunication system between West and East.” 12 India and Egypt were, of course, two key zones of colonial influence and domination for the British, and indeed the importance of the connections between them was only underscored by the cross- fertilization of British officials and expertise— the British Consul- General for almost twentyfive years until 1907, for example, was Lord Cromer whose initial posts in imperial government had him shuttling between the Indian and Egyptian files. 13 The colonial presence of the British was, thus, an important supranational context that bore upon the politics of Egyptian society and connected it with other colonies.
But there were also older and more established Islamic networks that brought Muslim communities into contact with one another. The world of Islamdom is vividly represented here in the layered route by which Bakhīt came to know of debates within a far-off “region of India”: via an Egyptian merchant whose associate in the sacred city of Medina had traveled to that part of the country, a chain that connects Muslim communities together through commerce and pilgrimage. Notably, in the Indian case, the appeal to Bakhīt’s authority and expertise proceeds on an entirely different premise than it did within Egypt. Whereas the Egyptian chain of correspondence unfolded from start to finish under the auspices of a centralizing state, it is precisely the absence of Muslim rule and an established hierarchy of Muslim courts that motivated the letter from India. The questioners, aware of the peculiarity of their newfound political situation, ask how precisely to accommodate it:
11 Charles Bright, Submarine Telegraphs: Their History, Construction, and Working (London: C. Lockwood and Son, 1898), 62.
12 Halford Lancaster Hoskins, British Routes to India (New York: Longmans, Green and Co., 1928), 393. On the initial frustrations encountered by the effort to link Egypt to India telegraphically and their subsequent overcoming, see On Barak, On Time: Technology and Temporality in Modern Egypt (Berkeley: University of California Press, 2013), 44–49.
13 See Roger Owen, Lord Cromer: Victorian Imperialist, Edwardian Proconsul (Oxford: Oxford University Press, 2004).
May the imam of a mosque take the place of a qadi in affirming [a sighting of] the crescent? Specifically, [may he do so] with the approval of the Muslims in lands where there is no Muslim sovereign or judge?14
Historians of Islamic law in India have pointed out that the disappearance of official Islamic legal authority was a recurring concern for Muslims in colonial India, with one influential solution being precisely the one asked about by Bakhīt’s interlocutors.15 Yet, despite apparent dissimilarities, this, too, was a shared anxiety. The contestation and reconstitution of the ulama’s authority under modern conditions manifested differently in the two cases, but the stability of the Egyptian legal process taken for granted by Bakhīt was itself the result of a significant displacement of the power historically enjoyed by ulama in favor of state institutions.
The staying power of old (albeit reconfigured and reweighted) networks of Islamdom is also represented in these two vignettes in other ways. Perhaps even more fundamental than the connections formed by trade and piety is the shared universe of thought and debate constructed over centuries by ulama, Muslim learned scholars and jurists, across the Muslim world. The Indian imam who signed off on the letter is identified by Bakhīt as “Shaykh ʿAbd al-Ḥayy, the preacher (khaṭīb) of the ‘Rankūt’ mosque.” This is a reference to ʿAbd al-Ḥayy al-Kaflaytwī, who delivered Friday sermons in the Rangoon mosque in Burma, then a part of the British Raj.16 There is in Bakhīt’s identification a typo or mistake in transcription—the replacing of n with the not dissimilar grapheme t that gestures toward a distance and lack of familiarity between the petitioner and responder. But this misprint belies a deeper connection. Importantly, al-Kaflaytwī evinces not only a knowledge of his local community’s social situation (especially their relative weakness vis-à-vis a British government he understands to be hostile to Islam) but also a command over the language of Islamic law—in particular,
14 Bakhīt al-Muṭīʿī, Irshād Ahl al-Milla, 18.
15 Muhammad Khalid Masud, “Apostasy and Judicial Separation in British India,” in Islamic Legal Interpretation: Muftis and Their Fatwas, ed. Muhammad Khalid Masud, Brinkley Messick, and David S. Powers, Harvard Studies in Islamic Law (Cambridge, MA: Harvard University Press, 1996), 193–203; Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change, Princeton Studies in Muslim Politics (Princeton, NJ: Princeton University Press, 2002), 29–31. Fareeha Khan, “Traditionalist Approaches to Sharī‘ah Reform: Mawlana Ashraf ‘Ali Thānawi’s Fatwa on Women’s Right to Divorce” (PhD diss., University of Michigan, 2008).
