A history of the state told through the senses

This conversation with Youssef El Chazli was published din Mada Masr on 8 June 2019

Khaled Fahmy, who holds the Sultan Qaboos bin Said chair in modern Arabic studies at the University of Cambridge, has worked tirelessly to scrutinize and reevaluate dominant narratives and historical assumptions about the Egyptian state and its many institutions. In his first book, All the Pasha’s Men, Fahmy took up the narrative of Mohammed Ali’s construction of modern Egypt, in particular the role the construction of the army played in this trajectory. As Amr Ezzat wrote in an article in al-Shorouk in 2013, the book was an attempt “to read history from below: what happened to people as the state was being established and erected?”

In Fahmy’s latest work, In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt, published by the University of California Press in 2018, he offers a corporeal history of modernity in Egypt. Focusing on changes in medicine and law in the 19th century and their mutual impacts, Fahmy suggests an alternative narrative of the formation of the modern Egyptian state. In particular, Fahmy looks at the uses of shari’a (Islamic law) in this historical period, prior to British colonization, and the different way it was invoked in the qadi court, which was a core judicial institution in Egypt throughout the Ottoman era. He also looks at what was called magalis al-siyasa, which were legal-cum-administrative councils established in the mid-19th century to adjudicate serious criminal cases as well as commercial and land disputes.

Fahmy also looks at the simultaneous evolution of the medical system and the emergence of practices such as autopsies and forensic chemistry, as well as their intimate ties to the law and the process of modern state formation. He bases his narrative on the immense archival material found at the Egyptian National Archives, spotlighting among other things ordinary Egyptians’ responses to these shifts.

Throughout the work, Fahmy engages with many schools of thought, as well as many intellectual and political currents, from post-colonialism and classical historiography on 19th-century Egypt to Islamist narratives about the history of law and popular understanding of the rise of the the modern Egyptian state. Perhaps his central premise and starting point is that an analysis of the transformation of the legal system that focuses solely on intellectual and conceptual shifts is necessarily incomplete. Instead, we must go back to the archives and empirical data to see the real changes that took place in this period, where they came from, what caused them, how they took place, and what reactions they engendered.

We met with Professor Khaled Fahmy in late June 2018 in his office at the University of Cambridge to talk about his latest book and his methodology as a social historian.

Youssef El Chazli: Can you tell us about your new book, which you’ve been working on for several years? Perhaps you can briefly sketch out its main idea?

Khaled Fahmy: I don’t think I can, because I’ve worked on it for years…

YC: What was the starting point then?

KF: Yes, the best way for us to talk about it is to start at the beginning.

It started in the archives when I was working on my first book [All the Pasha’s Men], which was about the history of the army. I stumbled across a set of documents related to health services in the Pasha’s army. These took the form of daily logbooks, and they included a blank form that was printed and distributed to military doctors attached to the field army in Syria during the Egyptian deployment there in the mid-[18]30s. I was reading them — the form was just astonishing — and one caught my eye. It was about sexual diseases, which were referred to as ferengi, i.e. the Frankish disease. This is how they referred to syphilis at that time. The army doctor would write how many people were diagnosed with that illness each day and, in another slot, he would insert the medication. It was astonishing and I became curious. I was primarily interested in these medical reports as they allowed me to get closer to the soldiers — physically closer, in the literal sense, meaning I could see how they were examined, how their bodies was examined by the piercing medical gaze and controlled by the tight medical system. In the end I wrote an entire chapter about the topic.

YC: In your first book?

KF: Yes, in All the Pasha’s Men. When I finished my doctoral thesis, I kept working in the National Archives because I found the material there fascinating. I started following up on that topic, on health and medicine. At that time, Amira El-Azhary Sonbol published her book, The Creation of a Medical Profession in Egypt, 1800–1922. What I was reading about in the Archives was indeed the creation of the medical profession, but there was no relationship whatsoever between that book and the archival material in front of me. Sonbol’s book relied on the work, writings and correspondence of Clot Bey [the French doctor appointed by Mohammed Ali to establish the army’s medical department, and who later founded the Medical School at Abu Zaabal, which subsequently became Qasr al-Aini Medical School]. By contrast, what I was seeing in the Archives was the everyday functioning of this health department. This department had problems, and Clot Bey wrote about some of them and so they’re in that book. But for the most part, the Archives offer a wholly different picture, in my opinion a more realistic picture, or at least more important for us. Why? Because in my mind it offers a more wholesome picture than that offered by Sonbol’s book.

