Juridical Humanity: A Colonial History 9780804783149

Citation preview

J u r i dic a l

H u m a n i t y

J u r i dic a l H u m a n i t y A

C ol on i a l

H i s tory

Samera Esmeir

Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2012 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Esmeir, Samera, author. Juridical humanity : a colonial history / Samera Esmeir. pages cm Includes bibliographical references and index. isbn 978-0-8047-8125-1 (cloth : alk. paper) isbn 978-0-8047-8304-0 (pbk. : alk. paper) 1. Persons (Law)--Egypt--History. 2. Law--Egypt--History. 3. Egypt--History-British occupation, 1882–1936. 4. Egypt--Colonial influence. I. Title. krm511.e86 2012 349.6209'041--dc23 2012005529 Typeset by Bruce Lundquist in 10 /15 Sabon

To my parents, Mona and Nimer Esmeir And in memory of my grandmother, Maryam Farhat

Contents

Note on Translation and Transliteration  ix Acknowledgments xi Introduction  1 p a r t i   h i s t o ry 1 Conquest 21 2 Conscripts 67 pa rt i i   n at u r e 3 Wounds 109 4 Battles 149 p a r t i i i   p ow e r s 5 Red Zones  199 6 Crisis 241 Epilogue  285 Notes  295 Bibliography  331 Index  347

Note on Translation and Transliteration

i h av e t r i e d to make the book accessible to readers unfamiliar with

the modern history of Egypt and with the Arabic language. All translations from Arabic, unless otherwise noted, are mine. In translating titles, key terms, and concepts, I have tried to keep the original Arabic words next to their English translation. The term “national courts,” rather than “native courts,” has been used to translate “Mahakim Ahliyya,” unless the cited text uses the term “native courts.” In transliterating Arabic words into the Latin alphabet, I have used common English forms where they are available and otherwise followed a simplified version of the standard system of transliteration based on the International Journal of Middle East Studies. Diacritical marks are given only to indicate the Arabic letters ‘ayn (‘) and hamza (’). A hamza appearing at the beginning of a word is normally dropped, as is the ta marbouta at the end of the word. For authors who published in English or French, alternate spellings of their names may occur, but the standard Arabic transliteration has been retained in the notes and bibliography for their Arabic works.

ix

Acknowledgments

t h i s b o o k has been in the making for about a decade. Many people

contributed to its various drafts, and a few in particular left considerable marks on it. I would like to thank Christine Harrington, who has been the exemplary mentor I would like to one day become. From the very beginning she invited me to move beyond the obvious critique of modern law’s violence, in directions I could not always perceive. Only after completion of the book have I begun to recognize the challenge of her invitation, all the while acknowledging that I am still far from meeting it. I know that my future work will engage this challenge. Timothy Mitchell directed me toward the nonhuman, while presenting me with new possibilities for “doing” theory and history as well as making area studies central to debates in the humanities and social sciences. I owe him a great intellectual debt. My archival research in Cairo would not have been feasible without the encouragement and assistance of Khaled Fahmy. He helped me discover the historian in me, and he taught me all I know about Egyptian legal history. Peter Fitzpatrick was also a crucial figure in my journey. His writings on modernity and the law provide the inspiration for this project. This work would not have been conceivable had I not read Talal Asad’s work on the powers of the modern and attempted to think through its challenges. The main research for this book was conducted in archives in London and Cairo—in the National Archives in Kew Gardens in London and in Dar al-Kutub and Dar al-Wathi’q al-Qawmiyya in Cairo. The library of the Centre d’Études et de Documentation Économique, Juridique et Sociale (CEDEJ) was also a wonderful research site where I located many law textbooks and journals from the colonial era, as well as the private papers of ‘Aziz Khanki. I must thank Mustafa al-Khayyat, the director of the library, for assisting me in my research there. Also important was the documentary collection on murder cases from the nineteenth and twentieth centuries of xi

ack nowledgmen ts

Majlis al-Dirasat al-Qada’iyya (Council for Judicial Studies) in the Egyptian Ministry of Justice. Chapter 5 is based on this orderly microfilmed collection. I owe a debt of personal gratitude to Ms. ‘Adila Khalil of the council. Her energy and devotion to maintaining and developing the microfilm division is admirable. And I must mention the used books market in Cairo, where I located many of the primary printed texts examined in this book. I thank Nady ‘Abdul-Ghaffar for navigating the different stores with me and for generously sharing his knowledge of Egyptian history and archives. My colleagues at the University of California at Berkeley sustained me during the writing of various drafts of this book. In the Department of Rhetoric, this book was informed by the many conversations I had about questions related to legal and political theory, postcolonial studies, critique, and history with David Bates, Judith Butler, Pheng Cheah, David Cohen, Marianne Constable, Felipe Gutterriez, Ramona Naddaf, Kaja S­ ilverman, and Michael Wintroub. Marianne has been a supportive mentor, and ­Ramona has made my journey in academia much more fulfilling. The graduate seminars and the wonderful students I was fortunate to teach have also helped me to clarify my thinking about many of the questions raised in this book. I feel privileged to be in the company of some of the best scholars of the Middle East, who kept my interests focused on the region and pushed the boundaries of my thinking. The many discussions I had with Beshara Doumani about the history of the Middle East, as well as that of Palestine, enriched my approach to the history of Egypt. Charles Hirschkind read and commented on chapters of this book. Stefania Pandolfo pushed me in thinking about violence. Her friendship and intellectual curiosity have informed this work, even though I am still uncertain how to pursue some of her intellectual invitations. And Saba Mahmood read and commented on parts of this book, encouraged me to finish, and generally helped me to see through the many challenges inherent in my work. But above all, her friendship and commitment made my life in Berkeley pleasurable. And then there are my colleagues at the Institute of Women’s Studies at Birzeit University, where I was a visiting professor and where some parts of this book were completed. I want to thank Rola Abu Duhou, Rima Hamami, Islah Jad, Eileen Kuttab, Lena Meari, and Nadia Najjab for welcoming me into the Institute, making me feel as if I had always been with them, and xii

ack nowledgmen ts

teaching me about other ways of being an academic. I also want to thank the Institute’s staff, and the wonderful graduate students there, in particular those who were enrolled in my seminar on violence and subjectivity. Many friends and colleagues dispersed across academia, whose engagement with the arguments made in various versions of this book, have pushed me, sometimes unknowingly, to attend to a number of otherwise neglected issues: Tony Alessandrini, Brenna Bendar, Laura Bier, Elliott Colla, Munir Fakhreddin, Michael Gasper, Lisa Hajjar, Will Hanley, ‘Imad Hilal, Wilson Jacob, Lena Meari, Stewart Motha, Sherene Seikaly, ‘Amr Shalakany, Amira Silmi, Umut Turem, Lisa Wedeen, and Diana Yoon. In addition, a few people read this manuscript in its entirety and offered me detailed commentary about it. In her comments, Judith Butler mirrored, for me, my own arguments. This book would not have been the same without her careful reading, which helped me see through what I had written. From her I learned about the art of generously reading a text while helping to move it forward. Jon Goldberg Hiller’s support of the work was reassuring. His suggestion that I include a more sustained discussion of Weber will surely constitute a future inquiry. Omnia El Shakry offered detailed commentary and several suggestions to expand on the arguments of this book, and though I did not pursue them all, I recognize that they would have made the work much stronger. Hussein Agrama’s reading of the different drafts of this work revealed that his understanding of my work exceeds my own. His careful readings identified numerous gaps in my arguments, and his reflective intellect challenged me in unique and exceptional ways. I am privileged that he has been my interlocutor; this book would not have been the same without his comments. And as a number of his comments remain unaddressed, I hope to work through some of the questions he raised in the future. This book rests on research conducted with the generous support of the National Science Foundation, the Sultan Program Award from the Center for Middle East Studies at UC Berkeley, and grants from the Committee on Research at UC Berkeley. The writing of this book was made possible by funding from a Humanities Research Fellowship at UC Berkeley, a UC Regents’ Junior Faculty Fellowship, and a Townsend Center Fellowship. A Wenner Gren Hunt Postdoctoral Fellowship enabled me to finish the manuscript while on leave from UC Berkeley. With a grant from xiii

ack nowledgmen ts

the Institute of International Studies at UC Berkeley, I was able to hold a miniconference to workshop the manuscript, benefiting greatly from the discussion of my work. I also benefited from presenting chapters of this book to audiences at Brown University, Concordia University, Columbia University, Florida State University, Stanford University, UC Irvine, UCLA, UC Santa Cruz, and the University of Chicago. I would not have been able to finish this book without the research assistance of K-Sue Park. K-Sue read the entire manuscript and worked with me closely on producing its final version. Mike Allen helped me with the research on French jurisprudence, Egyptian writings on the human, and the persistence of cotton worms. Waseem Salahi proofread one of the drafts and edited the notes and bibliography. Luara Schoorl organized the research material, primary and secondary, for this book, allowing me to navigate the research with great ease. And the many Undergraduate Research Apprentice Program students I worked with over the years have greatly contributed to the research. I must especially thank Lara Kiswani, who prepared the last version of this book for production with great commitment, and Amy Jamgochian, who carefully read the final version of manuscript. I am also indebted to Kate Wahl at Stanford University Press for her dedication and professional assistance with the completion of this book, as well as to the other staff at SUP. And I am grateful for the comments and suggestions made by the anonymous reviewers of SUP. Many friends, colleagues, activists, and fellow graduate students helped me conceive this project, carry it out, think through the concerns it raised, and finally bring it to a conclusion. Some of them may not be aware of how crucial our conversations were, and I cannot name all of them here. I developed many ideas, and occasionally borrowed some, in the process of encountering others. I owe a notable debt to the following individuals, who enriched my life with their insights, assistance, and love: Bashir Abu Manneh, Degaulle Adili, Nawwaf ‘Athamneh, Shiva Balalghi, Jumana Bishara, Jamil Dakwar, Ayman el-Desouky, Keyumars Hakim, May Jayyusi, Rachel Jones, Patricia Karam, Rim Khamis, Gina Kirkeby, Gyorgy Lissauer, Stewart Motha, Rim Natour, Yigal Nizri, Deirdre O’Sullivan, ‘Ali Sa‘th, Sharif Waked, and Ranwa Yehia. And I must thank Laura Bier, Michael Gasper, and Wilson Jacob. I long for their friendship, xiv

