An Introduction to Islamic Law (34 page)

It was
Sadat’s liberalizing policies that ushered in a new stage in the rise of the Islamist movement. Alleviating the oppression against the Muslim Brothers and releasing the groups’ members from prisons, Sadat began his rule with a policy of appeasement – promising, furthermore, to consider ways to implement the Shari
a
. Article 2 of the
1971 Constitution stipulated that Islamic law is “a principal source” of legislation. (In 1969,
a Supreme Court had been created and in 1971 it was renamed as the
Supreme Constitutional Court [SCC], whose function was to curb infringements by the legislative and executive branches.) Although a legislative parliamentary committee was to prepare laws in line with Article 2, and although Azhar was supposed to, and did, provide direction and assistance in drafting these laws, nothing came of what was, with the benefit of hindsight, little more than an act of lip service on the part of the regime. With a judiciary and a Parliament staffed by a liberal and secularized majority, Article 2 appeared to be no more than a rhetorical ploy.

In the meantime, the Islamist movement gained strength, and the ruling elite needed Azhar more than ever to combat the increasing pressure coming from the Islamists. The more Azhar was needed and the more it offered its support to the regime, the more assertive it became, and the more it called for the implementation of the Shari
a. And to avert the political sting of the Islamists, the regime was willing to make concessions on the less innocuous legal front, concessions that happened to favor its ally, Azhar. And so in 1980 the
Constitution was amended, and Article 2 changed to stipulate that the Shari
a “is the principal source of legislation
.”

But not much happened. No Islamic laws were passed, and no new cases were to constitute any step in that direction. Frustrated by the government’s lack of legislative action, the Islamists mounted challenges to the SCC, bringing cases regarding laws they alleged (often rightly so) to be in contradiction to the Shari
a, and requesting that the SCC declare them, by virtue of Article 2, unconstitutional. This challenge also included Law No. 44 of 1979, the so-called
Jihan’s Law (which extended the duration of
child custody for
divorced mothers, and, even more importantly here, made a husband’s marriage to a second wife an element automatically constituting harm to the first wife and therefore giving rise to divorce by operation of the law). But this Law and the other cases reviewed were dismissed without reference to their (in)compatibility with Article 2, which was one way for the SCC to avoid defining, once and for all (it was thought), what is exactly meant by the term “Shari
a” mentioned in Article 2.
Jihan’s Law was struck down on the grounds that it was passed through unconstitutional means, and the cases were dismissed on grounds of non-retroactivity. The Shari
a of Article 2 was left undefined.

It was not until 1993 that the SCC delivered a definition of what the Shari
a, in its opinion, meant. Under overwhelming pressure from the Islamists, it pronounced that the Shari
a in effect amounts to the broad legal principles laid down in the Quran, as defined by the consensus of
jurists over the centuries. These were defined as fundamental principles, not specific rules, and as general and universal principles they are applicable to any society in any age. A case in point is the principle that law should not be harmful to Muslims. Accordingly, any law that does not violate any of these principles is one that does not stand in contradiction to the Shari
a. But who is to make a determination of these general principles, and how? How is the actual power, or mere potential, of laws to harm or to benefit to be determined?

In answer to these questions, the SCC took the bold position that any
judge presiding in the
national courts can be a valid interpreter of these general Shari
a principles; which, in effect, amounted to the proposition that these principles are so general that any person having basic knowledge of “Islamic law” – but who is sufficiently trained in modern law – can derive such principles from the Quran and the consensual practices of the jurists over the preceding twelve or thirteen centuries.

The SCC’s answer became the new bone of contention between the state and the Islamists. The challenge put forth by the latter was as much legal as political. The Islamists insisted – as their ideologue
Qutb had done half a century earlier – that such exercises in
interpretation are nothing short of human legislation producing a system where men rule over each other. The secular training of the
national-court judges equipped them, even with the best of intentions, to extract nothing more than the most general of principles. Their well-nigh ignorance of Shari
a’s rules, of Quranic exegesis, of
hadith
(which the SCC largely ignored), and even of basic skills in classical legal Arabic, largely barred them from any genuine understanding of what Shari
a’s rules signified or even technically meant.