YC: Sonbol’s is top down?

KF: Not only that. She effectively argues that we had an outstanding health administration until the British came in 1882. The British destroyed this huge achievement. This happened when they started charging fees for education at the Qasr al-Aini Medical School and when they changed the language of instruction to English, and so on. She blames colonialism. For me, the question is, okay, but before colonization, what were the problems?

In this way I became interested in the history of medicine and public health. I stumbled across incredible medical material in police records. What I found were not isolated reports. Rather, they were reports written by medical doctors and embedded within a larger report prepared by the police of investigations they had conducted in particular cases, for example a case of rape or murder. By reading these medical reports, effectively forensic medical reports, I understood much about how people were interrogated and what prompted them to go to the police station where they’d be detained and questioned. There material was so rich and it led into many directions, opening up lots of fascinating stories. But I was only interested in the medical aspect of these cases, and I wondered how I could use this material to do a social history of medicine. I mean, we know all about Clot Bey, but I wanted to know what modern medicine meant to people at the time.

I found myself being carried from one thing to another. I was initially interested in medicine and it led me to the police, so I got into the police records and found these medical reports. The thing that ultimately resulted in the book I wrote is that I was trying to know not only who these doctors were, what kind of medicine they studied and how it was different or new, and what people’s relationship to it was, but also what these police reports were in the first place.

What I found is that the police reports, at the end, tell you that they were sent to something called Maglis Misr (the Cairo Council). But what was this council? I started to wonder. I began to read about it and found an entire archival unit called al-madhabit al-sadira, that is, minutes of legal cases. Then I came across something called Maglis Isti’naf, (the Appeals Council) and something else called Maglis al-Ahkam (the Council of Judicial Ordinances). Each report summarizes the facts of the case, but the summary is long, maybe four or five pages, in contrast to the records from the shari’a courts, which are brief and formulaic. In fact, what I stumbled across is a collection of records that can help me piece together an entire legal case from beginning to end. It starts with police inquiry, then moves through the investigations and interrogations, and in the end you get a whole narrative that even ends with a punchline, so to speak, with a legal sentence. This sentence is then sent to the Appeals Council, which looks into the case, and then it forwards the case to the Council of Judicial Ordinances where the sentence is either ratified or revised.

So there’s a sequence and a hierarchical progression. And there are references to laws. They may say, “Based on Article 3 of Chapter 5 of the Law.” It turns out that this law was the Humayauni Code, which was an Ottoman criminal law that had originally been issued by the sultan in 1850 and two years later it was applied in Egypt after certain amendments related to who has the right to issue death sentences. These amendments were the result of lengthy diplomatic negotiations between Cairo and Istanbul revolving around questions of sovereignty. Anyway, this is the law they are talking about. I started studying it and was intrigued by how the councils applied it.

In short, what I discovered was the archives of an entire legal system, not only the records of a medical system. There are only two people who have worked on this legal system. The first is Emad Helal of Suez Canal University, a very respectable professor and colleague who has been working on these same cases for a long time. The second is a highly respected professor of Islamic studies at the University of Amsterdam, Ruud Peters. They have done incredible work. I see my work as building on theirs and engaging with it.

Basically, what I discovered was the archives of a very evolved legal system that is only little understood. It is referred to as the siyasa system. Siyasa here does not mean politics, but it means the fiqhi concept of al-siyasa al-shar’iya, meaning legislation that complements the fiqh (Islamic jurisprudence) and which was considered part of shari’a.

And so, I started writing several scholarly articles to make sense of what I was finding in the archives. One was about the police, another about autopsies, a third about the school for midwives, and a fourth about how people received and reacted to modern medicine. There was little analysis in these articles. I was simply trying to gather my thoughts on these particular subjects knowing, at the back of my mind, that something linked them together. But what exactly? It still wasn’t clear. Every year I’d go to the National Archives and find more cases. After a while, I found that the cases started to repeat themselves. The questions had become similar, and I started to find common patterns. This is what we historians often refer to as the law of diminishing returns. And it usually means that the time of archival research is over and the time for serious analysis has come.

I also understood some practices, for example, that murder cases were investigated in a certain way. I started to understand the relationship between the first-instance council and the appeals council.