ack nowledgmen ts

stimulating company, and excellent meals. Life would not have been the same without their company, nor without the support and love that Sinan Antoon has offered me during the past ten years, from Cairo to New York as well as from a distance. I thank him for his wonderful soul. And then there are my friends in Palestine, with whom I was able to spend some time while finishing this book; their company is greatly missed, though their friendship persists across the distance: Rula Abbu Dohho, ‘AbdulRahim al-Shaikh, Rim Butmeh, Samia Butmeh, Marwan Dalal, Khaled Farraj, ‘Areen Hawari, Hassan Jabareen, Lena Meari, Anan Odeh, Rina Rosenberg, Hoda Rouhana, Nay Shomar, and Salim Tamari. Each one of them has left a mark on my life, and I can only hope they will continue to do so. My life in the Bay Area would have been much less livable without the friendship and the support of my wonderful friends here: Shahram Aghamir, Wael Al-Buhaissy (who also assisted me with some translations with much patience and generosity), Lara Kiswani, Lena Meari, Hussein Mohsen, Malihe Razazan (the older sister I’ve come to have), and Zeina Zaatari. Their friendship sustains me in ways I have yet to fully comprehend. This work owes so much to the years I lived with my wonderful brothers, Esmeir, Samer, and Saher, and to the sisters I came to live with from a distance, Nawal and Lina. As for my parents, Mona and Nimer, every year they realized anew that my being away from home would last a little longer than they had previously imagined. For letting me be, for accepting my choices with a tear and a smile, and for their unlimited energy and passion for action, I owe them the greatest debt of all. This work is dedicated to them as well as to the memory of my grandmother, Maryam Farhat. Teta Maryam, who raised me as a child with great love, passed away the day I was interviewing for my job at UC Berkeley. Teta Maryam was a Palestinian peasant who saw her house, together with her entire village, being bombed after its occupation in 1948. Teta’s land was confiscated and her community shattered by the new state and its laws. Yet Teta Maryam, unlike the human rights lawyer I was, never thought the oppressive law could target her humanity, either by taking it away (dehumanizing her) or by giving it back (humanizing her). She never thought it possible to question her human status, for better or for worse.

xv

J u r i dic a l

H u m a n i t y

Introduction

w h a t i s t h e r e l a t i o n s h i p between modern law and the human,

and what was the colonial career of this relationship? How was the concept of the human cemented in the legal processes of colonizing projects? Did this concept signify a person bound by the chains of colonial law, or a subject who lived in the space of modern juridical power assumed to be able to abide by it or rebel against it? These questions guide the inquiry of this book, situated in Egypt under British occupation (1882–1936), when Egyptians were recruited to the production of cotton for British and other world markets, and when the technologies of colonial rule came to rely heavily on the new positive law and the new figure of the human. The “human” here is a concept/figure that stands for a specific species, a certain status, a particular form of life.1 The significance of these questions stems from the fact that the concept of the human was at the center of a range of knowledge and modes of rule that are becoming all the more evident today.2 During the era of colonial rule, Ottoman Egypt suffered a rupture in its legal history. This rupture consisted in the introduction of a new legal system of positive law that replaced the Ottoman-khedival legal order grounded in the tradition of Islamic law—the shari‘a. This book investigates the thought, institutions, practice, and sensibilities of the modern colonial rule of law. It traces the novel relationship they cemented between the prevailing rule of law and the human, a relationship that engendered its own colonizing operations. This new relationship was part of what Talal Asad describes as colonialism’s “irreversible process of transmutation, in which old desires and ways of life were destroyed and new ones took their place—a story of change without historical precedent in its speed, global scope, and pervasiveness.”3 A central tenet of the anticolonial tradition locates the power of colonialism in the exclusion of the colonized from the realm of “universal humanity,” in their “thingification.” Aimé Césaire is one important figure 1

in t roduc t ion

in this tradition.4 According to this position, the forces of colonialism unleash themselves against the colonized by dehumanizing them—equating them with, or reducing them to, animality or the nonhuman. The end of colonialism and the termination of its constellation of forces signal, in these accounts, the reentry of the colonized into “universal humanity.” Deploying a parallel argument, liberal accounts of the modern rule of law equate its ideals with protection of the human. These accounts maintain that exclusion from the law, or assignment to an extralegal status, results in dehumanization. When the rule of the law prevails upon the lives of the dehumanized, their entry into its domain occasions their rehumanization. By these accounts, modern law and colonialism occupy the same space of humanity/nonhumanity, humanization/dehumanization: colonialism negates humanity and the modern rule of law, both of which stand united in their idealized form against colonial forces: colonialism dehumanizes; modern law recovers the human. The result of these accounts is to re­inforce both the necessity and the superiority of the modern rule of law. It now appears as a place of refuge for the human, or more modestly, a place in which some forms of resistance against colonialism could unfold. But are such accounts the only story of modern law? To what extent do they reproduce its metanarrative? Does the colonial career of modern law complicate its presumptive protectiveness, and if so, how? Might a historical account of modern law’s operations reveal a system of juridical bondage that the law fashioned as it assumed for itself the identity of a site of refuge? These accounts of the law and the human grant law the power of decision over the human without interrogating that power. When modern law endows itself with the power of humanization, and declares that its absence signals dehumanization, modern law effectively binds the living to the powers of the state. The human is chained to the power of modern state law, not simply because the state’s laws are imposed on the human, but because they decide its status as human. What assumptions about the human enable this magical effect, effectively binding it in a compulsory fashion to the power of the law? How does modern law make possible and activate the moment of decision over the human? Might this decision be precisely what is at stake in the coloniality of modern law? Could this decision, in attempting to mold a human that is always chained to the law, 2

in t roduc t ion

be part of a legal technology that functions to prevent revolution against the law and to assert state power? This study is a historical and theoretical account of how the human, in colonial Egypt, arose as it was simultaneously inscribed into the body of modern positive law. In the juridical field of colonial Egypt, the human came into being as the teleology of modern positive law: its absence, law asserted, indicated a state of dehumanization or indeed inhumanity, that is, a state of cruelty, instrumentalization, and depravity.5 No longer a condition of birth, humanity began to emerge as a juridical category; the human became the effect of the work of the law, that which was to be animated by this work. This animation took place in the life of the individual. Modern law, which took on the government of the living, thus took upon itself the task of this animation. The new, modern legal system instituted in Egypt in 1883 began to interpellate Egyptians and to attempt to recruit them into the position of the human. In this interpellation, the law allocated to itself the power to make decisions as to the presence or absence of the human. The law also decided on the empirical meanings of the human and all that seemed to threaten it. This book theorizes this particular emergence of the human as part of the rise of “juridical humanity.” Juridical Humanity is an examination of this emergence of the human that challenges the protective, determinative role of modern law, along with the assumed relationships among law, colonialism, and humanity. Partially a work on Egyptian legal history but mainly a study of the p ­ owers of modern law in colonial Egypt, this book situates modern law, historically and theoretically, at the heart of the colonial enterprise and as one of its constitutive powers. Colonialism emerges as a constellation of forces, and modern law as one of its strategies of conquest and rule for binding the living to the state. Unlike what some studies of colonialism suggest, colonial Egypt was not a zone of lawlessness, of the suspension of juridicality and of exclusionary measures.6 Further, this book unpacks the meanings of the human as modern law interpellated it, the colonial efficacy of this concept of the human, and the sensibilities of humanness the law attempted to fashion. The book also considers the ethical meanings and political operations of the newly awakened human in relation to history, violence, and nature. At issue is not only the rise of juridical humanity but also the accompanying rise of the new 3

in t roduc t ion

operations of power—ethical and political—that were central to the colonization of Egypt and to the reproduction of the power of the colonial state. This, then, is a study of how modern colonial law came to engender a juridical concept of humanity, practice its production, and include Egyptians in its realm. The colonial legal reforms of the late nineteenth and early twentieth centuries claimed to elevate Egyptians to the status of humans and to liberate them from the inhuman conditions prescribed by their “native” rulers. By so doing, legal reform constituted a colonial governmental force that inscribed the human as the teleology of modern law. This inscription, in turn, was directed at prescribing new, modern sensibilities toward pain and at delineating the sphere of useful, legal, and acceptable violence. Prescriptions also included a historical distancing from the past of the khedival state and a renewed relationship with nature, either as a hostile force to be fought or, alternatively, as a site for humanization. The figure of the human and its concomitant sensibilities with respect to violence, history, and nature became a creation of the modern colonial rule of law. Unlike other studies of colonialism, Juridical Humanity does not locate the power and force of colonialism in the dehumanization of Egyptians and the transformation of Egypt into a colony of lawlessness. Nor does the book investigate the dynamics of racialization in Egypt, which was also significant to the colonial encounter.7 Rather, it investigates colonialism as a constellation of secular modern powers aiming precisely to humanize Egyptians by declaring them subjects of the rule of law. In Egypt, this association between the human and the law would ultimately prove to be the cornerstone of Egypt’s colonization.8 The association between the human and the law was not unique to Egypt. It belonged to a broader modern historical dynamic that positivized and secularized the law. Whereas the French Declaration of the Rights of Man and of the Citizen of 1789 clearly linked the human (“man”) to the law, the rise of secular positive law introduced the terms of this bond. With positive law, the human became the “author” of the law and one of its distinctly recognized “persons.” However, this association also brought with it the threat of loss. Once the human became the subject/end of modern secular law, the absence, withdrawal, or suspension of the law gave rise to arguments about dehumanization. Modern law’s authorizing assumption 4

