Muhammad Abduh Page 9

  THE NATIONAL COURTS

  Egypt had three parallel judicial systems. The oldest of these was the Sharia Court system, which had existed from time immemorial, applying Islamic law and staffed by ulema. The second system, of so-called Judicial Councils, had been established in 1848 to apply administrative regulations and to act as special criminal courts, and was staffed by government officials. The third system was the Mixed Court system, established in 1875 to apply a civil code on the French model, and staffed partly by European and partly by Egyptian judges. The Mixed Courts had jurisdiction over all cases involving Europeans, even if only one party to a dispute was a European. In 1882, the Judicial Council system was replaced by a system of National Courts, and this was the system in which Muhammad Abduh was appointed a judge. The National Courts were intended to apply modern codes similar to those used by the Mixed Courts, and took over much of the jurisdiction of the Sharia Courts, which were left only family and inheritance law, and made subordinate to the Ministry of Justice. The National Courts – as they were called in Arabic – were at the time known in English as the Native Courts.

  It seems a little strange that Muhammad Abduh, who had no legal experience whatsoever, should be appointed a judge. However, the main difficulty faced by the National Courts in their early years was a lack of suitably trained personnel. A Khedival Law School had been set up in 1873, but in the absence of adequate funding had failed to develop. By 1880 it employed several language teachers, but only two teachers of law, of whom only one taught the French-style system that was applied in the National Courts. Thus, in the words of one historian of these courts, “a practical savoir-faire, not university diplomas, remained the most important qualification” at least until 1890, when examinations for lawyers practicing in the National Courts were introduced. Many established advocates failed these examinations. When this happened, some argued that the previous system had actually been better – judges and lawyers who might not know much law, but who did know the realities and customs of the Egyptian people, were preferable to those who knew the new laws, but were out of touch with realities. A similar argument about the importance of the appropriateness of laws to actual conditions had been made by Muhammad Abduh in Al-Waqa’i al-misriyya shortly before the Urabi Revolt.

  Muhammad Abduh certainly knew the realities of life in the Egyptian countryside. He had, after all, grown up in a village in the Delta. Three quarters of the disputes that came before him in Banha were between relatives, which somewhat dismayed him, but gave plenty of scope for the application of “practical savoir-faire.” He is reported to have “applied the law with an independence of judgment in interpretation and a freedom from subservient regard for legal forms that led sometimes to criticisms from the more literally minded.”Despite this, his conduct evidently met with approval, as he was transferred first to Zagazig, and then to Cairo where, in 1890, he was appointed to the Court of Appeal. His period of probation in provincial obscurity had lasted only two years.

  In Cairo, he applied himself to the study of French, which he had first started to learn as a student in Afghani’s circle, and which had presumably improved during his stay in Paris. French was not only the language used by writers such as Guizot, but was also the language that gave access to the literature relating to the laws applied in the National Courts. Muhammad Abduh’s approach to the study of French is characteristic. He refused to learn the rules of grammar, and instead used his French teacher to help him read through the works of Alexandre Dumas. A taste for the adventures of d’Artagnan and the three musketeers and for the career of the Count of Monte Cristo was not unusual in Europe at the time, but it was less usual in Egyptian judges. This unorthodox approach worked, as by the end of his life Muhammad Abduh is reported to have spoken “the most perfect French, faultless in its grammar, and almost Parisian in its intonation,” and to have read not only Dumas but also Victor Hugo and Molière, not to mention Schiller and Goethe, Kant and Schopenhauer.