Then something caught my attention: While an investigation in one of these cases was underway, the same case also came before the shari’a court. So I started to wonder about the relationship to the shari’a courts. This is a complex system, so why hasn’t it been written about before? The questions I started with were about people’s relationship to modern medicine. Then the subject brought me to questions about the relationship this legal system had with shari’a, the relationship between law and medicine, people’s — meaning ordinary Egyptians’ — engagement with these practices, as well as what all these new practices gave rise to. The result of this whole process, I thought, was this thing we call “the state”. The medical establishment, the process of census taking, the creation of a police administration and the development of the judicial administration — all of this, and much else, is what we refer to when we use the term “the modern state”. I already knew this. I mean, I knew there was no such thing as “Mohammed Ali and his state-building project.” Yes, Mohammed Ali had a project, but it was not a state-building one. The state arose by trial and error — or rather this thing we call the state, which is not really a thing, but a set of practices and relationships — was the result of these practices that I was chasing in the Archives.

Firstly, I could follow these councils and how they evolved. I found the decrees appointing administrators to these councils — and bit by bit the picture started to become clearer. I also have the records of police investigations, which contain references to people’s reactions. And I have many more details about the councils: where they were located, how they were advertised their presence to the public, who was appointed to serve and their salaries, and even how they were furnished. Secondly, I followed the physicians and their duties in public clinics as well as in police stations where they worked as forensic doctors. Thirdly, of course is the voluminous correspondence of Mohammed Ali and that of his descendants. I have so much correspondence that is extremely precise and detailed, tens of thousands of letters and pieces of correspondence. Of course, after working a while, something happens to you. It’s like you’ve lived with these people and so you start to understand the dominant spirit. So I started to form lots of questions and I started to ask myself how it all fit together.

So my new book is about all that. Specifically it is about this dominant spirit, or the common denominator of all these things, which is dissection and forensic medicine. That’s the common thread. Why? Because when you think about it, dissection brings together medicine, law, the body, and the people.

Of course, examining of the dead has been around for a long time in the form of external examinations. Determinations of the cause of death existed from the early 1850s. No one was buried without something called a burial certificate (tadhkarat dafn). These were issued by the forensic doctor, who was referred to as hakim al-siyasa. This hakim would issue a burial certificate at the behest of the neighborhood sheikh. The family of the deceased would go to that sheikh and tell him that so-and-so died. The sheikh informs the health office, which then sends someone, maybe not the doctor himself. It might send his assistant or a nurse. If the nurse suspects something or finds some problem, he sends for a doctor or a hakima, that is female doctor if the deceased is a woman. The doctor comes and writes the report and this is registered in the health office’s monthly logs, which are the basis on which the national census is updated. Every office in every neighborhood has monthly logs in which they state the deceased person’s name, cause of death, any medication they were taking, their age and heirs — here’s where the shari’a comes in. All of that is also recorded on the burial certificate, which is taken to the undertaker who records it in his own registry. And then at the end of every month, the records are cross-checked for inconsistencies. I came across a murder case, which was discovered when they found a discrepancy between the monthly records of the undertaker and the monthly records of the health office. When the health office records were examined, they found a name that had been “squeezed” (mahshur) between two names, a clear indication of tampering with the registers and of adding the name of the deceased after that particular month’s records had been tallied. When the burial certificate was cross-checked, it stated that the man had died of diarrhea when he had actually been murdered.

In cases where the external post-mortem examination were not conclusive, then the body would be sent to Qasr al-Aini for an autopsy. The medical professors would convene something called an “autopsy assembly” and write a detailed report.

Y.C.: So there is a very fine level of detail…

K.F.: Very fine. And there is faith in this thing called medicine, that it can resolve these cases. The question I then had to ask was how these reports were used legally. That meant I had to know about the legal system.

I formed another question: how is the medicine as used in shari’a courts different from that used in the legal councils? In the end, it’s all a matter of what is meant by proof. In Islamic jurisprudence there is something called bayyina (shar’i evidence), and a medical report is not considered evidence in this sense. Bayyina is either an eyewitness account or a confession by the defendant. In other words, it is a verbal act, and a medical report is not a verbal act, but a written one. So the topic started moving in this direction and came to be centered on the idea of autopsy and forensic medicine.