in t roduc t ion

was indeed that those who have been abandoned to the “state of nature” must be rescued through inclusion in the empire protected by modern liberal law. But is it not possible to conceive of a human who lives outside the protection of the law and in the midst of violence? What way is left to conceptualize those who live outside the law or under threats of violence? How does the liberal equation between modern law and the protection of the human block the possibility of other conceptions of the human? What are the political operations and ethical sensibilities that this equation produces? Finally, what are the characteristics of the modern regime of liberal law that assigned itself this power of earthly humanization? Juridical Humanity sets out to address these questions and to provide a more critical analysis of the presuppositions underlying the liberal entanglement of law and humanity. This study draws from archival research in Cairo and London. The archival material includes jurisprudence textbooks; writings of Egyptian intellectuals and of British diplomats, travelers, and officials; memoirs; court rulings and court records; legislation and policies; correspondence, colonial reports, and the proceedings of commissions; and journal and newspaper articles. In addition to archival sources, the texts under examination include Western legal and political theorists whose writings circulated in colonial Egypt. The colonial career of their writings and the sensibilities they introduced prove significant to the rise of juridical humanity. My concern, to be sure, is not whether these theorists justified or opposed colonialism, but how their thought, articulated irrespective of colonialism, intersected with and contributed to colonial technologies of rule. Juridical Humanity is also a historical and theoretical tale about loss. This loss is double: the historical loss of the shari‘a system of law, of a different relation to the human and another experience of nature, history, and violence; together with the loss of the human to modern law, when the law laid claim to a monopoly over the power to declare the presence of the human. Both of these losses, however, are incomplete. While this book is first and foremost an account of the powers of modern colonial law, it is also evident in many chapters that these powers never secured themselves entirely. Far from indicating a failure, this incompleteness provides at once an occasion to intensify these powers and a space for competing 5

in t roduc t ion

ones. The various chapters of this book either point to the crisis of modern colonial law, its paradoxes, or to the persistence of other articulations of the human and other images of the law. Crucially, however, this book does not address the question of whether Egyptians, in general, abided by or fashioned themselves according to the powers of the law. This would be an important and significant inquiry, but it exceeds the scope of this work, which aims to historicize and theorize the powers of modern law as they unleashed themselves and attempted to activate a particular concept of the human. For any work on the human and colonialism, Frantz Fanon must provide some inspiration, or at least a starting point. He does so here precisely in his refusal to defend the argument that colonialism could confiscate the humanity of the colonized. By this refusal, he also rejects the more general thesis that humanity is a status that can be taken away or given back. This thesis is essentially the one that modern colonial law put forward in colonial Egypt; the only difference is that colonial law in Egypt claimed to humanize, not dehumanize, the Egyptians. Both claims, however, of humanization and of dehumanization, belong to the same understanding of the human—one that takes it as a status capable of being conferred or confiscated by the powers of the colonial state. In both cases, the colonial state emerges strengthened. In the chapter “Concerning Violence” in The Wretched of the Earth, Fanon argues that “decolonization is quite simply the replacing of a certain ‘species’ of men by another species of men.” The assumption here is that man, or the human, always already exists and is not the product of any historical force, including that of violent decolonization. Further, he adds: “Without any period of transition, there is a total, complete, and absolute substitution.”9 This instantaneous transition is then opposed to a historical process of gradual transformation. There is no discourse of “transition to”; instead, there is a shift—the destruction of the old and the birth of the new. This “new” consists of “new men, and with it a new language and a new humanity.” In Fanon’s analysis, decolonization is “the veritable creation of new men.”10 At this point in Fanon’s text, the new man is opposed, in a Hegelian fashion, to the “thing,” or to the old man: “the ‘thing’ which has been 6

in t roduc t ion

colonized becomes man during the same process by which it frees itself.”11 There is a tension in the description of the colonized subject: Is he a “thing”? “another species of man”? or is he both? It is the latter option, I argue, that guides Fanon’s inquiry. Later in the text, he directly states that the colonial order “goes to its logical conclusion and dehumanizes the native, or to speak plainly it turns him into an animal.” The power of colonialism, here, rests in the dehumanization of the colonized; its force and violence is uncovered through the term “dehumanization.” But does Fanon argue that the colonizers, by dehumanizing the colonized, turned the colonized into animals or that they constituted them as animals? The difference between the two statements is the following: the first speaks in the words of the colonizers to reflect their approach; the second endows these words with constitutive force. Later in the same passage and in order to establish his point, Fanon cites “colonial vocabulary” that describes the colonized as an animal, only to add: “The native knows all this, and laughs to himself every time he spots an allusion to the animal world in the other’s words. For he knows that he is not an animal.”12 Fanon makes it clear that this vocabulary is not constitutive. Yet he then adds: “And it is precisely at the moment he realizes his humanity that he begins to sharpen the weapons with which he will secure its victory.”13 This “moment of realization” would seem to indicate a point in time that follows a previous point in time when the colonized did think of himself as an animal, as a thing. In other words, it indicates a linear temporality structuring a transition from one recognition to another. But this moment of realization could also be read in nontransitional terms. It could stand for a moment that takes place simultaneously in relation to two other experiences: the awareness of undergoing dehumanization by the colonizer and the recognition of being also a “thing,” an “animal,” indeed a nonhuman. The insistence on one’s humanity in the first instance is an act of resistance that struggles against that which attempts, but never succeeds, to dehumanize. Or as Fanon writes later, the native “is overpowered not tamed; he is treated as an inferior but he is not convinced of his inferiority.”14 The insistence on one’s humanity in the second instance is an act that accounts for the nonhuman in the subject but also recognizes the human. The final transformation of the colonized, the replacement of one species 7

in t roduc t ion

of men by another, therefore, does not consist of humanization. Humanity is always already posited as a starting point in The Wretched of the Earth and as accompanying the nonhuman in every human. Fanon traces the colonial vocabulary that attempted to dehumanize the colonized. In the process he reveals that the status of humanity could not have been confiscated, even by colonialism, because the nonhuman coexists with and within the human. Juridical Humanity traces an opposite move: how the colonial state attempted to juridically humanize the colonized, and in so doing how it also revealed how humanity came to be thought of as something that could be confiscated or allocated. Fanon would not, perhaps, have agreed that operations of juridical humanization were constitutive of the colonial state; his critique is aimed at how the colonial state assumed powers of dehumanization. Indebted to his analysis nonetheless, Juridical Humanity provides an examination of how the colonial state assumed the powers of humanization. Crucially, both approaches point to the operations of colonial power unleashed by the negotiability of the human—that the human is also a nonhuman. This negotiability of the human is one characteristic of juridical humanity. But “juridical humanity,” to be sure, is a concept that was not present in the historical sources of Egypt’s colonial history. As explained in chapter 2, where I develop this concept, “juridical humanity” is deployed to theorize the human as it came to be entangled with modern law in colonial Egypt. This concept rearticulates Hannah Arendt’s concept of “juridical personhood,” while it also departs significantly from it. In her account of what she terms the Nazi state’s dehumanization of the Jewish population in The Origins of Totalitarianism, Arendt posits that the first step toward total domination consisted in the “murder of the juridical person.”15 The murder of the juridical person in her analysis necessitates the destruction of rights: “The destruction of man’s rights, the killing of the juridical person in him, is a prerequisite for dominating him entirely.”16 Juridical personhood is not simply a status conferred by the law; juridical personhood belongs to every person, as a condition of birth. Rights belong ontologically to every person. What is crucial for the purposes of this book, however, is Arendt’s argument that the murder of juridical personhood contributes to the loss of the human. In this sense, for her, every human is a juridical person. The 8

in t roduc t ion

loss of the latter, or the loss of rights, results in some loss of what is human. The juridical person and the human therefore overlap in her account. The human is always already juridical, in the sense of being endowed with rights; stripping away the juridical is one step toward dehumanization. Thus, the concept of the “juridical human” draws on Arendt’s articulation, while stretching it in order to suggest that colonial law not only produced an overlap between the human and the “juridical person” but also collapsed the former into the latter. “Juridical humanity” is the product of this collapse. Further, while Arendt finds the juridical person to be a condition of protection, this account of the colonial history of Egypt finds juridical humanity to be a technology of colonial rule. In this way, the approach to the law guiding this book differs significantly from Arendt’s. As further developed in chapter 2, if she finds exclusion from the law to be a precondition for violence, the colonial history of Egypt reveals how inclusion in the law was a colonizing force engendering its own formations of violence. Juridical Humanity, then, departs from Arendt’s account of the law and her positing of the death of the juridical person as a force of de­humanization. Instead, the colonial history of Egypt reveals the birth of juridical humanity as fashioning a figure of the human, always already entangled with the law and included in it. This birth was constitutive of colonization and of particular formations of violence. Moreover, the overlap between the juridical person and the human, unlike in Arendt, is not assumed here to be ontological but is articulated as a historical force, one that chained the human to the juridical and worked to foreclose other scenarios for the human. This book, however, is not limited to an account of the human, law, and colonialism in general. The particular history of Egypt is a force impelling this account. The loss engendered by the rise of positive law and the legal sensibilities to which it gave birth are central concerns. This book therefore follows, albeit in an indirect way, the intellectual project of Egyptian historian Khaled Fahmy, whose writings on Egyptian legal history aim to recover the khedival legal order that existed prior to the rise of positive law in the colonial era. While this historical account refers only incidentally to khedival legalities in order to clarify what distinguishes them from colonial legalities, Fahmy’s project is central to the effort to 9

in t roduc t ion

explain how the khedival, and more generally the Ottoman, legal order came about.17 If Fahmy recovers the khedival legal order, then, Juridical Humanity highlights the powers of modern law that ventured, in colonial fashion, to displace that order. The work of Talal Asad here proves significant in narrating the conquest of Egypt and elsewhere by modern colonial powers. His analysis of the rupture brought about by the positivization of the law in colonial Egypt is the inspiration for this book. Furthermore, crucial to this study is Asad’s analysis of how modern powers, humanist sensibilities, and definitions of what it means to be a proper human have universalized themselves and unleashed destruction on the old in the name of the progress achieved through the modern.18 Of central concern, however, in addition to loss, are present-day problems that continue to have their roots in the tradition of positive law. Egyptian jurist Tariq al-Bishri highlights such problems and connects them to the late nineteenth century. He argues that one of the forces contributing to the crisis of Egyptian law was the combination of foreign economic and political conquest with the accompanying infiltration of Western legal cultures under the banner of reform. Describing these laws as foreign and imposed, al-Bishri proceeds in his examination of the postcolonial era to argue that this historical process culminated in making the law “external,” constituting “one authority in the face of individuals,” who are alienated from it: “The law no longer consisted of order, rules and livelihood, adjudicating the relationship between the people through their direct relationship and living human connections, as well as through collective entities that grant them the feeling of belonging and human association.”19 I leave aside the question of whether one can imagine the other modern law al-Bishri invokes to criticize the contemporary legal system as it has developed since the nineteenth century. His comments about current state law, however, reveal a relationship of bondage between state law and Egyptians. Juridical humanity was partly responsible for the formation of this relationship of bondage. Juridical humanity chained the human to the law and to the state, and offered no external legitimation for doing so. The law was far from being an external force; it attempted to infiltrate the human, to constitute it, and by doing so it endeavored to leave no space for the law that al-Bishri posits as an alternative. Modern positive law colonized 10

in t roduc t ion

Egyptians by turning their humanity into law’s own teleology. It takes a particular kind of rebellion, not just any rebellion, to break these chains. Juridical Humanity comprises six chapters that investigate law and the human in relation to history, nature, sovereign power, and violence. The focus is on nature, sovereign power, and violence because these came to assume the position of the others with respect to the human and the modern rule of law during this period in Egypt. The query into history identifies the rise of juridical humanity as partly the product of a historical consciousness that distinguished the modern colonial from the pre­colonial. But ultimately the book points to the historical impossibility of these distinctions as they were demarcated. It consequently locates the juridical human inscribed in nature and in violence, traces the particular details of these inscriptions, and points to the persistence of some traces of the precolonial in the colonial as well as their reconfiguration. .