  THE AZHAR COUNCIL

  The khedive Tawfiq, who evidently saw Muhammad Abduh primarily as a former Urabist rebel, died in 1892, and was succeeded by his son Abbas Hilmi, aged only eighteen. Muhammad Abduh immediately submitted to the new khedive a memorandum on his favorite subject, educational reform, dealing specially with the Azhar. This memorandum was favorably received, and when in 1893 the new khedive set up a commission to propose curricula reform for the Azhar, Muhammad Abduh was appointed to it. In 1894, the khedive ordered the creation of a six-man Azhar Administrative Council, consisting of the rector of the Azhar, three other senior Azharis, and two government nominees, to replace the old Azhar Council, which had consisted solely of Azharis. One of the government nominees was Muhammad Abduh, and the other was Abd al-Karim Salman, who had formerly worked with Muhammad Abduh on Al-Waqa’i al-misriyya and who also came from the old Afghani group. Muhammad Abduh thus returned to the institution where he had started his adult life, which he had not then much enjoyed or appreciated, and with which he had had no significant contact since 1877.

  On the subject of the Azhar, Muhammad Abduh and the young khedive were in full agreement. The Azhar mattered because it remained Egypt’s main institution of higher education. It was the primary source of Egypt’s schoolteachers, preachers, and Sharia Court judges, and also had a significant impact on public opinion. It was, however, a mess: disorganized, plagued by scandal and nepotism, or – in the sarcastic words of the progressive intellectual Uthman Amin – “a species of asylum or retreat for the aged, the indigent and the shiftless.” It was also still teaching much the same pre-modern curriculum that it had taught for centuries. Its reform, both in its administration and its curriculum, was thus an essential step in Egypt’s development. The khedive, in his own words, wished “to strike a balance between divine matters and humanity,” as “no institution has the right to stay outside national life and shirk the duty of national solidarity.” The Azhar, as a religious institution, was beyond British control: although the British consul-general did not hesitate to assert his authority over government departments, he followed standard British colonial practice in keeping away from Islam. The khedive, then, could act more or less unilaterally as concerned the Azhar.

  Under Muhammad Abduh’s leadership, the Administrative Council drafted a law on administration, promulgated in 1896. Together with a salary law, this regularized the composition and powers of the Council, and specified two varieties of degree, both awarded by examination. The lower degree of ahliyya required eight years’ study and gave access to employment as a primary school teacher or an imam. The higher degree of alimiyya, available after a further four years’ study, gave access to a teaching post at the Azhar itself and thus to a salary of between 75 to 150 piasters a month. This was considerably lower than the pay received by teachers at the Dar al-Ulum, who earned 400 piasters a month. Presumably in order to lessen hostility to these new measures, existing Azhar teachers could receive up to 300 piasters.

  The Council, which met twice a month, established a formal administration, with offices and clerks. It reorganized the Azhar’s endowment, increasing annual income from about 400,000 piasters to almost 1,500,000 piasters. It gave the Azhar something of the physical and organizational structure of a modern institution. An official school year was introduced, regular class times were established, and rules were made concerning student attendance. Books were collected from around the Azhar and placed in a new central library, accessible to all. Student accommodation was improved, as was hygiene, partly through bringing in running water and partly by retaining a physician and a pharmacist and ordering regular medical inspections of students.

  The Council succeeded in reforming the Azhar’s administration, but had less success with the curriculum. It attempted to add to the study of religious topics the study of history, geography, geometry, and Arabic literature, but the central focus of the Azhar’s education remained much what it had always been. Although some Azharis favored reform, the majority did not, res
enting government interference in their affairs and seeing attempts to add modern subjects as attempts to dilute or destroy the traditional religious curriculum.

  Despite this partial failure, the 1890s were a good decade for Muhammad Abduh. He had returned to Egypt, survived two years in the provincial court system, and had been appointed to a position where he could implement some of the reforms that he thought necessary for the development of Egypt. He was rich enough to afford European holidays, for example in 1894 to Evian-les-Bains, the newly fashionable French spa on the shores of Lake Geneva. It was probably during this period that he also took courses in literature and the history of civilization at the University of Geneva. It was also during this period that he published Risalat al-tawhid, in 1897.