I started thinking about how to formulate this, all the questions related to the history of medicine, social history, and the medical dimension, but also shari’a, statecraft, and the relationship of statecraft and historiography. Why hadn’t this been written about? Why has it been obscured? This isn’t about one or two incidents, a couple of cases or a few documents. I’m talking about millions of cases, documents and records.

Y.C.: These things are all there in the National Archives, right? You didn’t find them in other archives?

K.F.: No, all in Egypt. How come the current Egyptian legal system knows nothing about this, about its own history?

Y.C.: So I guess it is not taught in the history of law in law schools today?

K.F.: No. I once took a senior law professor from Alexandria University, Burham Atallah, to the National Archives, and when he saw these records, he told me, ‘This is astonishing!’ First of all, he said, we are not in command of language the way these people were. Secondly, he said that these records show a complex system in action. He said he needed to study it further. This senior professor recognized that there was something astonishing about this system. In the introduction of my book, I explain why this 19th-century history hasn’t been written about. I tried to identify exactly which books had obscured it, not on purpose, but because there had been a blind spot that made some scholars view law as administration rather than law.

I started to see that I had to tie these different threads together. Okay, how do I do that?

First, I wanted to write the story in a way that would make the body the main unit of analysis, because I’m talking about the human body and conflict over the body. I have an article titled “Who Owns the Body?” That’s the question, the crux of the matter. Does the body belong to God and we’re just trustees over it? Or does it belong to the person who lives inside it? After death, does it belong to the family or society? And how do you care for it and dignify it with a burial? Or does it belong to the state which lays a peculiar claim over it?

And so I decided I’d write five chapters corresponding to the five senses, in the conventional order in which they appear in both the Western and Islamic medical textual traditions: starting with sight, then sound, smell — an ambivalent sense, that one — taste, and finally touch.

Each sense has its own chapter. Each chapter not only tells part of the story, but also narrates or presents a particular argument. The chapter about sight, for example, is about autopsy, which literally means to see for oneself in latin. The Arabic word has other connotations related to speech or explication, but there are also terms in Arabic, such as sharh al-sadr, meaning to rupture, that are also related to sight, if only in an indirect manner. Anyway, the first chapter is about this procedure, how it was done, and the reaction to it.

Sound is interesting. It isn’t completely obvious, but it’s fundamental to the law. The conventional way of narrating the development of law in Egypt is as a process of secularization: we had a religious system and then we came to have a positive law system. This is the common story for both Islamists and non-Islamists, and in my opinion, it’s not accurate. Perhaps it’s better to characterize the development of the legal system as a shift from one that relied on the spoken word in the shari’a courts to one that relied on the written words in the legal councils. This shift reflects a profound epistemological difference in the understanding of the law, the concepts of evidence and proof, and ultimately even more basic things: the concept of personhood and justice. That’s the second chapter.

The third chapter is about smell. This is actually less about medicine than about public health. There are numerous records that talk about noxious odors not simply as something distasteful, but as dangerous. The idea was that disease spread through foul air, which is befouled by miasma that ultimately emanate from decomposing bodies that give off humors. One finds the origins of this idea in both the Galenic and the Avicennian lore, namely, that the human body is composed of four bodily humors: blood, yellow bile, black bile and phlegm.

This idea had a hugely important impact on the reconstruction of Cairo in the 19th century. The story is not, as it is popularly known in Egypt, that Khedive Ismail went to Paris and there fell in love with Eugenie [de Montijo, Empress of France, and wife of Napoleon III] blah, blah, blah, and then came back and decided he wanted to build a Paris along the Nile. No. Rather, he and Ali Mubarak [an important 19th century reformer] went to Paris after it was redesigned by Haussmann and Mubarak describes how he had to see for himself what the enterprising préfet de la Seine had done to Paris. Once in Paris, he actually went down into the sewers. This is a critical visit in Al-Khitat al-Tawfiqiya where Mubarak describes his visit to Paris. He had studied there, then he came back twenty years later and found the city transformed, and the most significant aspect of this transformation was that when he went down to the sewers he didn’t detect any foul smell. They would take princes and kings down to the sewers to show them that they had tamed nature to serve them and it no longer constituted a source of danger. That’s why he launched a campaign against ponds and swamps. As Shehab Ismail [a historian who received his doctorate from Columbia University in New York and worked on the history of sanitation in Cairo] showed, in the end, the Khalig was drained. This was an important artery in the life of Cairenes, which bisected the city from north to south. So the Khalig was filled in because it had become a source of danger. It later became the path of the first tramway in Cairo in the late 19th century.