.

.

Chapter 1, “Conquest,” is an account of the coloniality of the codes, institutions, and textbooks of the new positive law as well as the legal profession that came to govern Egypt, replacing the Ottoman-khedival order. The chapter offers some background about the law in colonial Egypt that would give birth to juridical humanity. The coloniality of the law is found in the forceful elimination of past legal traditions, in the conquest not only of a territory and its inhabitants but also of the past. Colonial law emerges as a force productive of historical sensibilities that destroyed a remembered past and in turn intensified the present of the colonial, its ways of knowing and living. To detail this coloniality, I examine legal-historical writings concerned with the past as well as with the discipline of history. These writings generated a law that constituted a historical force. The law itself historicized the past of Egypt and relegated it to a different territory. I also probe legal reform practice and its interpretation as it unfolded through the professional legal class, both of which reconfigured Egypt’s relationship to its past and future. This reconfiguration intertwined with the temporality of legalhistorical writings. When the past no longer constituted the groundwork of legal theory and action, the present ceased to be a moment that constituted an addition to what had already taken place, becoming instead a time 11

in t roduc t ion

that generated its own citability. The coloniality of positive law consisted both in its lifting the weight of the past and in the resultant arbitrariness of the law once it, together with the present to which it belonged, began to evolve cyclically and to constitute its own ground of legitimation. The chapter concludes with another text from the colonial era, whose author defied the historicizing effect of positive law while advancing a law that was also grounded in joint temporalities rather than historicized discrete eras. Chapter 2, “Conscripts,” introduces the concept of “juridical humanity” and relates it to the historical-juridical consciousness charted in chapter 1. In this chapter I investigate the colonial career of the human in relation to the law by examining key colonial legal powers—doctrines and practices—directed at elevating Egyptians to the status of the human. Targeted populations included peasants, laborers, and prisoners. Through the examination of legal texts, philosophical writings, and reform practices, the human emerges inscribed as the teleology of modern law. I argue that this juridically effected inscription and inclusion in universal humanity, and not exclusion and dehumanization, were constitutive of the colonial state. Claiming to be distinct from the inhuman, modern positive law assumed the power to humanize. The category of “the person” within positive law enabled such a declaration and inscription. The innovation of juridical humanity arose from the figure of a self-present, bounded human; the absence of the autonomous human, together with the inhuman, constituted the other of the human. Through an examination of a series of legal reforms, the inhuman emerges as having been preserved in the human. The human, in turn, materializes as the excess that remains in the law, and is therefore produced by it, after the expulsion of exploitative practices that the law declared inhuman. The chapter also recovers from Egyptian history a different concept of the human, one that did not follow the logic of juridical personhood. Mystical yet modernist, this other articulation of the human took itself to be part of a larger substance including the organic and inorganic—stars, rocks, and plants—and extending beyond death. This other articulation of the human could not have rendered itself useful to colonizing operations. Chapter 3, “Wounds,” traces specific humane legal reforms that directed themselves at the elimination of acts defined as cruel against crimi12

in t roduc t ion

nals and animals. Under investigation is the human denominated by these reforms, the sensibilities regarding suffering deployed by the reforms, and the violence that persisted in their midst. Through an examination of prison reforms, I argue that the project of juridical humanity put pain and suffering to use: the reduction of suffering became instrumental to increasing pleasure. Importantly, becoming human through the law came to be equated with the reduction of suffering; excessive suffering signaled dehumanization. Locating suffering on the side of the inhuman, colonial powers carved out a space for their own intervention. The human became the telos of humaneness as ordered by humane legal reforms and the broader project of juridical humanity to which they belonged. This chapter also begins a discussion of the relationship between the human and nature, by examining reforms directed at alleviating the suffering of animals. Egypt witnessed the introduction of criminal legislation defining certain acts of violence to animals as cruelty, penalizing these acts, and forcing Egyptians to become more humane on the way to becoming “properly human”; excessive suffering not only dehumanized its victims, but its infliction also dehumanized its agents. I also argue that the human implied by these reforms is one who learned how to define and distinguish between humane violence and inhumane cruelty against fellow Egyptians and animals. Legal reform cemented an association between humans and animals that challenged the bounded characteristics of the human. And finally, the chapter attends to the violence that persisted in the midst of and during these humane reforms, against both animals and prisoners. The very law that defined and prohibited cruelty also authorized other types of violence. The project of juridical humanity did not aim to erase violence but rather to prevent unproductive, disproportional violence. These other types of violence became figured as “humane.” Chapter 4, “Battles,” develops the theme of the human-nature relationship introduced in chapter 3 and inquires into the coercion of human labor in its encounter with nature. As in chapters 2 and 3, I continue to explore the theme of violence while focusing on questions of peasant labor, touched upon briefly in chapter 2. Recounting how insects attacked the cotton fields of Egypt, threatening the cultivation of cotton for world markets, the chapter documents the legal-scientific war waged against these insects 13

in t roduc t ion

and the penalizing measures introduced by the colonial state against peasants who failed to become conscripts in that war. The chapter probes the meanings of nature and the human that were engendered in the course of this war and the characteristics of human labor enforced by the colonial state. These penalizing measures are compared to other agricultural reforms that sought to rid peasants of their suffering by prohibiting the use of the whip and regulating the institution of forced labor. The management of labor became no longer a state concern, and labor was relegated to the domain of private property. The question guiding this chapter’s inquiry is, how did these two sets of legal interventions, one regulating the use of force against labor and one penalizing labor, coexist in the colonial history of Egypt? I argue that humane reforms minimizing the unfreedom of peasants took no account of and thus excluded free wage labor. At the same time, the penalization of free wage laborers did not seem to contradict humane reforms because colonial penal law purified itself conceptually from force and unfreedom—the seal of the inhuman in relation to labor. But the penalization of peasants also revealed another cultivation of the human: if they were to exhibit the characteristics of human labor, peasants had to fight the forces of nature. These agricultural/penal legalities then demonstrated a concept of the human that placed it in opposition to force and unfreedom. And yet, in the colonial history of Egypt, force remained a central player: the colonial state continued to practice force through the institution of penal law. Penalized labor no longer revealed the persistence of unfreedom in a state that regulated forced labor but excluded free labor from its purview. Law in colonial Egypt could claim that it only sanctioned free labor and that it, the law, opposed force. But since this force that it opposed included the forces of nature, the law unleashed its own force to fight them. The juridical cultivation of human labor among the peasants, recruited for the production of cotton for the British and other world markets, took place in the fields of forced battle. As peasant laborers were one of the main groups targeted for humanizing reforms, I continue in chapter 5, “Red Zones,” to explore the question of the peasantry and their relation to the new regime of law. The focus here shifts to the liberal characteristics of the new state law that distinguished itself from the khedival legal order, while promoting the 14

in t roduc t ion

liberal doctrine of a “government of laws, not men.” Specifically, I examine the consolidation of a regime of private property, which consisted in the privatization of large estates where peasants cultivated cotton for the British and world markets and lived under legalities constituted and executed by these estates’ private owners. Under consideration is the colonial fate of the privatized estates in relation to their history when one sovereign, Khedive Isma‘il, and his family, owned most of the plantations. The colonial privatization of violence against peasants in cotton plantations resulted in the exclusion of that violence from state law and the formation of a purified conception of state law and a rule-of-law regime. This exclusion stood in opposition to a precolonial regime of sovereignty that recognized its own violence and included all estates in the sovereign’s law. Meanwhile, “juridical humanity” did not regulate privatized violence but rather willed it out of the state’s existence. Such “humanity” produced and exacerbated more unregulated violence on private plantations. But the distinction between the private and the public is not taken for granted; instead, the chapter recovers privatized violence and reinscribes it into state law and the project of juridical humanity. Through a reading of several criminal murder investigations on the estates, the rule of law emerges as something other than a set of abstract, universal rules, opposed to sovereign power. Rather, sovereign power, as it was rearticulated during the colonial era, became functional to the regime of the rule of law. Colonial modern law, therefore, is better described as a map containing multiple legalities. Similarly, the colonial state comprising the estates consisted of regional forms of power, of landed zones of subjugation that were less and less juridical but at the same time constitutive of the law now understood in the plural. The meanings of juridical humanity shift once again with this account. If the estates, with their violent technologies of labor management, engendered state law, then the human that the law claimed to protect was equally contaminated. Juridical humanity now appears as a site of productive suffering and not the eradication of suffering. Chapter 6, “Crisis,” continues to trace the characteristics of the colonial liberal legal regime, this time in relation to legalities the British colonizers articulated as excessive. These include military tribunals, the Commissions of Notorious Criminals, and martial law. The chapter reads a series of Brit15

in t roduc t ion

ish archival sources debating the necessity and legality of these forums. But rather than focusing on how these legalities operated in a typical colonial fashion to exclude the colonized from the general law by enacting exceptional violence against them, I examine what these legalities reveal about the hybrid nature of modern colonial law, in particular in relation to its ideal and factual elements. The debate among British colonial officials on whether or not to resort to these exceptional measures highlights an additional colonial technology of rule, one that split the hybrid world of the law and the world of humans between the ideals of humanity and the fact of colonial violence. This split was fragile because the law and the world were characterized by hybridity, not pure oppositions. Further, efforts to protect the ideal elements of the law by deploying law’s violence against rebellion, vengeance, and criminality only revealed the fragility of this split. The result was recurring crises and renewed splits. Both the split world and its untenability constituted a technology of colonial rule. It follows that such a technology, joining humanity and violence, cannot be criticized from the grounds of the ideals of humanity and the rule of law; these ideals, purified from the fact of colonial violence, were themselves implicated in colonial rule and led to the ensuing hybridity. Like the grounds of its birth, the juridical human was also made to split itself by purifying its ideals from the fact of violence and hence to engage in a struggle against violence in the name of its ideals. Crucially, this struggle was also against the violence of nonstate actors claiming competing sovereign power, therefore solidifying the bond with the modern colonial state and its positive law. Juridical humanity, then, was an institution that engendered its own colonization. .

