The Draft Egyptian Constitution: The Communitarian Dimension, Part I

Nov 07

The Egyptian Constitutional Assembly has finally completed a draft constitution for post-revolutionary Egypt, issuing it to the Egyptian public for their consideration almost a month ago.  (An English translation of the draft may be found here.)  As is the case with everything in post-revolutionary Egypt, the draft has proven to be extremely controversial, and has elicited widespread criticism, particularly from human rights organizations for its failure to meet international norms with respects to rights of women, children and freedom of religion.  Ellis Goldberg, meanwhile, has published a lengthy and very thoughtful analysis of the draft text in two parts on his blog, Nisr al-Nasr (Part I and Part II).

The content of the draft neither surprises me, nor does it necessarily disappoint me: as I wrote shortly after Mubarak resigned, I thought it was unwise to attempt to draft a constitution before the transition had been completed because the drafting process itself would have the likely result of dividing the country rather than unifying it, and that a more prudent course would have been to defer the project of a constitutional and instead focus on a series of pressing practical problems that it appeared to me to have the potential to garner the support of a fairly broad and deep cross-section of Egyptians who participated in the January 25th Revolution.

Professor Goldberg expresses the problem facing drafters of a constitution succinctly when he says “real constitutions, especially those that work, must command sufficient assent to function and that requires unpleasant political compromise about the messy details of power at a given time and place along with principles that will last for an age if not necessarily for all time.”  It is therefore fundamentally unfair, and unrealistic, to judge Egypt’s draft constitution by constitutional principles enshrined in other states that have had a much longer history of democratic governance than Egypt.  Whatever the final text of Egypt’s post-revolutionary constitution will say, it must be responsive to popular demands while at the same time having sufficient flexibility to respond to new popular demands. In order to judge the relative success or failure of the proposed constitution, then, we need to consider it from the perspective of Egypt’s own political history, first and foremost. Only then can we make a meaningful contrast between its provisions and those that are said to constitute international standards.

It is from this perspective that I judge the communitarian ethos that Professor Goldberg rightly points out infuses Egpyt’s draft constitution.  From the beginning of Egypt’s Nahda in the middle of the 19th century, leading Egyptian figures such as Rifa’a Rafi’ al-Tahtawi, Qasim Amin and Muhammad ‘Abduh, and non-Egyptian figures such as Khayr al-Din al-Tunisi, al-Tahir al-Haddad and Rashid Rida, called for more or less radical moral and legal reform in the Arab world generally and Egypt particularly, but none of these figures, as far as I know, ever articulated a non-religious conception of the political community.  Instead, they all argued for a reformed religious conception that would ultimately allow for much broader participation in the articulation of the norms of the Muslim community: these reformers fought against the monopoly the professional clerical class, the `ulama’, enjoyed in defining the contents of normative Islam, largely by arguing against doctrines such as the obligation to exercise deference to historical opinions (taqlid), asserting the right of Muslims to formulate their own understanding of what Islam required by directly interpreting revelation for themselves, and arguing that rational, positive law was consistent with, and perhaps was even required by, a faithful commitment to the Shari’a in this age.  One could say that these reformers sought a more democratic approach to the understanding of Islam, but nevertheless it was an Islamic approach that laid to the foundation for their conception of political community.