16 I am grateful to Uwais Namazi for his help identifying this figure. For a short biographical entry on al-Kaflaytwī, see ʿAbd al-Ḥayy b. Fakhr al-Dīn al-Ḥasanī, Nuzhat al-Khawāṭir (Beiut: Dār Ibn Ḥazm, 1999), 8:1267–68.
the positive doctrine, evidentiary standards, and authoritative figures of the Ḥanafī school. The common idiom of the shariʿa has long been a glue that has bound educated Muslims from across continents. The fourteenth-century traveler Ibn Battuta, for example, could famously travel from his native Tangier and, based on his Maghribī training in Islamic law, work as a qadi under the Delhi Sultanate, trading on his knowledge and authority as he traversed the breadth of the Muslim world. In the modern period, the possibilities for transregional engagement proliferated as a result of the relative ease with which ideas and individuals circulated in an age of print and increased travel. These links were all the more solidified when, as in this case, the dialogue was had by two members of the same madhhab, or juristic school, a key frame through which Muslim jurists envisioned their allegiances, conducted their investigations, and carried out their craft.
The impact of new technology, the encroaching power of territorialized states, the persistence of older transregional networks of Islamic belonging and connection, the emergent presence of imperialism, the contested and unstable nature of legal authority—these are all themes that will emerge in this book as central to the manner in which Islamic law developed in the late nineteenth and early twentieth centuries. At its core, however, this book is a study of Islamic law’s intellectual entanglement with colonial modernity. More specifically, it is an historical examination of the development of the long-standing, indigenous field of learning and praxis known as shariʿ a or fiqh as a result of its imbalanced interaction with new European modes of knowing during, and in the immediate aftermath of, the colonial experience. I argue that central epistemological commitments associated with modernity came to be far more pervasive in colonial Muslim settings than is generally appreciated. Indeed, the legal discussions I treat in the chapters that follow give us reason to think that what is typically described as the “traditional” or “orthodox” sector of Islamic societies—the pre-eminent exemplars of which are the jurist-theologians of Islam (the ulama)—was much more accommodating of the entry of modernist epistemologies into its own conceptual thought-world than scholars have made it out to be. These findings, in turn, force us to reconsider, and trouble in new ways, the status and nature of Islamic law as a tradition in the modern world.
Taking Egypt in the late nineteenth and early twentieth centuries as my central case study, I examine the impact on Islamic legal thinking of crosscultural encounters, social reconfigurations, and technological advances that made certain elements of modern European thinking attractive to Muslim
jurists. In fact, I argue that in many cases the tilted power dynamics of a new political landscape—in which not only were colonial powers ascendant but French-trained intellectuals and modernizing reformers from the local population deftly used modern means like the printing press to contest the intellectual prestige and standing historically reserved for the ulama—placed significant pressure on “traditionalists” that made new epistemological commitments not simply accessible, but irresistible. In yet other cases, the penetration of new technologies like the telegraph, the telescope, the phonograph, and photography served to make available to Muslim jurists ways of perceiving the world that came to be understood as natural and uncontroversial, despite both their relatively recent origins and their foreignness to the sophisticated intellectual system erected over many centuries by the ulama. These transformations of tradition appear most readily in the Ḥanafī legal school (madhhab) as represented by the intellectual output of the jurist we encountered at the outset of this introduction, Muḥammad Bakhīt al-Muṭīʿī (1854–1935; widely referred to by his father’s name Bakhīt, rather than his nisba al-Muṭīʿī). Although relatively unknown in Western academia, Bakhīt was a towering figure in ulama circles of the period, remembered by one of his colleagues as “the undisputed ʿallāma of the Egyptian lands; the uncontested shaykh of its shaykhs.”17 As a leading member of the ulama often called upon to defend an older order in a rapidly changing environment, Bakhīt had a complicated relationship with colonial officials but regularly found himself at loggerheads with Muslim modernist intellectuals whom he thought to be disruptive bearers of foreign power and modern ideas.18 As a result, he often figured in debates as one of the most ardent opponents of the Egyptian Reformist movement, earning himself a reputation among both his contemporaries and posterity as an arch-conservative or traditionalist par excellence. However, through close readings of his legal works, I show that Bakhīt had in fact absorbed some fundamental modernist ideals, commitments which at times mirrored and at other times exceeded what Muslim modernists were expressly agitating for. These findings only become apparent, I argue, when we shift our attention away from the politically charged turf battles that divided the ulama from their opponents (for example, reform of the law of endowments, which had for centuries been an important source of ulama income, or reform of the sensitive field of divorce
17 Aḥmad Ibn al-Ṣiddīq al-Ghumārī, al-Baḥr al-ʿAmīq fī Marwiyyāt Ibn al-Ṣiddīq, vol. 1 (Cairo: Dār al-Kutubī, 2007), 195.