.

.

Law, in colonial Egypt, gave birth to a juridical human that was supposed to exist in the presence of a particular legal regime—positive and liberal, singular and universal, autonomous and abstract. Promoting itself against what it articulated as the violence of the khedival legal order and its inhumanness, colonial law detached itself from the checks of the past and established its authority in its own present. This was law’s first arbitrary procedure. The law then inscribed the human in the body of its rules, which indicated the rise of a new system of bondage whereby the 16

in t roduc t ion

law decided on the presence or absence of the human. This second arbitrary procedure gave the law a power that was limitless and magical. In claiming to humanize the colonized, this law decided on the distinction between humanizing suffering and dehumanizing pain, thereby enabling the persistence of violence. The law claimed to free itself from force, even as it reintroduced force in the form of penalized/forced conscription for battles and wars. Not only were Egyptians forced, but they were also forced to fight force: force lost its distinctiveness. Meanwhile, appearing as a singularity, this law relied on multiple forms of sovereign power that it simultaneously disavowed. These forms enacted private violence that was left unchecked. Invoking ideals of humanity, the law’s exercise of violence became ever more necessary. Operations to shield humanity came more and more to resemble storm operations against Egyptians. Juridical humanity, with its claims of overcoming a despotic past, was from start to finish a concept productive of subjugation to the state and its law. To escape bondage, to introduce a different concept of the human, or to abandon the human as a political concept, rebellion and continuous struggle may be the only course. But this will depend on the practice of rebellion and of struggle; struggles and rebellions may only end up reproducing the sovereignty of the state and its positive law. And yet, some rebellions and struggles carry the potential to introduce new texts and practices for losing the human in politics, or articulating other concepts of the human, while challenging the texts and practices of state law. While this book addresses rebellion and political struggle in the history of Egypt only briefly, in chapter 6, one of the challenges of Juridical Humanity is to clear a space beyond the juridical to think about both the human and politics. Enacting other possibilities for articulating the human, or abandoning the human as a central category for modern politics, are possible consequences of interrogating juridical humanity. The interrogation undertaken in this book is in some sense an opening of a space for rebellion and struggle: for texts, events, and practices that articulate another concept of the human or lose the human in politics. But the colonial history of Egypt as recounted in the following pages can tell us less about that.

17

chapter 1

Conquest

We have our own Anglo-Indian Codes as examples of what may be done for an inferior race by a superior, which establishes equality before the law as the first step on the path which will eventually lead to something like equality in civilization. h a r o l d p e r ry, “Justice in Egypt”

1 8 8 3 wa s t h e y e a r of the colonial legal conquest of Egypt that im-

mediately followed the military conquest in 1882. Fought not by British troops but rather by British and Egyptian lawyers, politicians, and administrators, the legal conquest initiated a series of reforms announcing the rise of modern positive law and the demise of the Ottoman-Islamic legal tradition.1 New civil and criminal codes replaced the existing statutes (qawanin) and shari‘a practice. The opening of secular national courts (mahakim ahliyya) replaced the shari‘a courts and the siyasa councils.2 Historians of Egypt continue to debate the coloniality of these reforms, asking whether they served British occupation or Egyptian resistance to it and inquiring into the identity of the actors, local or foreign.3 Some examine the political history of the reforms and the particular political interests they served; others emphasize that Egypt was never legally a colony and that its status remained “occupied.”4 These approaches, however, do not consider the law that came to govern Egypt after 1883 on its own grounds: its theory, its epistemology, the sensibilities it attempted to cultivate, and its own colonizing operations.5 Instead, colonialism, when it is said to be present in Egypt, is reduced to the political context in which the law operated or was resisted. The colonial emerges as a separate political adjective attached to a system of positive law that did not itself engender colonizing power. Further, because the new legal order mirrored many liberal legal systems in Europe and could not be labeled as exceptional or based on a paradigm of racial difference, some histo21

history

rians do not even label the law “colonial.”6 These approaches posit the colonial as outside modern law, as the product of other historical forces. The colonial is a characteristic to be identified horizontally in comparison with other parallel legal systems; its operations are to be examined in the present in which they unfold. What escapes consideration in these accounts is both how the law itself engendered coloniality and how this legal coloniality interrupted the flow of time. Coloniality did not simply consist in interventions happening throughout time and affecting the law, as if external to the law and to time. Colonial law may be a paradigm of exclusion and inclusion,7 a European imposition on the colonies that simultaneously transformed them,8 or a work of codification that fixed particular versions of practiced tradition.9 But the coloniality of the law is also revealed in the forcible elimination of other legal traditions, in the international homogenization of the law, and in the conquest not only of a territory and its inhabitants but of the past.10 In its quest to homogenize the world, the colonizing power of modern law was directed not only at the present but also at the bond between the present and the past—specifically, at how those who were living in the present, the colonized, were released from the past, from the tradition that once defined their own ways of living, and were bonded instead to the present of colonial law. Colonial law, in short, was a force that produced historical and temporal sensibilities that ruined a remembered past while intensifying the present of the colonial, its ways of knowing and living. And in that present, as I argue in the following chapters, the law claimed a monopoly over the animation of the human. Viewed in this way, the year 1883, in which a new legal system for the government of Egyptians was established, was not the birthdate of colonial law, despite the two historic legal reforms that took place: the establishment of new, secular national courts and the codification of the penal and civil law in accordance with the French model. While these juridical texts and institutions constituted an innovation in the legal history of Egypt, positive law’s coloniality would only begin to be actualized once it had secured a new relationship to the past of Islamic-Ottoman law and to the tradition transmitted by that past. In Egypt, legal coloniality was a product of temporal practices that followed the primary reforms and 22

conquest

secured their new authority by severing key ties between Egyptians and their legal past. It was not a coincidence, therefore, that the first legal journal in Egypt, Al-Huquq, beginning publication in 1886, was devoted to the subjects of both law and history. While strictly speaking it was not a journal of legal history, the question of history was central. Similarly, one of the first books on the Egyptian legal profession, published in 1900 and titled ­Al-Muhamah (Lawyering), devoted many of its pages to the history of the legal profession in Egypt, to the law in Egypt during the first three quarters of the nineteenth century, and more generally, though less thoroughly, to past legal traditions.11 Other positive law textbooks published in the late nineteenth century included various discussions of the past, ranging from Roman to Islamic law. Still other books produced analytic accounts of positive law that lacked any historical dimension. Many of these publications testify to a measure of concern with the past as well as with the discipline of history that accompanied the rise of positive law, which, in its modern secular sense, was without precedent in Egypt. The legal system introduced in Egypt in 1883 departed from that which had governed Egypt until then. While some Egyptian lawyers interpreted the legislative innovations of the first three quarters of the nineteenth century as seeds of the 1883 reform, none found this legislation to constitute a tradition of positive law, to which the reforms of 1883 belonged.12 How, then, should we understand the impulse to wed questions of law to those of history? Did securing the colonial authority of the new law require wrestling with its past? If so, what was the relationship between law’s authority, the past, and history? What different meanings of authority did wrestling with the past, or thinking historically, generate? Was relating time present to time past equivalent to thinking through the methods of the discipline of history? To what extent was thinking historically a process symbiotic with erasing the past and limiting the experience of time to the present, and how does this history show how presentist approaches to the law were imbued with colonial power operations? Finally, how did this presentism of positive law contribute to the rise of “juridical humanity”? Four inquiries and related arguments make up this chapter. First, the legal rhetoric that positive law provided for the colonial state far exceeded 23

history

the force of law engendering a new historical colonial area, institutions, and practices.13 Rather, the very positivizing of the law and its secularization engendered a new temporal sensibility, that is, particular ways of relating to the past and of thinking historically. For if positive colonial law enabled certain possibilities of action, while eliminating other, past ones,14 the question of the past and the association one has, or should have, with it cannot be ignored. The transformative and destructive power of modern law necessitated an account of its own past, of the reality modern law would destroy or transform, and therefore a measure of historical scrutiny.15 This chapter examines a number of legal-historical texts concerning positive law to inquire into how the past ceased to be a burden in the present and future of the new colonial positive law. Second, the temporality that legal-historical writings articulated was homologous with the temporality that the reforms of 1883 were intended to engender discursively, as it were, opening a new page in history. The interpretation of this legal reform by the new class of legal professionals produced a legal discourse that reconfigured Egypt’s relationship to its past and future and intertwined with the temporality of legal-historical writings. The third inquiry concerns the theorization of the particular colonial authority with which positive law endowed itself in Egypt. The focus here is less on the identity of the texts or the political powers authorizing the law—colonial, indigenous, or otherwise—and more on authority’s mode and the “kind of binding it is.”16 The binding of positive law, it is argued, operates through presentist practices; in colonial Egypt, historicization of the past turned the past into an era that preceded the present but no longer claimed it. This new temporality, itself a modern power, secured the authority of positive law by citing its own present and repeatedly writing down its foundational texts. This authority no longer bore any relation to the meanings of authority in Islamic law, whose ground was the tradition connecting the actions of the present to the deeds of the past.17 Under positive law, the present ceased to be a moment that followed from the past, a moment constituting an addition to what had already taken place. It is here that the coloniality of positive law is to be located—in its lifting the weight of the past and in the arbitrariness that resulted once the law, together with the present to which it belonged, began to evolve cyclically 24