Let me move to  the fifth chapter next, which is about touch. This chapter is about torture. I was trying to explain, after a discussion of the legal and medical systems, why torture was abolished at a certain point in judicial history, specifically, in 1861. What was the role of torture in the legal system? It wasn’t some secret practice; it was public but suddenly it was abolished. Why? I examined the law, and found a decree explicitly called the “Decree of replacing flogging with incarceration.” I kept noting how Foucauldian this was, with the prisons and autopsy. Prisons supplanted torture as a means of punishment, and autopsy replaced flogging as a means of obtaining confession and establishing proof. There was no longer any need for torture.

The fourth chapter took me two years to write. I thought it would be about taste and forensic chemistry, related to the murder cases I mentioned, or cases of suspicious death by poisoning or drugging. The source of the chapter was a series of police cases that involved the use of datura, a drug that came from a plant of the same name. So there were gangs that ambush people coming to Cairo and they’d give them dates or bread adulterated with datura, which would drug them so they could then rob them. The police would find the victim on the road still drugged three days later, and sometimes they would find the victims already dead. It’s an extremely potent drug and the victims would be incapable of remembering what happened to them or who gave them the adulterated dates or bread. So the police were working to arrest this gang, but a big part of the investigation was the discovery of datura itself.

I found out that there was a whole administration known as the Chemical-Pharmaceutical Lab. This was in Qasr al-Aini and overseen by a French doctor, Gastinel. It’s obvious the Chemical-Pharmaceutical Lab was renowned, as it received a mention in Baedeker’s travel guide.

The most important thing is the reports those doctors write, not only in criminal cases, but also on suspected food samples, particularly coffee and bread, they had collected from the market and then sent to the police. Someone claims that certain bread or coffee is adulterated, so the police go to investigate the coffeehouse or the bakery and they send seized samples to the chemical lab for analysis. The lab writes a report saying they found chickpeas or ground hazelnut shells, or, worse, insects in the examined sample and would add that this is hazardous to the health. I found these reports and I told myself that I can write a chapter on taste using this.

When I was writing the chapter, I wrote a short introduction, just three pages, trying to explain the difference between this system of market regulation using chemistry (examination of milk, water, bread, coffee, etc.) — in addition to the datura issue, the criminal dimension, and the importance of the chemical lab in tracking these things — and the previous regulatory system of hisba. Why? Because I read a book by al-Shayzari, who was well known in the 12th century. He has a very famous book on hisba, Nihayat al Rutba fi Talab al-Hisba, one of the most important books on the topic because it’s less a work of jurisprudence than a guide for the muhtasib, the inspector, on how to discover the various types of deception and fraud used with different foods. Social historians even use the book as a source for food history because it contains recipes. It tells you how they would sell fake figs, for example, or that when they mix goat with beef, they do it in such-and-such way, and watch out when the fish looks this or that. In the introduction, I was trying to say that the hisba system ultimately depended on the constant presence of the muhtasib and that the overriding concern was a moral one about fraud or deception. In contrast, the overriding concern in the 19th century was health: there was some source of danger, and they didn’t talk much about morals.

I started reading about the history of hisba, the history of the market inspector, which led me to Talal Asad [an anthropologist and an important theorist of religion and secularism who had an enormous influence on postcolonial and Middle Eastern studies] and his students. One of those is Hussein Agrama, who has a wonderful book about the Egyptian legal system, with a chapter on hisba, but with the inspector as a moral rather than market inspector. In classical Islamic jurisprudence, the muhtasib did both, that is, he inspected both the market transactions, for example, weights and measures, as well as public behaviors, for example, the mixing of the sexes in the thoroughfare. But in contemporary popular Egyptian imagination, hisba immediately calls to mind the issue of freedom of expression because of the case of scholar Nasr Abu Zeid who was declared an apostate in the early 1990s for his work on Quranic hermeneutics. It’s a sprawling, complex system, and I decided to grapple with it, trying to explain how the chemistry-based market regulatory system — with its different philosophy, epistemological history, and mechanisms — differs from the hisba system as expounded by someone like al-Shayzari, or others before him who looked at it from a more juristic dimension.

