Commentary: Religious Opinions within Civil Discourse

By Professor Mohammad Fadel (University of Toronto, Faculty of Law)

In a recent attempt to control religious discourse in Egypt, the chairperson of Egypt’s Supreme Media Regulatory Council (al-majlis al-aʿlā li-tanẓīm al-iʿlām), Makram Muhammad Ahmad, announced that only 50 people would be permitted to give an opinion (fatwā) pertaining to Islamic law. According to various Egyptian media reports, this is just one of a continuing series of steps that the government is taking to combat the problem of “chaos” in the domain of giving religious opinions, which has resulted in the dissemination of irregular (shādhdh) opinions that have caused confusion in the public regarding the teachings of Islam.

Indeed, during the tumultuous two transitional years after Hosni Mubarak’s resignation and the July 3, 2013 military coup, the Egyptian religious establishment complained regularly about what they viewed as a dangerous level of disorder that had come to characterize public religious discourse about Islam in the wake of the January 25th Revolution. They repeatedly asked the government during the transition period to intervene to ensure that only qualified persons were authorized to give religious opinions. One of the important concessions given to Egypt’s Muslim religious establishment in exchange for its support of the July 2013 coup was to enshrine in Article 7 of Egypt’s Constitution the Azhar Mosque College’s exclusive authority over the public teaching of Islam, and to grant it institutional independence from other organs of the state.

Mr. Ahmad himself, in announcing this new rule, claimed that this rule was the result of an initiative undertaken by Egyptian religious scholars themselves after reports circulated of a legal opinion (and even proposed legislation) that would have permitted a man to have sex with his deceased wife for a limited period of time after her death. (Despite the notoriety of that report, it turned out, unsurprisingly, to have lacked any basis in fact.) It is not surprising, then, that Mr. Ahmad explained that the identity of the individuals who will be permitted to appear on Egyptian television stations to provide the public with religious opinions was determined with the supervision of the Azhar and the Department of Legal Opinions (Dār al-Iftāʾ) which were the principal proponents of the regulation. Mr. Ahmad also said only scholarly considerations, not politics, were used in determining the list’s membership. Nor should it be a surprise that nearly half of the 50 personalities with permission to give fatwās on television are career bureaucrats, either of the Azhar itself, or of another organ of Egypt’s official religious establishment. Only one of the 50 is a woman, Ghāda ʿAlī ʿAbd al-Shahīd, and she is described as an “Islamic law researcher” (bāḥitha sharʿiyya).

Mr. Ahmad was careful to say, however, that this regulation did not mean that no Egyptian other than those designated on this list of 50 would be permitted to speak about Islam on television; rather, others could speak about Islam as long as they did not claim authority to give a normative opinion about the content of Islamic teachings. Presumably, that would mean that non-religious intellectuals could continue to discuss and debate the content of Islamic law and theology, but only so long as they did not attempt to interfere with the religious establishment’s authority to define the content of religious orthodoxy. Insofar as Egypt’s Supreme Media Regulatory Council seeks to enforce this rule against Egyptian television stations, it might produce some interesting opinions regarding what constitutes an unauthorized opinion on Islamic law, and what is simply a permitted exercise of freedom of expression.

One might legitimately ask whether the Egyptian government’s attempt to regulate Islamic religious opinions is a legitimate exercise of its powers from the perspective of Islamic law. The brief answer is that classical Islamic law gave the ruler a substantial role to play in the public regulation of Islam. The ruler, for example, played an important role in organizing the Friday noon congregational prayer, according to most Sunni jurists, including by designating its place of performance and appointing a prayer leader (if the ruler did not lead the prayers himself). Works of public law make clear that it is the caliph’s responsibility—indeed, his primary responsibility—to maintain the integrity of the religious community. The caliph does this in the first instance by establishing centers of religious learning and practice that can instruct the public in true Islamic doctrine, and in the second instance by confronting heretical opinions and heretics using reasoned argument, but with coercion if necessary. Classical texts assumed that the caliph had the personal capacity to understand theological arguments and explain it to others, and that he possessed independent knowledge of the law. The later Sunni tradition, however, embraced the idea of a division of labor in this regard, with the caliph fulfilling his duties if he delegated supervisory powers over religious affairs to responsible members of the learned class who could exercise that power in his name. As a result, the state discharged its duty to maintain “true” religion through its association with the Muslim learned class, to whom it would appoint various religious positions, such as Friday preachers and teachers in various institutions created for the public instruction of Islam.

The Egyptian government, against its detractors, would simply claim that it is exercising its Islamic duty to safeguard the public space from erroneous interpretations of Islam, and indeed, that is precisely what they claim they are doing. On the other hand, the current approach of the Egyptian government, as well as that of some other Arab governments, goes beyond regulating the public religious sphere through the promotion of “good doctrine”; rather, they are seeking to establish a state monopoly over the public teaching of Islam by threatening to punish those who would teach Islam without the state’s prior permission, without regard to the content of their teaching.

It is important to note that the Islamic Middle Ages and early modernity were characterized not only by a normative pluralism in law—as reflected by the recognition of the equal validity of the four Sunni schools of law—but effective toleration of religious dissenters, not only non-Muslims but also Muslims who dissented from theological orthodoxy. As a general rule, there was broad space for interpretive freedom on both legal and theological questions. Accordingly, Islamic theological and legal doctrines were in a constant state of deliberative flux and dialectical development by virtue of a vibrant religious/scholarly culture of debate and dissent. And while the caliph was entitled to participate in that debate, when he did so, he did so as an ordinary scholar, meaning that the caliph’s interpretation of the law was subject to the same standards of validity as that of an ordinary scholar.

The government’s criminalization of unauthorized public religious teaching, while intended to prevent the spread of dangerous doctrines, is overbroad insofar as it also criminalizes legitimate religious critique of the state as well as religious discourse advocating political violence. It is also potentially self-defeating, insofar as criminalization drives extremist discourses underground, where they may remain undetected, and perhaps circulate without generating the kind of opposition that would normally result from their public dissemination. By limiting public teaching of Islam to establishmentarian scholars, the state risks undermining the credibility of the very voices it seeks to use to establish a politically moderate religious position. Ironically, rules intended to prevent religious extremism may end up inadvertently strengthening the very forces of religious extremism the rules are intended to defeat.