conquest

and to constitute its own grounds of citability and legitimation. The law came to be both the means and the end, the grounds and the product, the referent and the sign. The fourth and final inquiry excavates from the colonial era a text whose author inhabited what I call “joint temporalities” of past and present and proposed a law likewise grounded in joint temporalities rather than historicized discrete eras. My intention is to avoid reproducing the historicist view of the movement of time by pointing to texts that did not follow the logic of discrete eras. legal-histor ical inquir ies From the very first years of Egyptian legal writing during the post-1883 era, positivist legal writings employed the historical method and made historical inquiries into the past. To a great extent during this period, legal writing was also historical writing.18 This period, as Yoav di-Capua shows, witnessed the emergence of a modern historical sensibility and the practice of historicism.19 Taha Hussein, a modernist intellectual, practiced a similar turn in his writings on Islam generally. Of his work on the Islamic past, cultural critic Faisal Darraj writes that it constituted a humanization of history.20 Egyptian lawyers also produced texts saturated with historical and temporal sensibilities, texts that followed specific historical methodologies by thinking with, and sometimes without, history.21 In the juridical field, there were also ahistorical writings about the law—ways of inquiring into the past that did not historicize it as a separate era but collapsed it into the present. The ahistorical mode of inquiry did not necessarily result in thinking without the past; as will become evident, the relationship between history and the past was not one between synonyms. A selection of short articles printed in the journal Al-Huquq, the earliest legal journal published in Egypt, sheds light on these historical and ahistorical inquiries. These articles explored Egypt’s past in relation to its present. Together they point to how the past was recollected, the different modalities of recollection, and the extent to which the doctrine of positive law intervened in this recollection and thus cultivated particular historical sensibilities among lawyers writing within and about positive law. 25

history

The relationship between law and history was at the center of the introduction to the first issue of Al-Huquq (March 1886). The introduction begins by describing the scope of the subjects that the new journal will cover, stating that they are legal and historical: He who contemplates these two matters [history and law] will not be surprised to find that they consist of great benefits and prevalent wishes, for law and history maintain justice and right (al-haq). They contain the fruits of happiness and compassion for humankind, as well as the unshakable republican structure. Law and history are the reference to natural rights. They shape contemporary centuries by recounting the events of times past. It was right that fixed the celestial bodies, organized the natural masses, and founded elementary essences, the key ingredients of things, as well as the primary elements. Yes, right is an internal quality of creation, or, put differently, right is creation’s distinctive characteristic. Impressed by the natures of existing things, everything in the abyss of this existence carries a nomos guiding its movement. Through right, the inanimate world was fixed in accordance with a known nomos, and through right, plants’ vitality surged and the germs of animals were set in motion. Human instinct sought its happiness and security through right, aiming, or being aimed at, preserving itself explicitly and preserving others implicitly. Creation and right are interwoven, united, and fused.22

“Right” is only one translation of al-haq, which also means “justice” or “truth.” Al-Huquq, on the other hand, the plural of haq, signals “rights” in the positive sense (as distinct from “justice” or “truth”). That the word “justice” is adjacent to the word “right” in the text above does not necessarily indicate that the author meant that al-haq, or right, is distinct from justice. In the Arabic language, joining synonyms or words that share common meanings is an ordinary practice, called parallelism (taraduf ). In the paragraph quoted above, Amin Shmayyil describes a right that has not yet been articulated in accordance with positive jurisprudence but rather is articulated in natural law. “Right,”23 in his analysis, belongs to the order of creation, to the Creator; human beings are not its author: “It was right that fixed the celestial bodies, organized the natural masses, and founded elementary essences, the key ingredients of things, as well as the primary elements.” The text reveals the infinity of law; it enjoys an 26

conquest

ahistorical presence, cementing the past and the present, and “shaping contemporary centuries by recounting the events of times past.” What characterizes this bond between past and present? Later, Shmayyil distinguishes between irrational brutes and rational creatures and makes clear the consequences of this distinction: “The Creator ordered the movement” of the first, whereas the second “direct themselves through the guidance of natural foundations, and are administered by an intelligent power.” The “self-direction” of the rational creatures, he adds, “resulted in mutual rights and consecutive histories, known among jurists as natural, positive and moral laws.”24 This self-direction does not necessarily entail indetermination, or free will, for all, including the rational creatures, move in a given circle: “The relationship between the human ocean and other creatures is equivalent to the relationship between the individual and that which is superior to him, whereby everyone moves together in a given circle.” The circles, which may be partial or whole, “are initiated from the singular eternal, to which all circles refer, for the eternal defies change and age, may it remain sacred in its eternal nomoi.”25 All creatures are therefore subject to eternal nomoi (laws), and the relationship among the different elements is one of unity. Or as he puts it elsewhere, “With great perfection and fine balance, particles constitute a body, bodies constitute an order, orders constitute worlds, worlds constitute totalities, and totalities constitute an existence.”26 This unity in Shmayyil’s analysis intersects with some elements of natural law, of Darwinism, and of Sufism, specifically Ibn ‘Arabi’s exploration and theorization of the unity of being—three movements that influenced Egyptian social and legal thinkers during the late nineteenth century.27 Though different in many respects, all three nonetheless highlight the continuity between the various elements and forces of creation.28 In Shmayyil’s analysis, this continuity unfolds temporally: Everything ferments, matures, and moves in those small particles, acquiring new shapes, forms, degrees, and orders until it gains a determined appearance. Each contains an essence, which even in this tiniest form has been determined by the Creator. The present mirrors absence, and evidences the future; everything in the chain of being has been ruled: images that lapsed, images that are passing,

27

history

and those that are yet to come are all accounted for in the comprehension of the Creator; nothing escapes the Creator, not even the weight of a speck of dust on earth and in the heavens, and all that is between them. . . .

The minute, the day, the year, the decade, and hundreds of decades constitute a singularity before the Creator. All things, great and trivial, have proportional function in their existence and that of others.29

The existence of one Creator synchronizes all eras into a singularity. The methods of this synchronization are repetition (the present mirrors absence) and anticipation (the present evidences the future). There is neither any possibility of complete historical breaks in this account nor of linear progress. Toward the end of the introduction, Shmayyil adds: “Everything that orders humankind has its traces imprinted on the jewels of the past; its reasons and aims, as ordered by the all-present, precede all existence.” Far from collapsing all times into the past, Shmayyil argues that all times were already anticipated in the past and hence the past leaves its imprints on the present and the future. This argument echoes a temporality Walter Benjamin articulates in his second thesis in “On the Concept of History.” Unlike Shmayyil, Benjamin relates this temporality to redemption: The past carries with it a secret index by which it is referred to redemption. Doesn’t a breath of the air that pervaded earlier days caress us as well? In the voices we hear, isn’t there an echo of now silent ones? Don’t the women we court have sisters they no longer recognize? If so, then there is a secret agreement between past generations and the present one. Then our coming was expected on earth.30

Whether via the imprints of the past or its secret index, the past is not merely present but burdens the present, anticipates the future, and makes our coming expected.31 It is constitutive of the present and the future, even when it is forgotten. What does this temporality mean for the analysis of law, or right? Right, Shmayyil says, fixed the movement of things: “Despite all disagreement, these laws are undisputable. They are fixed; the more we delve into them, the more doubt and certainty intensify.”32 The fixity of law, then, mirrors the fixity of nomos and of the cosmos, as authored by the Creator. From this follows the cyclical movement of 28

conquest

time in history that repeats, with variations, past imprints.33 This is how right meets history. This relationship between law and history did not last for long. In the introduction to another issue of Al-Huquq (1888), which Shmayyil probably also authored, a different historical-juridical consciousness is articulated. In this later introduction, history begins to operate as a critical method for the study of the past and for the movement away from it. The science of history, he argues, “clarifies the false grounds on which many laws were established.” It reveals that these laws are “the product of false, but common, imaginaries.”34 History, he adds, helps to reveal despotic legislation enabling the process of isolating what requires progressive reform, which is of two kinds: that which can be realized immediately and that which should be delayed until habits and inscribed imaginaries are made to fit such progress. History, here, is a science that enables the placement of the law in a distinct era. History organizes past legalities with the objective of critically assessing them and progressing away from them. In another place Shmayyil asks, why is Roman law important to study? In his answer he cites “practical reasons” (that European law draws on Roman law) and “historical reasons” (that the origins of the Western legal system are Roman). He dismisses both as unpersuasive, and instead suggests a “good reason” and a “best reason” for the study of Roman law. A good reason for its study is that it is “superior to older systems of law as well as contemporary ones,” that it is “the best engineered law.” When Roman law was taught in Western law schools, “Western law improved.” The study of Roman law, then, according to Shmayyil, was a vehicle for progress. As to the best reason for teaching Roman law, he writes that it “belongs to the past whose study is now truly scientific.” The study of Roman law “is a better vehicle for the clarifying of general ideas and the realization of progress in contemporary societies.”35 Because Roman law is the product of human reason, “it reveals the imaginary that accompanies human reason.” It also reveals “how this imaginary degenerates from within and gradually abstracts itself from earlier formations, moving forward toward order and justice.”36 Degeneration here does not signal decay and cyclical movements of time. Degeneration appears to be an instrument of perfection achieved by 29

history

the abstraction of the core that remains. When applied to the legal system of Egypt, the operations of this historical-juridical sensibility become more apparent. They concern the annihilation and reconstruction of a particular legal tradition that once governed Egyptians. In an article evaluating the work of the national courts, three years after their establishment, Shmayyil discusses the tension between old practices and new principles and suggests moving away from an insistence on “tension” to a view of “judicial chemistry,” which he defines in the following way: Reducing all constituents to a simple one or similar simple elements, and restructuring them with new proportions according to the desired order. This necessitates killing existent appearances and reviving in their essence an order of new appearances. Such an operation is similar to when a grain of wheat falls onto the earth and then must die and decay in order for a new spike to grow with multiple grains. The result is that different forms of life on earth are in a constant state of annihilation (tafanon) and rebirth (takhalluqat).37

