Egypt’s Constitutional Crisis

Egypt is in the grip of another in a series of what appear to be unending crises threatening the viability of a transition to a democratic order.  This current crisis is the result of the interaction of three factors: the first is the inability of the constituent assembly to reach a consensus on provisions in the constitution dealing with the role of Islam in the state and the extent of individual freedoms.  That this should have been a stumbling block could hardly have come as a surprise to anyone with an inkling of knowledge of Egyptian political history over the last 75 years.   The second is the looming threat that the Supreme Constitutional Court could dissolve the Constituent Assembly on the grounds that because it was appointed by a parliament which was itself dissolved, it lacks valid legal authority to perform its work.  The third is the omnipresent threat of imminent economic collapse if the Egyptian state cannot reconstitute itself in a reasonably timely fashion, something that must have been a precipitating factor in President Morsi’s sweeping decrees of last week.

Given that the draft document is, as Ellis Goldberg has pointed out, the most explicitly communitarian constitution in Egypt’s history, it is not surprising in the least that non-Islamists should object to it.  At the same time, however, it would require an heroic act of wishful thinking to deny that the communitarian aspects of the draft constitution do not reflect the sentiments of large sections of today’s Egyptians.  As the Stanford political scientist Lisa Blaydes pointed out in a Huffington Post article written shortly after the Jan. 25 Revolution, “the social and religious preferences of the Egyptian public are among the most conservative in the Muslim world.” And, the leadership of Egypt’s religious parties have proven successful in mobilizing this base.  After all, Muslim Brotherhood and Salafi candidates won almost 75% of the seats in the first post-revolution parliamentary elections.

More surprising, however, is that there seems to be a relatively high degree of agreement regarding the operational provisions of the constitution, i.e., the nuts and bolts of government regarding the powers of the different branches and basic political rights.  The Egyptian constituent assembly largely drew on Egypt’s previous constitutions — which themselves are inspired by the constitutional traditions of the French — to determine the governing structures of the post-revolution state.  Ellis Goldberg has rightly, I believe, called this structure “an Islamic rechtstaat.”  This is consistent with what I suggested in a piece written shortly after the Tunisian and Egyptian revolutions, “Modernist Islamic Political Thought and the Egyptian and Tunisian Revolutions of 2011.”

The goal of Islamic Modernism in the political sphere was the establishment of a new kind of Islamic state, one which would govern broadly within certain Islamic parameters, but whose substantive lawmaking would be determined through deliberative, largely non-theological modes of political reasoning.  Crucially, this movement sought to make executive authority accountable, and to liberate the Muslim political community from the limitations imposed on it by traditional religious leadership. In a word, it sought to democratize Islamic governance by removing the twin monopolies that had characterized traditional Islamic polities: the monopoly of the ruler in setting policy, and the monopoly of the clerics in making law.  The Islamic rechstaat does that by providing a means to hold the executive accountable through regular elections and a parliament, and it places lay experts and representatives of the community in the primary position of responsibility for drafting legislation.  This model goes back at least as far as Khayr al-Din al-Tunisi’s writings in his work Aqwam al-Masalik.

The role of freedoms in modernist Islamic political thought is primarily instrumental: rights are thought of as the most appropriate means to control arbitrary government, promote rational lawmaking to achieve the public good, and achieve economic development.  Here, Rifa’a Rafi’ al-Tahtawi’s writings on freedom in his work al-Murshid al-Amin are particularly significant: the apex of freedom for Tahtawi is civic freedom — al-huriyya al-madaniyya — which is that freedom that is guaranteed by membership in a political community and whose purpose is to achieve perfection of civilization, al-tamaddun.  The content of civic freedoms in Tahtawi’s thought is not determined by reference to natural freedom — which he dismisses as a primitive condition that membership in a polity transcends — but rather by reference to the common political project of perfecting the homeland.  Rights for him are indelibly part and parcel of this shared political project whose goals are both moral and material: the latter in the promotion of the arts, sciences and commerce, and the former in producing citizens who exhibit the virtues of mutual solidarity — both positively (they support one another in the exercise of the their rights) and negatively (they stand together against those who violate their rights) — and achieve civic perfection only when citizens have internalized the golden rule of Islam: “None of you believes until he loves for his brother what he loves for himself.”  Equality is a foundation of civic freedom: there can be no classes among the citizenry, but for al-Tahtawi, the shari’a provides the moral foundation for civic freedom because it provides the true grounds for tamaddun, and while rational conceptions of tamaddun and Islamic conceptions of tamaddun usually complement one another, they can conflict, and when they do, the Islamic conception must prevail, because we know it to be the true conception of civilization.  Accordingly, for Tahtawi, the question of non-Muslims really never comes up in his writings — as far as I can tell — except to insist that they be given equal rights to Muslims, but note that because his conception of civic freedom is constitutionally derived from Islam being the true source of civilization, non-Muslims receive the benefits of Islamic tamaddun, but really have no role to play in fashioning it, at least not with respect to its foundations, although in all cases where rational conceptions of tamaddun overlap with Islamic ones, it would seem that equality would require recognizing an equal status to non-Muslims in determining the details of public life.