But why was I determined to include this? First, the so-called Islamic State (ISIS) had a diwan of hisba, in fact one of the earliest departments they established. Hussein Agrama writes about hisba, so does Talal Asad. Wael Hallaq [professor of law and Islamic intellectual history at Columbia University] writes about the shari’a and hisba specifically. I look at the history of hisba in Egypt in the Mamluk and Ottoman periods, and then under Mohammed Ali, and then comes the moment when the office of the muhtasibis abolished, just like flogging was. Because there was an alternative — there was something new to rely on to achieve the same purpose.

So this is not about secularization. It’s closely tied to the separation of morals from public law, but in my opinion, this chapter offers a more accurate and deeper analysis than a focus on the legal elite or Egyptian politicians’ betrayal of their inherited belief system, which is the conventional view. As Foucault taught us, this separation of morals and law is arbitrary and violent, but how precisely did it happen? And why? This is what we need to know. This chapter was one of the hardest for me, but the most interesting, if I can say that, or at least the most exciting.

I don’t have a clear conclusion for the book. You asked me what the main idea was and I can’t tell you. I can tell you who I was engaging with: I was engaging Talal Asad and his students, Egyptian Islamists and their view of the modernization of the Egyptian state, and traditional historians, particularly historians of medicine and the Egyptian state and their narrative of the emergence of these institutions and how they were created. I was also engaging with people who work on the history of translation and their explanation of how translation arose in Egypt, as well as postcolonial historians who don’t hesitate to describe the medical system as a colonial one. I’m asking what’s colonial about colonial medicine and refute the idea that the medicine of Clot Bey in Egypt — even though he was French — was colonial.

Y.C.: This is an excellent response, because you’ve also begun to answer three other questions I had. I’ll list them so we can also clarify these three points. In this book, in contrast to All the Pasha’s Men, in which you talked more about the statist discourse about the Egyptian state, here you’re also engaging with the Islamist discourse about the law. About how, as you just said, the legal elite ostensibly abandoned its heritage and turned toward European positive law and so on. So you’re grappling with this point and this discourse.

There’s another point of engagement I wanted to ask about as well: the conversation with postcolonial historians. Was there some desire with this book to propose a different way of talking about the legacy of the 19th century? What I mean is that postcolonial studies, which has given so much to the humanities, has maybe also shut down some discussions and oversimplified them, in its way of asking some questions and its dominance at some American universities. Perhaps all this made you want to highlight some new points? Of course, I’m not saying that you’re defending the colonial legacy, but that maybe we should look at this period differently.

When you were talking about the book, you used a certain word several times: astonishing. I’m not sure quite how to describe this, but I feel that there’s a sort of awe at these institutions, the experiments we had in the 19th century, when you talk about forensic medicine or the quality of translation. Many people when they see this might say, yes, this is very modern, this was a golden and lost age, and so I wonder if there is a little bit of nostalgia for the institutions formed at this moment. I think you show that they are not purely colonial or imported institutions, and that it’s more complicated than that.

This astonishment at experiences that took place in a certain moment and did not happen by design. Do you feel you’re a bit impressed by the 19th century or institutions at that time? I imagine you do not have this very statist, modernization outlook, that the modern state is something nice. But at times do you think about this and say: we can look at today and say that yes, there has been some deterioration of a heritage — not necessarily a religious or doctrinal heritage or legacy, but that the state heritage, the heritage of institutions has declined? That’s a bit of a different question.

K.F.: These are important questions. I think the first two are related, and the response is what you said: it’s about empirical data. The third question regarding being impressed is actually related to what you said about our distress at our present circumstances. Let me take each in turn.

First of all, I found myself wondering why postcolonial studies and Islamists in Egypt seem to agree when it comes to dismissing history. They have foregone conclusions without having done the work, but the work has to be done first. Of course, one is a bit embarrassed to say this, or afraid one’ might be called an empiricist. First you must respect the data — that’s the first thing — and then we can disagree about interpretations. But the thing we’re talking about, don’t come at me with theories. Let me explain.

Regarding the Islamists, I’m troubled by their disregard of the history of shari’a. Al-Sayyid Sabiq, Tareq al-Bishri and Abd al-Qader Ouda all wrote extremely important books about many things, partly about the history of the law and shari’a. It’s there that they didn’t do the work, even Tareq al-Bishri, whom I consider an extremely important historian of Egypt.