  APPOINTMENT AS MUFTI

  In 1899, the khedive had to appoint a new Mufti of the Egyptian Realm to replace Hassuna al-Nawawi, who he had just dismissed during a dispute about legal reform. The khedive chose Muhammad Abduh.

  One of the duties of the Mufti (the others will be discussed below and in the next chapter) was to approve appointments of judges to the Sharia Courts. Although the jurisdiction of the Sharia Courts had been reduced to family law and inheritance, their functioning still gave rise to official concern, and the British adviser at the Ministry of Justice, Malcolm McIlwraith, had proposed appointing two judges from the National Court system (the system in which Muhammad Abduh had sat on the Court of Appeal). The cabinet had agreed, but the Chief Qadi, who headed the Sharia Court system, objected to what he saw as a further attack on the Sharia Courts. Al-Nawawi sided with the Chief Qadi, despite having the reputation of being a reformer – he had been appointed rector of the Azhar at the same time that Muhammad Abduh had been appointed to the Azhar Administrative Council, and had worked for Azhar reforms, despite his growing unpopularity at the Azhar. After the prime minister had failed to persuade al-Nawawi to change his mind, the khedive summoned al-Nawawi and the Chief Qadi, and tried himself. During a stormy meeting, al-Nawawi was dismissed. The Chief Qadi remained in office, since Egypt’s peculiar legal position meant that he was appointed not by the khedive but by the Ottoman sultan. These events reversed al-Nawawi’s position at the Azhar: instead of being disliked as a reformer doing the business of the British, he became generally respected for his courage and integrity.

  The British consul-general, by then ennobled as Lord Cromer, blamed this failure on McIlwraith, who he described as “full of good intentions, but Scotch and unimaginative.” An alternative explanation was that the position of Mufti of the Egyptian Realm was not an easy one. Al-Nawawi had lasted only two years in the job, and of Muhammad Abduh’s three immediate successors, one would die almost immediately, and the other two would be dismissed, one after nine years and the other after six. The Mufti shared control of the Sharia Courts with the Chief Qadi, not only by way of his role in judicial appointments, but also as one of five judges on the Chief Qadi’s Sharia Appeal Court. The Mufti also sat on a number of government bodies, and confirmed death sentences. One potential source of difficulty was that the Mufti, appointed by the khedive of Egypt, had to act together with the Chief Qadi, appointed by the Ottoman sultan. A greater source of difficulty was that the Mufti and the rector of the Azhar had to mediate between the khedive, who appointed them, and the ulema, who they jointly headed, and who were generally hostile to the reforms instituted by the khedive, often at the instigation of the British. The Mufti was also sufficiently senior to be of direct concern to the consul-general, giving him – in effect if not in theory – two masters. In the words of Lord Cromer:

  The Englishman … could not make the Egyptian horse drink of the waters of civilization, albeit the most limpid streams of social and juridical reform were turned into the trough before him, if the Mufti condemned the act of drinking as impious.

  The Mufti’s role in social reform resulted from the practice of asking him to declare whether or not a proposed measure was acceptable in Islamic terms, and also from the authority that his office gave him (and the rector of the Azhar) in the public debate. The job of the Mufti, then, was in many ways more political than religious.

  Given these difficulties, it is not surprising that Muhammad Abduh hesitated before accepting his appointment. In the end, he did accept it.

  LAW REFORM

  As Mufti, Muhammad Abduh’s immediate task was the reform of the Sharia Court system, the issue that had led to his predecessor’s dismissal. In the true manner of a late nineteenth-century reforming administrator, he set out on a tour of inspection throughout Egypt. At the end of this, he reported that the Sharia Court judges were poorly trained, that the Sharia Courts sat irregularly in dirty and dilapidated buildings, that proceedings were chaotic, and that record-keeping was poor. Most court verdicts were evaded or not enforced, for example when former husbands avoided payments to former wives by spending their money on second wives. Another problem was that the reference books used by Sharia Court judges were not properly organized, in the sense that they lacked indexes, and that rules were mixed in with “controversy, research, and techniques of choosing one rule over another.”

