Apostasy as Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments

THE court judgments in the recent apostasy trials in the Arab world have brought about fundamental changes in the control of belief and religious affiliation that are directly related to the transformation Islamic law underwent when it became integrated into the legislative codes of the new nation-states. From the eighth to the nineteenth century, the norms of Islamic law were the result of learned debates among independent jurists and their schools of law. Islamic law was a jurist’s law. In the nineteenth and twentieth centuries, it was integrated into the codes enacted by the competent institutions of the nationstates and lost its normative authority in most spheres of modern state law. It remained dominant only in personal statute law (that is, the rules concerning marriage and divorce, family and succession ). The Muslim jurists of the premodern period had assigned ethical norms an important place and had clearly distinguished purely ethical from enforceable legal norms. The notion of the individual believer as someone who takes ethical responsibility for his acts independently from the decisions of the judiciary and the political institutions found its expression in the concept of the individual’s own interior forum (batin). This holds especially true for questions of belief and unbelief. In the last instance, these questions were considered a matter of religious conscience, even SOCIAL RESEARCH, Vol. 70, No. 3 (Fall 2003) Apostasy as Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments BABER JOHANSEN if judicial decisions against apostates were legitimized for political reasons. When the modern nation-states’ codification of the law reduced Islamic law to personal statute law, the state’s written law abandoned the purely ethical norms of that tradition and with them the concept of the individual’s own forum (batin). The opposition against the neglect of religious norms in modern state law grew from the early 1970s of the twentieth century. But it was centered on the demand for the “codification of Islamic law” (taqnin al-shari’a). In other words, it did not mobilize religious opposition for a return to a jurists’ law. The reason is that its leaders were jurists trained in modern law faculties to interpret and apply codified state law. These jurists wanted to insert the norms of classical Islamic law into the codes of the nation-state with which they were familiar. The ethical debates of classical Islamic law obviously did not lend themselves easily to this approach. The jurists’ movement for the “codification of Islamic law” gained in momentum during the 1980s when, in a number of states, it succeeded in assuring a place in the modern criminal codes for classical apostasy rules. In other states, such as Egypt, the highest courts opened the way for apostasy trials. The analysis of one apostasy judgment of the highest Egyptian court shows that the court understands belief and apostasy as objective facts that can be separated from the person who professes or denies them. The court effectively claims the role of the highest instance in questions of belief and unbelief. Apostasy thus becomes a depersonalized objective fact without any relation to the intentions of the individuals concerned. The court’s sentence presents a radicalized version of the opposition between the individual’s interior forum and the courts’ exterior forum: the first loses its connection with the second. The court’s definition of apostasy serves to control the ideas that can legitimately be discussed in the public sphere. It denies bold reinterpretations of Islam, but implicitly also a number of political persuasions and theories, the right of access to the public space and assigns them the private sphere as their legitimate abode. The concept of private and pub688 SOCIAL RESEARCH lic that results from this approach is developed in the detailed reasoning by which the court justifies its judgment. I The Cairo appeals court in 1995 and then, in 1996, Egypt’s highest judicial authority, the Court of Cassation, found Nasr Hamid Abu Zayd, an Egyptian professor of Islamic studies and Arabic rhetoric at the University of Cairo, guilty of apostasy—that is, of forsaking the Islamic religion and community. Apostasy trials against professors, intellectuals, artists, and writers were by no means rare in the...