Even until the 1980s or 1990s, the Islamists said they had it all codified and waiting — famously, that “the shari’a is in the top drawer.” They said they had codified it but that there was no political will to put these codified legislation into action. When it came to presenting a historical argument, they don’t tire of repeating that we had this shari’a and then the West came in with different forms and replaced it with its own laws.. This is just polemic first of all, we don’t know this for a fact. Of course, al-Bishri doesn’t only cite this fact, he talks about Ottoman regulations and about Qadri Pasha, but the basic idea is that the despotic West came and forced us to abandon our heritage, or, as they say, our turath. Al-Sayyid Sabiq in his multi-volume work has only three pages about the history of jurisprudence. Why? Because he wants us to forget about it and he’ll tell us what it is: it’s the jurisprudence of the Sunna. Forget about all those schools of thought, the madhahib, he tells us. The Brotherhood salafi view is that there’s no need to get into such debates, it divides us; instead we should strive to find what unites us. They’ll tell us what we need to know about food, marriage, divorce, and so on. Fine, that’s political, a political intervention for a particular purpose, but the history of jurisprudence is a long one that can’t be abridged like that, as if Islamic law and jurisprudence have no history.

Abd al-Qader Ouda states this more explicitly in his influential book where he compares Islamic criminal law to positive law. He says, don’t tell me that Western criminal law evolved and the shari’a is rigid. What are you talking about? he asks. The shari’a was born complete, sublime, and comprehensive. It wasn’t born lacking anything so that it later evolved. No, it’s this divine thing, so we can’t say that it was born incomplete and later developed. Development suggests it was lacking or somehow flawed and we rectified it. For him, it’s a complete, comprehensive, sublime system.

Y.C.: So it needs no history.

K.F.: It doesn’t need a history and it doesn’t have one. Of course, we historians who work on the history of shari’a in the Ottoman period see different historical practices evolving. So this neglect or disregard of history is also impressive, but in a negative sense. Why is my work important in this area — my work and that of Emad Helal, Ruud Peters, and other researchers? We expose a different narrative, that it’s not about the coming of the West. The question I ask is: this shari’a we had, what was it? It becomes clear that someone like Tareq al-Bishri and others who want to apply the shari’a now, don’t know how it used to be applied.

Y.C.: They haven’t asked themselves the question.

K.F.: They haven’t asked how it was practiced. We had shari’a courts, fine. How did they operate? Yes, there is revealed law (shar’), but there is also man-made law (qanun), which is issued by the sultan. It is supplementary to Islamic jurisprudence and the shari’a courts. It is true that the judge in the shari’a courts does not apply the qanun issued by the sultan, he applies revealed law. But there is a parallel judicial body in Egypt in the 18th century known as al-Diwan al-‘Ali, the office of the governor of Egypt, the Ottoman sultan’s viceroy. According to James Baldwin who teaches Islamic law at Royal Holloway, University of London, this office actually adjudicates cases. The same cases heard by judges in the shari’a courts can be heard by that office. This is before the West, before Napoleon. This isn’t a hybrid or imported system, or a secular system. It’s an Islamic system — not only Islamic, but a shari’a-based system, because the [man-made] law is part of the entirety of revealed law (shar’).

So what’s the problem? The problem is that Islamists and many other people believe that shari’a — is nothing but fiqh, that is jurisprudence. They think that the intellectual product that we refer to as jurisprudence is the shari’a. But the shari’a, in my opinion, includes jurisprudence as well as qada’, that is, judgeship, fatwa, that is, unbinding legal opinion, waqf, that is pious endowments, etc. But in addition, shari’a also includes the laws referred to as statecraft or state administration (siyasa). This is why Ibn Taymiya called it al-siyasa al-shar’iya. This statecraft is part of shari’a, and that was the understanding of shari’a at that time. If you want to tell me how that system disappeared, fine, let’s study that. Let’s see the details of what happened to that system that no longer exists. I absolutely do not deny that there was intervention by the West in the form of colonialism, imperialism, and the inherent racism in them, and that a big part of that was a clear legal system. But let’s talk more granularly, do the work that hasn’t been done, so that we can understand how this shift occurred. I think my book is a contribution here.

