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Islamic Law and Human Rights in the Thought and Practice of the Muslim Brotherhood in Egypt

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Islamic Law and Human Rights in the Thought and Practice of the Muslim Brotherhood in Egypt Elfegiry, Moataz Ahmed Ahmed Mohamed (2016) Islamic law and human rights in the thought and practice of the Muslim Brotherhood In Egypt. PhD Thesis. SOAS, University of London http://eprints.soas.ac.uk/23687 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. ISLAMIC LAW AND HUMAN RIGHTS IN THE THOUGHT AND PRACTICE OF THE MUSLIM BROTHERHOOD IN EGYPT MOATAZ AHMED AHMED MOHAMED ELFEGIRY Thesis submitted for the degree of PhD in Law 2016 Department of Law School of Oriental and African Studies University of London Declaration I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: ____________________________ Date: _________________ 2 Abstract This thesis explores the development of the Muslim Brotherhood’s (MB) thinking on Islamic law and international human rights and argues that the MB has exacerbated, rather than solved, tensions between the two in Egypt. The organisation and its scholars have drawn on hard-line juristic opinions and reinvented certain concepts from Islamic traditions in ways that limit the scope of various human rights and to advocate for Islamic alternatives to international human rights. The MB’s practices in opposition and in power, have been consistent with its literature. As an opposition party, it embraced human rights language in its struggle against an authoritarian regime, but advocated for broad restrictions on certain rights. Yet, its recent and short-lived experience in power provides evidence for its inclination to reinforce restrictions on religious freedom, freedom of expression and association, and the rights of religious minorities, and to reverse previous reforms related to women’s rights. I conclude that the peaceful management of political and religious diversity in society cannot be realised under the MB’s model of a shari‘a state. This thesis advocates for the drastic reformation of traditional Islamic law and state impartiality towards religion, as an alternative to the development of a shari‘a state or exclusionary secularism. This transformation is, however, contingent upon significant long-term political and socio-cultural change, and it is clear that successfully expanding human rights protection in Egypt requires not the exclusion of Islamists, but their transformation. Islamists still have a large constituency and they are not the only actors who are ambivalent about human rights. Meanwhile, Islamic law also appears to continue to influence Egypt’s law. I explore the prospects for certain constitutional and institutional measures to facilitate an evolutionary interpretation of Islamic law, provide a baseline of human rights and gradually integrate international human rights into Egyptian law. 3 Note on the Transliteration I have standardised the International Journal of Middle Eastern Studies (IJME) transliteration system, with few diacritical marks. Words that are anglicised, such as shari‘a, Qur’an, jihad and ijtihad are not italicised. All other Arabic anglicised words are italicised. I have used the English spellings of words that are most commonly used in the English-speaking world for the names of Egyptian and Arab politicians and public figures, as well as the Muslim Brotherhood’s General Guides and leaders. 4 Acknowledgments First and foremost, I would like to express my deepest gratitude to my principal supervisor Professor Lynn Welchman for the continuous guidance in my research over the past four years and her insightful comments on early drafts of this thesis. I am also thankful to the rest of my supervisory committee: Professor Mashood Baderin and Professor Peter Munchlinski. I am so grateful for the scholarship I received from the School of Oriental and African Study (SOAS) to pursue my PhD degree. Finally, I take this opportunity to thank my wife Shaimaa and my son Adam for supporting me emotionally throughout the wiring of this thesis and for being patience in my absence. This thesis is lovingly dedicated to my father Ahmed Elfegiry, my sister Gina Elfegiry and the memory of my mother, Fatma Shalaby Safa. 5 Contents Declaration ................................................................................................................................. 2 Abstract ...................................................................................................................................... 3 Note on the Transliteration ........................................................................................................ 4 Acknowledgments ...................................................................................................................... 5 Contents ..................................................................................................................................... 6 Abbreviations ............................................................................................................................. 9 Tables of Authorities ................................................................................................................ 10 Chapter One: Introduction ....................................................................................................... 17 1. Defining the Research Problem ....................................................................................... 17 2. The Muslim Brotherhood: A Historical Background ...................................................... 23 3. Methods and Sources ....................................................................................................... 28 4. Structure of Thesis ........................................................................................................... 30 Chapter Two: Islamic Law and Human Rights: Conceptual and Theoretical Issues .............. 33 1. The Nature and Evolution of Islamic Law ....................................................................... 33 1.1 The Divine and Human Aspects of Islamic Law ........................................................ 33 1.2 Islam and Egypt’s Law ............................................................................................. 37 1.3 Shari‘a and the Constitution ....................................................................................... 39 2. Human Rights and Religion ............................................................................................. 45 2.1 The Evolution of Human Rights ................................................................................. 45 2.2 Interpretation of International Treaties ....................................................................... 49 2.3 Universality and Cultural Relativism ......................................................................... 52 3. Islam and Human Rights: Theoretical Perspectives ........................................................ 61 4. Conclusions ...................................................................................................................... 67 Chapter Three: Human Rights under the Rule of Shari‘a ........................................................ 69 1. The State-Religion Relationship ...................................................................................... 69 1.1 The Supremacy of Shari‘a .......................................................................................... 69 1.2 Civil State with Islamic Background .......................................................................... 73 2. Reactions to International Human Rights ........................................................................ 82 2.1 The Historical Roots of Human Rights in Islam ........................................................ 82 2.2 Human Rights: Its Sources and Limitations ............................................................... 85 3. Shari‘a and Human Rights in the 2012 Constitution ....................................................... 89 4. Conclusions ................................................................................................................... 102 6 Chapter Four: Political Pluralism and Dissent ....................................................................... 105 1. The Establishment of Religious Political Parties ........................................................... 105 2. Political Pluralism and the Rule of Shari‘a ................................................................... 110 3. Sowing the Seeds of Hate and Violence .......................................................................
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