  Many of these issues resembled those Muhammad Abduh had already encountered on the Azhar Administrative Council, where replacing broken furniture and establishing a regular timetable had also been concerns. In a much-read and somewhat controversial book on Egypt in this period, Timothy Mitchell has borrowed from Michel Foucault to show how Egyptian reformers adopted the contemporary European emphasis on formal order, discipline and cleanliness. Egypt had in previous centuries got on quite happily with informal arrangements, in timetabling as in the structure of books. The reference books used by the Sharia Court judges, for example, certainly lacked indexes, but did follow an organizational scheme of their own, and had never been intended to be used as substitutes for nineteenth-century law codes. The new Egypt, however, demanded new approaches.

  The main solutions that Muhammad Abduh proposed were that enforcement of the judgments of the Sharia Courts be made the task of the National Court system, that judges be properly trained, and that the Sharia be codified, i.e. that a modern law code similar to those used in the National Courts replace the existing, uncodified, Sharia. These proposals differed from those earlier made by McIlwraith and rejected by the Chief Qadi and by Muhammad Abduh’s predecessor as Mufti, but they achieved much the same result – and were in a sense more radical, since instead of involving the National Courts in the work of the Sharia Courts as McIlwraith had proposed, they effectively made the judgments of the Sharia Courts subject to the National Courts. Also, McIlwraith had never suggested the codification of the Sharia. A codification had in fact been carried out in 1875, but not enacted; enactment of a codification of the Sharia would not actually happen in Egypt until 1920. Even Muhammad Abduh’s less-radical proposal for a school to train Sharia Court judges was not implemented until 1907.

  Perhaps in recognition that the codification of the Sharia was unlikely to happen soon, Muhammad Abduh also addressed certain issues in the Sharia itself. Egyptian Sharia Courts were then applying the Hanafi madhhab. The term madhhab, often translated somewhat confusingly as “school of law,” denotes an accumulated body of precedent, an internally consistent interpretation of the Sharia based on a particular exegetical methodology. The Hanafi madhhab, named after the eighth-century scholar al-Numan ibn Thabit Abu Hanifa from whom it ultimately derived, was followed by only a minority of the population, but had become the official Ottoman madhhab, in which Egypt had followed suit. The Hanafi madhhab did not allow judgments in absentia, so no judgment could be given when a defendant failed to attend court. This was acknowledged to be a major problem in divorce cases, when a husband could avoid a verdict simply by refusing to attend court. A law of 1897 had attempted to solve this problem by allowing the court to appoint an agent to represent an absent defendant so that proceedings could continue, but Muhammad Abduh reported that this approach was not working and recommended that judges be allo
wed to apply rules from other madhhabs, a controversial procedure known as talfiq. He also recommended that judges be encouraged to prefer maslaha (in this context, equity) to the letter of the law, an equally controversial proposal. With these proposals, Muhammad Abduh used his early Azhar training to engage with Islam at a level of detail which had not previously interested him, and which would not interest him much in the future. These proposals, then, show an alternative Muhammad Abduh: instead of attacking the entire system of taqlid that gave rise to the madhhabs, as he had done before, he was proposing technical modifications that had some pedigree within the ulema’s world. Talfiq, for example, was generally resisted, but had been defended by some ulema.

  The pragmatism and moderation suggested by these proposals was not, however, to be the general tone of Muhammad Abduh’s period as Mufti.

  THE MUFTI

  Muhammad Abduh, Mufti of the Egyptian Realm, had several jobs. His main task was to provide legal advice in the form of fatwas (responsa, non-binding rulings) on questions relating to the issues that came before the Sharia courts: inheritance, endowments, leases, and other aspects of family law. During his six years in office, he issued about one thousand fatwas on these subjects, all of which followed established practice, and so are of little interest. It is possible that he used other ulema to draft these for him, since he produced on average more than three fatwas a week.