Of course, Professor Goldberg suggests that Taha Husayn, another leading figure from the Nahda, would not have approved of a constitution calculated “to reinforce the role of the Arab-Islamic heritage.”  I assume that this is true, but I am not sure on what basis we can judge whether Husayn should be elevated to “the most celebrated intellectual of the Nahda in Egypt.”  Maybe Husayn deserves to be “the most celebrated intellectual” of 20th century Egypt, but there is little doubt that he does not qualify as the most influential intellectual of that period.  Taha Husayn earned notoriety for a willingness to confront taboo subjects as when he questioned the authenticity of much of the pre-Islamic literary corpus in his controversial work, Fi al-Shi`r al-Jahili (On Pre-Islamic Poetry).  More significantly for purposes of this discussion, however, was his work, Mustaqbal al-Thaqafa fi Misr (The Future of Culture in Egypt).  In this latter book, he argued, essentially, that Egypt would look increasingly to Europe as its cultural model and less and less to its Arab and Islamic past.  There was certainly good reason, writing prior to World War II, to assume that European cultural achievements would prove irresistible to Egyptians, but looking back at his prediction, it almost seems quaint, if not utopian.  We can wring our hands, or celebrate this fact, depending on our perspective, but I doubt few would disagree that his assumption proved to be wrong.  Indeed, an Egyptian scholar, author and one-time minister of education, born one generation after Husayn, Sulayman Huzayyin, published a book with a title intended as a direct slap to Husayn’s contentions in Mustaqbal al-Thaqafa fi Misr, titled Mustaqbal al-Thaqafa fi Misr al-‘Arabiyya (The Future of Culture in Arab Egypt).

But even in Husayn’s own day, his contemporary ‘Abd al-Razzaq al-Sanhuri, had already begun the process of inscribing the idea of Egypt as a moral (Islamic) community into Egypt’s laws with his civil code.  For sure, Sanhuri was not what anyone today would call a religious fundamentalist, but he was certainly not indifferent to Egypt’s status as a moral (Islamic) community, something he was sure was worthy of preservation and something he believed his project of a modern Islamic civil law code would assist in bringing about.  Reading his personal diary reveals both principled, religious motivations for his work, i.e., a belief in the truth of Islam, sentimental attachment to “Eastern civilization,” which he believed was unique and deserved to survive into the future, and cold political calculation, i.e., that the idea of Islamic brotherhood was crucial to promotion of peace and prosperity of “Eastern countries,” by innoculating them against the virus of nationalism that had led to the deaths of millions of Europeans in World War I, and then again a generation later in World War II.  And although his conception of the moral community that existed in Egypt was cosmopolitan — he suggested that the modernized conception of Islamic law would welcome non-Muslim scholars as well as Muslim scholars and that it would be receptive to principles from any legal system as long as it was not repugnant to the fundamental principles of Islamic legislation — he nevertheless believed that this was an Islamic and humanist project, and that the latter would be subject to the former, not the other way around.

In this respect, one could say that Sanhuri was like al-Tahtawi: al-Tahtawi, writing in his al-Murshid al-Amin li-l-Banat wa-l-Banin in the latter half of the 19th century, also spoke of a universal, human civilization based on the spread of reason, progress and human brotherhood, grounded in equality, but at the same time, he insisted that Muslim polities (al-mamalik al-islamiyya) would necessarily have a different civilization (tamaddun), at least in some respects, from European civilization,  because the latter’s values were entirely secular (`aqliyya), whereas the civilization of Islamic states was based on a hybrid culture of revealed norms and rational norms.  While in most cases, these do not result in any contradiction, al-Tahtawi insists that if they do, the revealed norm must control, because in that case, revelation’s teachings function to instruct us that what reason teaches, at least in that case, is not an authentic part of civilization.  Significantly, the one area that he identifies as an actual arena for conflict is sexuality: while reason finds nothing objectionable in the unrestricted mixing of the sexes, revelation has taught Muslims that this is impermissible, and thus, Muslim states will act to place restrictions on such mingling, with the result that women will have less opportunities in the public sphere than their sisters in purely secular civilizations.

We see this structure replicated, precisely, in Article 68 of this draft constitution: it obliges the state to promote the secular value of equality, but only insofar as it does not undermine the revealed norms of Islam.  This approach to secular rationality is hardly an invention of the Muslim Brotherhood, but goes back, as I said, at least as far as al-Tahtawi, and in fact, was already the practice of the Egyptian State before the January 25th Revolution.  Accordingly, Egypt entered certain reservations to various human rights conventions to which it is a party based on shari’a norms, including the two International Covenants on Civil and Political Rights; on Economic, Social and Cultural Rights, and the Convention for the Elimination of Discrimination Against Women.  The point is not to say that such limitations, whether as suggested by Tahtawi in the 19th century, the Egyptian government or this constitution are justified in an absolute sense, but only to point out that they are hardly an attempt to introduce a radical break from a well-established Egyptian consensus on Islam and the state, and the rights of women.