This history is relevant for two reasons: first, it confirms that the history of a demand for an Islamic rechstaat is deeply rooted in Egypt’s modern political history, and it should not be dismissed as the demands of a “johnny-come-lately” band of religious extremists.  If anything this history of Islamic political modernism should give comfort that religious extremism, although present, is not deeply rooted in Egyptian political thought. Second, it also suggests that there continues to be a surprising amount of overlap between the concerns of the supporters of an Islamic rechstaat and generic liberals, namely, having accountable government, institutions that produce laws rationally related to the public good, promotion of economic development, and encouraging the participation of the public in communal governance.

It is for this reason, I suppose, that there has not been a great amount of controversy regarding the structure of governance.  But is the controversy over the Islamic qualification of the rechstaat sufficient to scuttle the transition, as now may be the case?  In my opinion, it should not, with the proviso that there will, in fact, be competitive elections and multiparty democracy in Egypt once the transition is completed.  If this condition is satisfied — and it seems that the draft constitution clearly contemplates that it will — there is no reason to believe that the Islamic component of the rechstaat will overwhelm everything else.

Right now, however, it seems that Egypt’s non-Islamists lack the confidence that they can compete electorally against the Muslim Brotherhood and the Salafis, and for that reason, they want the constitution to place firm limits on the law-making power of the new state.  I have little confidence, however, that a constitution guaranteeing individual rights would be anything more than a “parchment barrier” in a polity that lacks electorally competitive non-Islamist parties that seem to be incapable of competing with the Islamists with respect to cultural authenticity.

The non-Islamists seems particularly alarmed by the draft article 220.  This article provides that:

The principles of the Islamic Shari’a include its [Sharia’s] general sources [Qur’an, Prophet’s Sunna/sayings and actions, consensus, reasoning from analogy], the principles and maxims of its [Sharia’s] theoretical and practical jurisprudence, and its reliable and authoritative sources in Sunni [orthodox] legal and theological reasoning.

This provision, however, coupled with Article 2, is always subject to  the strictures of public deliberation; it does nothing more than provide that in the course of lawmaking, the Egyptian state, which is to legislate in light of the principles of the Sharia, may also take into account these detailed provisions of the Sharia.  Anyone with any knowledge of Egypt’s modern legal system already knows that this, in fact, is what already takes place. This is no great victory for the Salafis.  And in fact, if Egyptian courts could be liberated from their slavish positivism, they could use many principles from Islamic law to fill in the numerous gaps in Egypt’s current system of statutory law.  The problem, however, is that it seems that today’s generation of Egyptian non-Islamist leaders — unlike those from a century ago — have lost the ability to appropriate the Islamic tradition to further the national political project, or they have lost confidence in their ability to do so effectively.  And that is what makes them, I think, feel so vulnerable.

On the other hand, were they simply to stop challenging these Islamic provisions, they would not be open to attack on religious grounds and could instead focus on showing that they are better equipped to deal with Egypt’s practical problems: that is also a source of legitimacy in Islamic political modernism, and one which they should latch on to, and quickly. I don’t believe that continual questioning of the explicitly communitarian character of the constitution will work, even if their criticisms are perfectly valid.  It would be much better for themselves, and for Egypt, if they focused exclusively on making the constitutional document the best they can with respect to the institutions of governance, and then compete vigorously over who is best able to direct Egypt’s development.  That is a battle they could very well win, unlike the communitarian one.