31 Pages Posted: 16 Feb 2013 Last revised: 24 Feb 2013

Date Written: 2013

Abstract

The divisions between Islamist and non-Islamist forces in Egypt have substantially complicated the ability of both polities to transition to a stable post-authoritarian constitutional order. The divisions between these two camps, however, have been present from the founding of the modern Egyptian state in the 19th century, which sought to establish its legitimacy both as an Islamic state and a modernizing state. This tension has bedeviled Egyptian politics for the last 100 years, and threatens the success of post-Mubarak transition unless a way to reconcile these two sources of the Egyptian state’s modern legitimacy is found. One particularly important arena for resolving these tensions is the legal system. In the area of law, the demands of modernization during the last-quarter of the 19th century resulted in the substantial replacement of Egypt’s pre-19th century system of Islamic law with European codes. Following World War I, with Egypt having regained nominal independence from the British Empire, Egyptian lawyers, now largely trained in the French civil law system, sought to reconcile Egypt’s modern civil law system with its Islamic legal heritage by producing a new civil code which was claimed to be both Islamic and modern. The Egyptian Civil Code of 1949, as well as some other statutory reforms of pre-19th century Islamic law, signalled the determination of the Egyptian state to forge a new legal system, one that would be based on Islamic legal principles but articulated by a secular state, hence giving rise to what this article calls “Islamic State Law.” The last quarter of the 20th century witnessed the continuation of this project through the adoption of Article 2 in Egypt’s constitution which declared that the principles of the Islamic shari’a were the main sources of Egyptian legislation. The project of Islamic State Law, however, has been subject to criticism by both conservative Islamists and non-Islamists: the former dismiss it as sufficiently Islamic and the latter dismiss it as insufficiently modern. This article argues that one important reason for the relative failure of Islamic state law is institutional: Islamic law has traditionally been a discursive tradition that does not fit comfortably within the positivist legal tradition that Egypt adopted when it modernized its legal system in the last quarter of the 19th century, and accordingly, adoption of a common law culture would allow courts greater power in effectively reconciling various modern legal values, such as the commitment to development and human rights, with the historical tradition of Islamic law. The article concludes with three examples demonstrating how endowing Egyptian courts with the powers of common law courts could further the goals of both modernizing Egyptian law, and rendering it more cognizably Islamic.