Degeneration in Egypt operates in a similar fashion to the degeneration of Roman law and its reconstitution. Degeneration is not an indication of the end of a cycle or of ruins but is rather instrumental to the birth of new life. It is sacrificial and redemptive: the old is eradicated for the sake of the new. The meanings of history lie precisely in this movement toward perfection, in which weaker elements are annihilated for the sake of new forms of life. But are these not precisely the operations of coloniality when it encounters a particular form of life or a particular law and wishes to give birth to a new one in its place? Could “judicial chemistry” be employed to describe the temporal and power operations of colonialism more generally in relation to its past? Chemistry, outside the judicial, is concerned with the composition of matter and the changes it undergoes during chemical reactions, that is, the transformation of one chemical substance into another. In this sense, chemistry does not introduce a radical break but demolishes the old and rearranges what remains in order to generate the new. The old thus becomes instrumental to the new; its transformation is necessary. This view does not conceive of the old as a tradition that may place claims on the present; rather, it fixes the old, dismantles it, and se30

conquest

lects some of its elements, outside their original composition, to be revived within a new set of relations. This is one way we can articulate how the shari‘a in Egypt lost the force it once enjoyed as a holistic legal tradition and began to constitute instead a reserve of principles and rules, some of which could be selected and codified in a new form—the statute. I shall return to the work of codification later in this chapter. For now, I would like to consider another approach to the legal history of Egypt, one that did not follow the “judicial chemistry” approach, yet produced a parallel distancing from the past, in particular from the khedival legal system that developed during the first three quarters of the nineteenth century. In their writings about the pre-1883 legal system, late nineteenth-century Egyptian lawyers effectively buried that system, dismissing it as containing immature seeds and as never having constituted a proper legal system. It was a retroactive perspective on the first three quarters of the nineteenth century that enabled this evaluation, for the past became comprehensible only through the lens of the late nineteenth-century era of positive law. The historical investigation of the pre-reform period was accordingly limited to structures, practices, codes, and bodies that were found to resemble— but never equal—what was achieved during the late nineteenth-century reform period. As Khaled Fahmy and Rudolph Peters argue, because the pre-reform legal system was not understood on its own terms but in comparison to the reform period, it was always found lacking.38 But there is more. These writings put forward a story of linear progress by articulating optimism about the openness of the present to the future. Or to quote the words of an article from Al-Huquq, which discussed the revolution brought about by the 1883 national courts: “There is no doubt that the regular courts in Egypt have effected during the last three years a coup and paved the way to a happy future.”39 This view of the relationship between past, present, and future resembles what Reinhart Koselleck defines as the linear modern consciousness of time. Crucially, this consciousness does not only entail total dissociation from the past. Rather, “everything that was historically given—including history itself—was transformed into a process, the outcome of which of course remained open.” A space is opened for an ever-changing future, because of which “today could in good conscience be allowed to perish.”40 31

history

Ahmad Fathi Zaghlul’s book Al-Muhama (Lawyering) is exemplary of this consciousness. Published in 1900, the book recounted the history of the pre-reform period by tracing the various—and, according to Z ­ aghlul, often contradictory—decrees issued by Egypt’s rulers. It also described the establishment of early nineteenth-century councils endowed with judicial powers, their abolition by one ruler, and their reestablishment by another. Some of these councils, Zaghlul noted, such as the Supreme Royal Council (al-Majlis al-‘Ali al-Malaki), were often established without decrees specifying their organization and procedure.41 Administrators lacking legal knowledge or training controlled the judiciary.42 The decrees and councils demanded the obedience of individuals by inflicting pain and using brutal methods. Finally, Zaghlul argued, governors rarely followed the given regulations but rather sanctioned their own actions.43 According to Zaghlul, this was the legal reality of Egypt until the 1860s, when Isma‘il Pasha became the khedive of Egypt. He established a series of councils (majalis) in the provinces, which, however, also lacked a separation between the judiciary and the administration: governors acted as both administrators and judges.44 Zaghlul located the final episode of this saga in an attempt made in 1881 to reform the council system, which was interrupted by the ‘Urabi revolution and consequent British occupation.45 Throughout the text, Zaghlul employs a vocabulary replete with such words as “chaotic,” “arbitrary,” “fragmented,” and “sporadic” to describe the earlier legal system.46 Such a vocabulary is less telling of the past Zaghlul described than indicative of the present in which he was situated and which he was simultaneously enacting through his writing. During Zaghlul’s present, that is, the late nineteenth century, the new legal system was represented as systematized, unified, abstract, and rule based. The reform period became a point of reference with respect to which the entirety of history was understood. Zaghlul’s empirical observations of the past were by no means false. He devoted hundreds of pages of his book to recording the various decrees and decisions of Egypt’s rulers. The importance of his work and the reason he became an authority for generations of historians to come was that he reprinted in the book the full texts of various rules and khedival decrees.47 My concern here, however, is not with the accuracy of his de32

conquest

scriptions but with the nature of the legal material he recorded. Working within the framework of late nineteenth-century reforms while simultaneously authoring a new conception of positive law, Zaghlul was able to observe a very specific legal reality from the earlier parts of the nineteenth century. Zaghlul’s failed search for central hierarchical legal institutions, comprehensive codes, and an independent judiciary in the earlier decades testifies less to the pre-reform legal system and more to the new positivist conception of law in the late nineteenth century. This conception depicted law in colonial Egypt as unified and rational, a set of abstract rules and principles. By separating legal codes from legal action, Zaghlul inevitably overlooked the dynamics of legal practice in the past. He thus confined his attention to codes and institutions and the degree to which they were (not) general and unified.48 Zaghlul found the earlier legal system incomplete because it did not correspond to the positivist conception of law that had come to dominate late nineteenth-century jurisprudence. This lack of correspondence was not between two legal orders but between one legal order retrieved through the lens of the late nineteenth century and another systematized conception of law of the late nineteenth century. The work of systematization, as discussed below, was accomplished by the legal profession that constituted the law as composed of a coherent, unified, and abstract system of rules administered by lawyers and judges and taught in schools of law.49 The older system, on the other hand, was composed of two parallel bodies. The administrative councils (majalis siyasa) carried out a variety of juridical functions while applying a body of statute law (qanun); they focused mainly on matters of security and public order. Their work complemented that of shari‘a courts, which dealt with financial matters (damages) and occasionally with punitive matters (retribution).50 The body of statute law governing the work of the councils did not consist of comprehensive codes providing general principles. Rather, the statute law was in many cases particular and singular in its application. This particularity came to be regarded as a deficiency only when late nineteenth-century law began to be theorized as being composed of abstract legal principles. This theorized abstraction was accomplished in very particular ways. These included the education of a new generation of lawyers in the sci33

history

ence of positive law and the authoring of law textbooks in its tradition. Without the work of law textbooks and the institutional networks within which they spread, these abstractions would not have proliferated and gained sufficient power to define law itself. With legal abstractions stabilized, they became the reference point against which to define past law as made up of particular, arbitrary, and factual rules. What got lost in this comparison were the different grounds upon which the pre-reform legal system was based, as well as the degree to which abstract legal principles themselves were a product of the material forms of jurists’ labor—writing textbooks, teaching them in schools of law, and marketing them to other lawyers. What got accomplished in presenting positive law as detached from the past was the erasure of the past as a source of legal knowledge, as the grounds from which to pursue the paths of the law. Such was the rupture that colonial positive law engendered. This argument is distinct from both the argument that positivism legitimized colonial conquest and that the colonial encounter was constitutive of legal positivism. Anthony Anghie has pursued the latter argument in his path-breaking work on colonialism and international law.51 According to my argument, however, positivism was a temporal force that contributed to the very operations of coloniality, not merely legitimating it. Positive law itself unleashed colonizing forces. Therefore a different relationship from the one Anghie theorizes between positive law and temporality must be clarified. Anghie argues that the concepts and classifications employed by positivists were “outside and beyond history” at the same time as they were nevertheless used “to order history and society.” This temporality “was one means by which positivism presented itself as universal and eternal, existing in a realm beyond the reach of historical scrutiny. Positivism in this sense sought to suppress its own past.”52 Anghie develops this argument in relation to how international law disassociates itself from “the primitive” or “the uncivilized,” which in his analysis stands at the very heart of the discipline. International law could only be called law once it asserted the validity of custom as a source of law. But custom was the marker that distinguished primitive and uncivilized societies from civilized societies that had actual law. There was, then, an identity between primitive societies and international law that was required in order to establish 34

conquest

international law as law. At the same time, “international law . . . empathetically disassociates itself from the primitive by becoming the authoritative master discipline that identifies, places and expels the primitive.”53 At stake are certain historical developments that gave birth to positive international law, which in turn suppresses its own history and excludes those associated with it—the colonized. Anghie’s argument is important and correct. But it is correct only insofar as “historical scrutiny” is endowed with the critical power it is assumed to have—reversing the suppression of the past. But positive law’s suppression of the past is not always the result of its ahistoricity; furthermore, positivism’s particular historicity itself may result in the suppression of the past. Understanding these temporal relations may help to explain why the powers of the colonial project do not always consist in exclusion. Some of the historical accounts I have examined above resulted less in exclusion than, to borrow from Walter Benjamin, in the consideration of the past as a freely exploitable reserve of moments and resources.54 The status of precedent in modern law follows a similar pattern: legal acts and decisions of the past constitute a repository with the power to confer legitimacy on actions in the present.55 Further, when the past of the colonized is not suppressed but recounted as an episode in a narrative about the progress of the species, humanity, or particular societies, the powers of the modern colonial are unleashed through the inclusion of the colonized and their past, not their exclusion. This work of inclusion is of a particular kind and need not color all inclusive politics/histories. But this analysis does reveal that sites of critical inquiry need not be limited to relations of exclusion and that the work of inclusion can take different forms. For example, there are inquiries that fold the past into the present, that take account of the past not as seeds containing the germs of a mature present or as a territory distant from the present but as a force always immanent in the present.56 Such inquiries are commonly defined as ahistorical, but they effect an insertion of the past into the present and consequently an inclusion of its civilization, legal systems, and subjects. Such inquiries, however, were no longer fit for the practice of legal reform as it was unfolding from the 1880s onward, which itself also contributed to rupturing the present from the past. 35

