A Return to the Shariah? ; A Return to the Shariah?: Egyptian Judges and Referring to Islam
The present article seeks primarily to explain how in contemporary Egypt reference is made to the sharî'a islâmiyya, the Islamic law, taken here in a wider sense than its strictly legal one. Indeed the sharî'a is often referred to as the principle explaining the Islamic project. However few attempts have been made to analyze the content of this reference and its methods. Does it refer to a clearly identified legal model that would thus only need to be reinstated, or are we dealing with a purely ideological discourse that uses the Islamic idiom for strictly political ends? The situation is not clear-cut, and I will seek to show the complexity of the use of references to Islam in Egyptian legal practice. I will do so in three steps. First, I will briefly survey the fields of Egyptian law where reference to religion is explicitly made. This will provide us with the main elements of the issue at hand and will put an end to speculation on the radically Islamic nature of Egyptian law. While doing so, I will also draw a basic typology of the judicial rulings referring to Islam. This will give us an initial insight into the ways legal practicians interpret texts, some of which refer to Islam. This first section will thereby allow us to gauge the scope of the legal provisions on which the Islamic discourse focuses and the ways by which the judges use or get round the breaches that are thus left open. In the following section, I will sketch a typology of the perceptions of the sharî'a that the practicians of Egyptian law may hold. The aim is to look at how legal practicians use their readings to serve their ends. In examining what the legal actors think is or ought to be, I seek not to substantiate their discourse but rather to locate them in a power structure of which their discourse is both a reflection and a determining factor. A series of interviews with lawyers, judges, and professors of law, sharî'a, and fiqh provides us with a body of perceptions of law and of the various legal repertoires that jurists use professionally and claim ideologically. Finally, to conclude my overview, I will examine three recent cases in order to lay the foundations for my non-substantialist approach to Islam and to the normative discourse that claims to draw from it. There is the Abu Zayd case, in which a divorce was enforced on grounds of apostasy, a litigation on the wearing of the veil at school, and a case of trans-sexuality. In my view, these three cases reflect well the malleability of the reference to the sharî'a in Egypt, that is at least within the realm of law. The sharî'a stands out as a legal repertoire, that is a resource that practicians have at their disposal and that they use simultaneously or in conjunction with others, in a game whose nature seems primarily rhetorical or discursive. These available means of discourse and legal action are more or less used, according to the circumstances of time and place. It is this use that gives them a meaning, a content, and not their inscription on tables of the Law that are set for eternity. In this sense, the so-called return to the sharî'a should be viewed as the invention of a new sharî'a in the contemporary political, legal, and judicial setting.