18 See chapters 1 and 3.
law), and instead direct it toward unconventional sites like the jurisprudence of ritual.19 Indeed, in couching these commitments in genres and language that had a distinguished pedigree in Muslim thought, Bakhīt often enhanced their respectability in ways that modernists who advocated for a conscious departure from the past could not.
My detailed reading of Bakhīt reveals the entry into the corpus of Islamic legal writing of a series of departures from the older tradition: (1) a historical consciousness that facilitates an upending of the structure of legal authority such that the findings of the medieval past are de-emphasized and the capacities of the modern jurist are valorized; (2) a scientific optimism which makes room for the findings of modern science precisely because of its “objectivity,” often over and above long-standing genre-internal standards of perception, now castigated for their subjectivity and thus vulnerability to error; and (3) a compartmentalized notion of the concept of religion as including primarily ritual practices and private belief, which in turn forces an exclusion of those matters from the purview of the courts—a distinction between public and private that lays the groundwork for a certain type of secularity. Given how fundamental these shifts are, I claim that we are justified in asking to what extent they represent a radical transformation of Islamic law, and not simply a continuity of an older tradition.
Colonial Modernity and Islamic Tradition
In the last chapter of his widely acclaimed Formations of the Secular, the anthropologist Talal Asad offers his readers a particularly rich and nuanced discussion of shariʿa reform in colonial Egypt.20 Redirecting our attention from the conventional tendency to either evaluate the Islamic authenticity of reformist arguments and personalities or to determine relative agency among the various political actors involved in the process, Asad invites us to consider instead the “new moral landscape” being constituted by the totality of social forces then converging to produce the phenomenon we call reform. “The basic question,” for Asad,
19 Bakhīt wrote three works on endowments and at least one on divorce law. See n77.
20 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 205–56.
is not the determination of “oppressors” and “oppressed,” of whether the elites or the popular masses were the agents in the history of reform. . . . It is the determination of that new landscape, and the degree to which the languages, behaviors, and institutions it makes possible come to resemble those that obtain in the West European nation-states.21
For his part, Asad focuses on three key, and interrelated, developments he takes to be fundamental to the reformulation of Islamic discursive tradition: a new salience given to the family unit, a strict demarcation between law and morality, and the production of new sorts of subjectivities which privilege the notion of an autonomous, self-governing conscience over that of an embodied moral agent. These “social and cultural changes,” argues Asad, “created some of the basic preconditions for secular modernity.”22
In a similar fashion, this book takes seriously the profound impact of the colonial experience, and the deep inroads made by “secular modernity” into Egyptian society and Islamic tradition as a result.23 It does so by tracing the extensive penetration of what scholars have tended to see as “modern” or “Modernist”24 intellectual commitments into the discursive tradition of the ulama, the class of Islamic jurist-scholars that has often been identified as traditional, conservative, and at times obscurantist. In centering my investigation on the ulama, my findings do not simply affirm Asad’s observations about the widespread influence of colonial modernity but extend them to a domain of society that he and others have left relatively untouched. That is to say, detection of Modernist commitments in the writings of ulama figures