If these provisions are essentially status quo provisions, however, why put them in the constitution?  Professor Goldberg is certainly correct in his observation that this draft is much more explicitly communitarian than Egypt’s 1923 constitution.  This is only speculation, but it may be because of the deepening cultural split between the Islamic world — which Egypt fervently asserts forms the foundation of its communal life — and the western world with respect to sexuality.  One hundred years ago, a reformer like Qasim Amin or Hoda Sha`rawi, could write approvingly of the gains made by European and American women, and argue that a proper understanding of Islam did not prohibit Egyptians or Muslims from adopting these changes for themselves.  I could be mistaken, but I don’t know of any Egyptian figure of the stature of Qasim Amin or Hoda Sha`rawi that has publicly endorsed the sexual revolution, much less has advocated for it to become a constituent element of Egyptian culture.  With the increasing distance between the Muslim world and the west on questions of sexuality, it is not surprising that Egyptians might use their constitutional moment to declare that they have a different approach to these questions and that this difference is constitutive of their public order.

I suspect that the vast majority of Egyptians — Christians and Muslims — reject the ethics behind the sexual revolution.  Substantively, then, it is hard to criticize Article 68 from the perspective of majoritarian democracy: the vast majority of Egyptians simply do not believe in the value of sexual freedom, for example, and accept the notion that some kinds of gender distinctions within the family are acceptable. Perhaps it would have been better then for the constitutional drafters to have expressed the limitation in religiously inclusive terms rather than solely Islamic terms, e.g., dun ikhlal bi-l-shara’i` al-samawiyya (without undermining revealed laws).

But what about Taha Husayn’s vision for a post-Islamic Egypt?  Certainly such a trend existed in Egypt, and it was perhaps socially ascendant after World War II until the 1967 War, but it never made the principled case for a post-Islamic society.  Instead, it assumed that religious sentiment would wither on the vine as if by magic, perhaps as a result of “progress.”  That may in fact have been the case, but the “progress” which was to transform Egypt into a post-religious society never came, or it did not reach far enough to achieve its goals, and in fact, during the long decline known as the Mubarak era, religion returned to prominence, if only because the Egyptian state effectively withdrew from so many areas of civic life, leaving ordinary Egyptians dependent on communitarian organizations to provide public goods such as health and education.

To conclude, the draft Egyptian constitution is indeed strongly communitarian, but not in a way that is radically different from contemporary Egypt and its values.  Instead of decrying its communitarianism, Egyptian liberals desperately need to regain an ability to speak the moral language of the Egyptian people rather than the abstract rights-based discourse of human rights.  More distressing to me than the communitarian language of the draft constitution is the seeming inability of leading Egyptian liberal figures to adopt a political rhetoric that is responsive to the moral imagination of the median Egyptian.  Islamist intellectuals, it is important to note, do no suffer from this failing: they have, to a great extent, successfully assimilated many categories of modern political thought, including values of gender equality, into their political discourse.  It seems hard to believe that Egyptian liberals cannot do the same in reverse.

Finally, modern Egyptian history has been focused primarily on development, not rights, and as I will discuss further in Part II of this topic, democracy,as a historical matter in modern Egyptian thought, is understood first and foremost as a tool for restricting the arbitrary exercise of power as a condition for the achievement of the collective goal of development, not the furtherance of individual rights.  That largely explains the structural aspects of the draft constitution. So, Egyptians will assess this constitution primarily on its ability to secure economic development, and only secondarily on its ability to secure individual rights, but more on that later.

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