Last week, I wrote that the constitutional struggle between Egyptian President Mohammed Morsi and the countrys Supreme Constitutional Court a struggle that continued this week, when pro-Morsi picketers shut the court down might represent an attempt to impose a conservative version of Islamic law in Egypt. Now that more of the draft constitution is available in English , the strategy seems even more apparent.
The draft constitution, like the Mubarak-era document it would replace, makes Sharia the primary source of legislation in Egypt. Traditionally, the SCC has had authority to determine whether laws comply with Sharia principles, and the court typically has taken a moderate, flexible approach. The draft constitution contains new provisions that could change things.
For example, one article declares, The principles of Sharia include general evidence and foundations, rules and jurisprudence as well as sources accepted by doctrines of Sunni Islam and the majority of Muslim scholars. Its not entirely clear from the wording, but the reference to the majority of scholars may suggest a return to the idea of scholarly consensus that informed classical Islamic law, or fiqh . The idea is that once Islamic scholars reach consensus, or ijma , on a point of fiqh , further interpretation is unnecessary. In fact, further interpretation might not be allowed. One important stream of Islamic thought holds that scholars reached consensus on the essential doctrines of fiqh centuries ago and that the gate of interpretation is now closed. Not all contemporary Muslims accept this notion some Islamists have been skeptical, for example but it remains influential. If that is the idea to which the draft constitution refers, it would represent a major victory for traditionalists.
Another article deals with the status of Cairos Al-Azhar University, founded in the 10 th Century and the most respected institution of fiqh studies in the Sunni world. The draft constitution provides that the scholars of al-Azhar should be consulted in all matters related to Sharia. This provision, too, suggests a return to classical fiqh . In the classical model, the judges of the Sharia courts, or qadis , would routinely consult scholars for advisory legal opinions. Although the opinions fatwas did not bind qadis , in practice qadis almost always complied. One implication of the draft constitution is that the SCC should now consult Al-Azhar on Sharia questions and comply with Al-Azhars judgments.
One might wonder why the Islamists who make up Morsis coalition would endorse Al-Azhar. Islamists do not defer quite so much to scholarly consensus or the closure of the gate concept. They typically wish to return to the practices of very early Islam, before scholarly consensus solidified. Until recently, moreover, Al-Azhar has taken a moderate approach to fiqh that Islamists reject. But that may be changing. Since the fall of Mubarak, Islamists have seemed increasingly welcome at Al-Azhar. Put it all together: Islamists may expect that, in future, a more conservative Al-Azhar will monitor the SCC and ensure that conservative interpretations of Sharia prevail.
To be sure, much of this is conjecture. It would be nice to have better English translations of the draft constitution to understand more clearly what it says. And we will have to see how events in Egypt unfold. The draft constitution is scheduled to go before the voters in a referendum on December 15. With tanks protecting Morsi from angry protesters, however, who knows what will happen next?
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.