21 Asad, Formations of the Secular, 216–17.
22 Asad, Formations of the Secular, 235.
23 An influential work that shows in detail how the colonial presence in Egypt restructured the political and social order of the country is Timothy Mitchell, Colonising Egypt (Berkeley: University of California Press, 1991). Drawing on Heidegger and Derrida, Mitchell identifies the colonial-modern device of “representation” as being at work in late nineteenth- and early twentieth-century Egypt. By “representation,” he explains elsewhere, is meant “the forms of social practice that set up in the social architecture of the world what seems an absolute distinction between image (or meaning, or structure) and reality, and thus a distinctive imagination of the real.” See Timothy Mitchell, ed., Questions of Modernity, Contradictions of Modernity, vol. 11 (Minneapolis: University of Minnesota Press, 2000), 17. The spread of this way of viewing one’s surroundings, Mitchell argues, gives rise to “a new conception of space, new forms of personhood, and a new means of manufacturing the experience of the real.” Mitchell, Colonising Egypt, ix. I discuss the impact of this conception on Muslim-Egyptian thinking in chapter 4.
24 The secondary literature regularly calls the Reform movement “Modernist.” This is a broad term, and it is not often clear what parallels are to be drawn to other Modernist movements in other fields. The central criteria for my interlocutors tends to be, as we will see later, the debate about the reassertion of ijtihād. Despite its limitations, I continue to find it a suitable appellation insofar as it denotes a conscious departure from the medieval past as represented by the culture of ulama.
demonstrates their pervasiveness to a greater degree than has been previously appreciated.25
This, however, raises questions about the status of Islamic law as a tradition. Since the landmark publication of Alasdair MacIntyre’s After Virtue in 1981, scholarship has evidenced a renewed interest in the concept of “tradition.” This shift in research orientation was presented to Islamic Studies most prominently in Asad’s early work, in which he famously urged fellow anthropologists of Islam to reframe their analyses of Islam by “begin[ning], as Muslims do, from the concept of a discursive tradition.”26 This has been an important corrective in the field (by no means limited to anthropology), one that both eschews overly reductionist explanations of a complex religious tradition and displays a keen sensitivity and openness toward the intellectual claims of the very subjects of our scholarly research. For Asad,
An Islamic discursive tradition is simply a tradition of Muslim discourse that addresses itself to conceptions of the Islamic past and future, with reference to a particular Islamic practice in the present. Clearly, not everything Muslims say and do belongs to an Islamic discursive tradition. Nor is an Islamic tradition in this sense necessarily imitative of what was done in the past. For even where traditional practices appear to the anthropologist to be imitative of what has gone before, it will be the practitioners’ conceptions of what is apt performance, and of how the past is related to present practices, that will be crucial for tradition, not the apparent repetition of an old form.27
This early formulation captures rather well how Asad’s category of tradition is at once circumscribed and expansive. Against a relativistic approach that considers anything a Muslim says or does as part of the social structure of
25 Asad, for example, is content to restrict himself to the writings of Reformist-minded personalities Muḥammad ʿAbduh, Qāsim Amīn, and Aḥmad Ṣafwat, though he takes them to be influential representatives of a larger political and social shift. See Asad, Formations of the Secular, 228–41. Mitchell’s interest in the ulama is restricted to brief discussions of the institution of al-Azhar, and traditional linguistic theory, and that, too, only inasmuch as they are useful contrasts to British conceptions of educational order and discipline, on the one hand, and modern theories of communication, on the other. Mitchell, Colonising Egypt, 80–87, 128–60. The lone author that seems to have taken up these issues at length is Indira Falk Gesink, but my differences with her project will emerge in due course. Indira Falk Gesink, Islamic Reform and Conservatism: Al-Azhar and the Evolution of Modern Sunni Islam (London: Tauris Academic Studies, 2010).
26 Talal Asad, “The Idea of an Anthropology of Islam,” Occasional Papers Series (Washington, DC: Georgetown University Center for Contemporary Arab Studies, 1986), 14.
27 Asad, “The Idea of an Anthropology of Islam,” 14–15.
