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Structure before content on Islam and the state
Discussion of the structure of the state, its functions, parameters and relation to society, should precede debate on the role of Sharia in the constitution, for the extent of the latter depends on the former
Ibrahim El-Houdaiby , Sunday 11 Nov 2012
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For weeks there has been heated debate about the placement of Sharia in the constitution and the need to restrict some of the latter's articles with the laws of Sharia.

This is merely an extension of the controversy over the relationship between religion and state. But no one has presented any serious answers to questions society was suddenly grappling with after the revolution. These are questions that could take years to answer.

The revolution pitted Egyptian society face to face with the harvest of more than 200 years of modernisation associated with despotism, during which the character of the political system has changed.

The modern state emerged after Mohamed Ali came to power and developed — under his family’s rule, followed by a revolution/coup in July 1952 — from above, expressing the will of rulers not society.

The modern state that emerged is different in philosophy, character and scope than the state that preceded it. As Boudin put it, it is sovereign and its sovereignty is indivisible. Hobbes adds that there are no limitations on the measures and decisions of this state. Weber notes it monopolises the legitimate use of violence. Thus, it is an absolute state that governs entirely by centralised resolve over the region it controls, and regulates its social, economic and other relations.

The pre-modern state, on the other hand, derived its legitimacy from outside the political system; its sovereignty was partial and contested by society. It did not monopolise the legitimate use of violence, which was a legitimate right for society in confronting it and others at times.

At the same time, the pre-modern state did not fully subject the judiciary and legislation to its influence, since their powers — at least partially — remained derived from outside. Thus, there was no absolute state that could spread its total influence on all the territories and regulate relations there.

This transformation from pre-modern to modern state in Egypt took one and a half centuries and began with Mohamed Ali, who failed several times to overcome the social pillars of this absolute (namely religious endowments, Al-Azhar and Sufi groups, etc), and ended with Abdel Nasser’s rule. The latter succeeded entirely in subjugating these institutions and others to the will of the state, and continued to spread the influence of the state until it was almost able to entirely regulate social and economic relations. This had a number of ramifications that shaped the relationship between state and society, and the forms of roles and parameters of the state.

The transition from a pre-modern to a modern state is a change in the “headquarters of power” that was rarely the subject of debate. The transformation needed to uphold legitimacy and genuine cultural independence requires revising solutions presented by the modern state to key questions that the political foundation is built on and that forms the governing regime, instead of wasting energy bickering over content disseminated within the structure of the existing political system.

One of the issues that must be discussed is sovereignty, which the modern state has put itself in charge of. Also, the relationship between state and society, its foundations and how to regulate it, as well as how to acquire ownership, its parameters and the role of the state in regulating and protecting it (the modern state believes it owns everything because it is absolute, and therefore the dispute is how to distribute this ownership among citizens. This is not an established concept except for the modern state, and from here, the notion of endowment that goes beyond the legitimacy and authority of the state). And other such questions.

Avoiding looking into these issues means surrendering to the existing structures and accepting its provisions, and limiting disputes to the content it generates. This eliminates the principles of the project for cultural and knowledge independence by accepting the opposite, then trying to defend its branches by “Islamising” the legislation of the modern state. This makes the success of this effort almost impossible because it is difficult to build a branch on a foundation that is unsuitable.

This deficiency causes major intellectual anomalies for Islamists since their efforts become focused on “reforming” the tools of the state. Historically, society played a more influential role in protecting religion and its rulings than the state did. At the same time, accepting the structures and philosophy of a modern state means that everything they want to apply within this entity must comply with Sharia. This highlights obvious incongruities because of differences in the philosophical bases of either state.

Combining the two is the outcome of ijithad (deliberation) to reach rulings that are “appropriate for application,” even if they are not scientifically accurate.

As Islamists become more integrated in the modern state the criteria for validity often becomes more important than the criteria for being right, which is justified by rhetoric about “jurisprudence of necessity” and “jurisprudence of reality.”

In the final analysis, this strips the Islamists of all power to push towards intellectual and knowledge independence, and makes them a conservative political force that operates within the framework of a modern state, not one that is trying to change it. The “necessity” thus becomes the norm, while continuing in that direction means the emergence of a political/religious force that is less integrated in the political fray, and more focused on being “correct” at the expense of the criteria for validity.

The ongoing debate about the meaning of applying Sharia — while avoiding the main questions relating to the issue — is not serious, as each side is more interested in protecting political gains rather than “the project” which requires a deeper discussion than the ongoing one. What needs deeper discussion now is not whether Sharia exists or not in some articles of the constitution, but the structure of the state, its relationship with society, its key duties and the parameters of its functions.





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Hani booz
13-11-2012 02:35pm
1-
1+
You need to be more explicit
I read you excellent essay with concern.You seem to be a good academic but lacking the connection to the people.It reminded me with Amr Mossa program for the election.I disagree with you Regarding Mohamed Ali.We owe to that illiterate genius.He was no saint but managed to build a poor backward nation into modern rich society.We were 4 millions population when he took power more or less the population of United states at the time.We have to be pragmatic about our constitution.As we are quarreling about it perhaps we need the spirit of AL Sanhory to guide us.
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