As for the second question, about being impressed by state practices. Of course, as I’m sitting in the National Archives, I’m dealing with state employees. I have interacted with them for over twenty years. I have interacted with them at the entrance of the actual building of the Archives, in the Reading Room, in the cafeteria, in the stacks, and of course, I have also interacted with many of directors who found themselves appointed there. It is interesting to note, that with important exceptions, some of these directors had no idea what the National Archives is. So I sit and observe. At the same time, I read in the same building these impressive state records from 150 or 200 years ago, and I cannot help but make comparisons, and notice differences. And the differences are obviously not in our favor. The deterioration that Egypt witnessed is impressive. It’s not that I reach this conclusion after visiting the British Library or the British National Archives at Kew. It is not by comparing our current state to the mighty British Empire that I realize how backward we are. It is by comparing our state now with how we started our nahda 200 hundred years ago that I find the deterioration impressive.

When I told you before that after a while you hit the rule of diminishing returns and start to find things repeating themselves — it is then that you detect a certain spirit, a geist, if you like. The spirit or feeling that I got after reading thousands and thousands of 19th century documents was confidence — self-confidence and confidence in this administration that was being carefully built. Not necessarily because it managed to find solutions to every problem the country faced, but because it had a mechanism of solving things, and a certain pride and self-respect in what they were doing. These administrators may be Europeans. Or Turks. Or Armenians. Or Levantines. But I consider them all Egyptians, meaning they are all working for an administration that is Egyptian. And they have a palpable sense of pride and self-respect. This pride is no more. It doesn’t exist any more. No Egyptian bureaucrat now has the same positive self-image his or her forebears had, and it’s sad. So it’s also this sadness that stems from realizing that we had this state and then it was lost, or we lost it. Am I being uncritically impressed by 19th century state-building processes, by this geist? I don’t think so. Because the whole time, I ask myself what was lacking, or what was wrong about this impressive system. The system is impressive because, if we take law as an example, the Archives allow me to follow a case from the very initial stage to the end because of the notational remarks the scribes back then inserted literally in the margins of the case. I tell my students to go the National Archives and think like a scribe. If you work like a historian, you won’t be able to engage with the material. You should go in and let them — the people you’re reading — take you along with them. And if you let go, if you allow these 19th century scribes to guide you through their work, you will be truly impressed. 

So yes, this is an impressive thing, but what was lacking? I ask that question all the time. There was something missing. I’ve said for a long time that I think this state has a dazzling, though oppressive discourse. At the end of the day, this state was serving itself not the public. So when I read in this state’s own documents about people who figured out the state’s discourse and understood how it functioned, and when I see them succeeding in using state mechanisms to their own benefit — not through petitions and supplications, but through making demands, like asking for autopsies as a way to establish legal proof — it gives me hope that this leviathan has some constraints after all, and that this state can be manipulated to serve us and give us our rights, though ultimately it is designed to serve itself.

Of course, this contrasts with a widespread view about statecraft and justice, a view informed by a certain Islamic discourse of statecraft, of subjects (not citizens) who have to be protected and taken care of. I believe Mohammed Ali often thought of himself in these terms, that he was entrusted with subjects whose wellbeing — their lives, their property, their honour — has to be protected. He thought of himself along these lines, as a Muslim prince, if you may. But how exactly can he protect his subjects and uphold justice? At the core of his concern was how to stop the abuse of power. How to make sure that his own agents do not oppress the subject. This is where petitions come in, because this was a way of exposing abuse of power by the Pasha’s agents. In the end, they replaced this with the councils. The purpose of these legal councils, in my opinion, was not to bring justice, but to control the Pasha’s agents, that is, the ruling class. But that’s another argument. I’m just mentioning this to say that I was not uncritically impressed by this state. I am always thinking of its internal contradictions. 

Y.C.: I think you made this argument about Mohammed Ali’s early tenure. Yes, there were perhaps impressive things accomplished, but was it inevitable that they be done in this way? Was it possible for it to be impressive without thousands of people dying?

K.F.: And these are first and foremost political questions, and these are the questions I’m trying to get people to ask. To ask this political question, even now. Fine, you want stability, and that’s important, but must it come at the expense of killing a thousand people in Rab’a? Is this the only way? If it is, what’s the cost and who pays it? These are all political questions. For that reason they’re difficult and sensitive, and people don’t want to ask them, because you find yourself asking not only political questions, but ethical ones as well.

Y.C.: Thank you for your time and your discussion of the book.