history

t h e histor icizing pow ers of r efor ms Attempts at reforming the legal system began in 1880. In 1881, the minister of justice, Muhammad Qadri Pasha, presided over a committee mandated to reform the existing councils (majalis siyasa). Qadri Pasha proposed the codification of the shari‘a into a comprehensive civil code to guide the work of the councils. His proposal was rejected and his efforts did not come to fruition. Instead, a proposal made by Husayn Fakhri to establish a unified system of courts, based on the model of the mixed courts, was accepted. Egypt’s mixed courts were established in 1875, with jurisdiction over European or mixed European-Egyptian interests. They operated according to comprehensive penal and civil codes, which were based on the French model.57 In 1881 and 1882, a rebellion took place in Egypt. Named after its leader, Ahmad ‘Urabi, the revolution attempted to supplant the khedival state. Ahmad ‘Urabi forced on the khedive the creation of a parliament and appointed himself minister of war in 1881.58 The revolution and the restoration of the khedive’s authority were the pretexts for the British occupation of Egypt. In July 1882, before the final conclusion of British military operations against ‘Urabi’s forces, General Garnet Wolseley announced the restoration of the khedive’s authority in Egypt, backed by occupation troops under British command. According to the British Foreign Office, the occupation was temporary, meant to protect the Suez passage, which was strategically vital to European trading interests. In the fall of 1882, Britain sent Lord Dufferin to Cairo with the task of investigating “failures” of the Egyptian government to maintain financial stability and to recommend ways of meeting Britain’s limited objectives under the military occupation. The objectives of the occupation were “limited” insofar as Britain claimed that it did not wish to endanger Ottoman sovereignty in Egypt and by so doing directly antagonize other European powers with vested interests in Egypt. British forces therefore operated in the name of the Egyptian khedive. Khedive Tawfiq, the Egyptian ruler of Egypt at the time, called Muhammad Sherif to form a cabinet. Sherif was the force behind the interrupted reform of local councils in 1881. He asked French-educated Husayn Fakhri to take charge of judicial affairs. In 1881, when Fakhri was minister of justice, he had already organized a committee drafting plans for French-style 36

conquest

courts for adjudicating conflicts among Egyptians. However, the ‘Urabi revolution and the war of occupation that followed it sidetracked the project. Khedive Tawfiq instructed Sherif to inquire into “the progress . . . in justice as the first step toward developing liberal institutions . . . compatible with Egypt’s present social and political conditions.”59 In December of 1882, Fakhri submitted a memo to the Council of Ministers in which he outlined the existing councils and the operative decrees issued by these forums. Fakhri argued that these councils operated without sufficient legislation to guide them. Their rulings were consequently the product of the administrators’ discretion and not of a given set of rules. The councils were ineffective and their rulings took many years to be issued. As for Qadri’s attempt in 1881 to codify the shari‘a, Fakhri stated: Is it possible to apply the codified shari‘a to the inhabitants given that their customs and dealings at present, whether with one another or with Europeans, are governed by the Civil Code that settles disputes over sale, rent, ownership, and the like? And if it is said that civil law should be in accordance with the shari‘a, maybe it should also be said that judgments in penal matters, procedure, and handling of cases should be in accordance with the shari‘a. In such a case, there are so many difficulties, in need of no explanation, given the current state among the inhabitants. It is more appropriate to take existent Egyptian laws operative in the mixed courts, to form a commission to introduce amendments in these laws, . . . and after the approval of the Council of Ministers to apply them for reforming these councils.60

More concretely, Fakhri suggested that any reform should institute a judiciary, which would become the only body authorized to handle cases. In “civilized” countries, he explained, boundaries had been drawn between administrative and judicial powers in order to prevent their intervention in each other’s work. This, in turn, guaranteed the fairness of the judiciary and its ability to check administrators’ decisions and actions. Egyptian judges, he contended, were to be selected from among those who had studied in Europe. In addition, some European judges who were members of the bench in the mixed courts should be transferred to the national courts.61 As for the existing shari‘a courts, which exercised power over civil, criminal, and personal matters, Fakhri argued that they could not 37

history

continue to operate, as this would result in dual systems of law. Such duality was the main characteristic of the pre-reform system, which had yet to adopt the imperative that there should be a single unified system of law. Instead of a dual system, Fakhri proposed to confine the operation of the shari‘a courts to “personal” matters, which he defined as matters relating to divorce, marriage, and inheritance.62 The national courts were to adjudicate civil and penal matters. It is unnecessary to recount the various diplomatic and political struggles that led to the establishment of the national courts in Egypt, as these have been extensively studied.63 Suffice it to mention that the British authorities sought the aid and advice of Nubar Pasha, the mastermind behind the mixed courts of 1875 who would hold various ministerial positions in the future. Nubar was the preferred judicial reform expert, owing to his ability to correct “misconceptions” that might have been aired by Fakhri’s French legal aide, Octave Borelli. Nubar was alarmed that Borelli had pushed for the blanket adoption of French law without consideration of its potential effects on Egyptian society. Meanwhile, Lord Dufferin, the British agent in Egypt, insisted that any new laws should be made “as congenial to the habits and prejudices of the people as circumstances permitted.”64 Peter Benson Maxwell, who held an English law degree and had been a judge in India, was appointed procurer-general in April 1883. Opposed to codification, he preferred to let judges use “their own . . . common sense to evolve a body of law.”65 Dufferin rejected the plan, dismissing it as “absurd, as Egypt needed a strict definite code, though with a simple procedure.”66 Nubar Pasha insisted that the mixed courts model should be adopted, arguing in its defense that its procedure provided for the judgment of officials by regular members of the professional branch. His reform plan promised to bring the separation of powers model to a legal system lacking separate branches of government. The establishment of new national courts was sanctioned in a code of June 14, 1883. In December 1883, their opening session was held. A commission of Italian and Egyptian jurists appointed by the khedive drafted civil, commercial, penal, and procedural codes. In 1884 the national courts began their work in Lower Egypt through eight first-instance courts and a court of appeal in Cairo. Upper Egypt was drawn into the system five 38

conquest

years later in 1889. The previous councils continued to operate in the area until the unification of the entire system. Throughout the eighties, Belgian and Dutch judges were appointed to the bench by the Ministry of Justice, in consultation with the British judicial advisor. They were gradually replaced in the nineties by British judges. By the 1920s, eight of the ten European judges on the National Court of Appeal were British, in addition to six of the seven in the lower courts.67 Together with the establishment of the national courts, new penal and civil codes were enacted. The Penal Code was promulgated on November 13, 1883. The code was to be implemented within thirty days of the opening of each national court in the various districts of Egypt. The Penal Code, wrote jurist Muhammad Labib ‘Atiyya in The Golden Book, was enacted in a manner that was “detached from the past.”68 The Egyptian Penal Code was generally modeled after the French Penal Code of 1810. The exceptions, ‘Atiyya argued, were necessary given the difference between the “Egyptian civilization and mentality, and Western civilization and mentality, more specifically the French one.”69 Gradually, however, it became apparent that “Western civility did not contradict Egyptian civility, and that Egyptian mentality did not resist, nor negate, the criminal justice (al-‘adalah al-jina’iyya) informing the French Penal Code.”70 Furthermore, ‘Atiyya continued, European legislation was “closer to us than the legislative mixture prevailing prior to the 1883 code characterized by inconsistency and twisted principles of justice, which repelled the sensibilities of a nation with a history and civilization such as the Egyptian nation.”71 Of the previous system, ‘Atiyya wrote that it lacked a code with clear texts defining crimes and stipulating punishments. In addition, there were no institutions entrusted with the administration of punishment or its execution. Instead, there were multiple forms of shari‘a law, decrees issued by rulers for various occasions. These did not constitute a unified framework for criminal justice or for the means of achieving it. The definition of crime and the measure of punishment, he added, were left to the whims of administrative governors. This, ‘Attiyya argued, was the state of affairs prior to the enactment of the 1883 Penal Code. With the code, there was no longer punishment without a clear text, and equality before the law prevailed. Egyptians rec39

history

ognized the justice inherent in the new system, which was complemented by a new code of criminal procedure. Furthermore, the new codification did not attempt to contradict the shari‘a but stated at the very outset that the shari‘a’s regulation would remain sacred.72 ‘Atiyya also contended that the 1810 French Penal Code, which constituted the basis for the Egyptian Penal Code, had many defects because it relied on ancient principles, and hence the Egyptian Penal Code suffered from the same defects. As years passed, the legislature amended the law as it saw fit. These frequent amendments diminished the code’s coherence. This ultimately resulted in the enactment of the 1904 Egyptian Penal Code, which, while following the principles of the 1883 Penal Code, introduced a number of changes, such as doing away with the punishments of life imprisonment and exile. ‘Atiyya’s narrative is one about a present departing from the past by constantly improving and adapting itself to the realities of Egypt as well as further systematizing itself. The reforms of 1883, he argued, were an important step in establishing a new system that improved and was perfected over the years. Why did ‘Atiyya and other members of the new legal profession claim to reject the past rather than reform what already existed? What was the appeal of the new system? Egyptian jurist Tariq al-Bishri describes the process of the wholesale adoption of a European-style legal system as mimicking the West (muhakat al-gharb). Al-Bishri argues that both European coercion and the fascination of the Egyptian elite with European thought and practice affected this mimicry. Al-Bishri questions the description of these legal innovations as “reforms” (islah). Reform, he argues, means ending corruption and continuing with an improved tradition. What took place in Egypt was not reform but radical change.73 Rudolph Peters, another historian of Egyptian law, argues that the reforms, or the wholesale adoption of foreign law in Egypt from 1883, must be attributed to strong foreign pressure.74 In contrast, in The Rule of Law in the Arab World, Nathan Brown argues that the reforms of the late nineteenth century should not be attributed to British imperialism. For Brown, imperialism and European penetration certainly shaped the development of the legal system, and the mixed courts could not have existed without them. Yet Brown insists that these courts were not “imposed” on Egypt but are more accurately seen as an attempt 40

conquest

to contain European influence. The interest in codified law, he maintains, was generated domestically. Elements of liberalism existed in the reforms, but this liberalism involved the regulation of state authority by courts and codification to render it more effective and efficient. Reforms were integral to the efforts of the Egyptian elite to consolidate its power over the state and to resist European penetration.75 Both Brown’s and al-Bishri’s accounts present the law as a product of history, whether the law is a series of imperial colonial interventions or the actions of the Egyptian elite struggling to consolidate their power over the occupied state. Both depict law as a passive object, which is reconfigured as it encounters history. In their analyses, neither considers the constitutive role of legal reforms and lawyers,76 or the histories authorized by legal actors and texts.77 In this way, both accounts of legal reform become the founding myth78 and the power base79 for the new history-authoring legal profession. What these accounts fail to capture is the work of the legal profession, which created a “juridical rupture” while authoring a new positivist conception of law that departed from the legal order preceding it. My point is that it was the circulation of the labor of the legal profession that produced a conception of positive law. This new conception was not simply borrowed from the West but was primarily the product of a series of “juridical performances” in Egypt. This is not to suggest that we must privilege Egyptian over European actors, as Brown contends;80 in chapter 6, I will argue that the specific division of juridical labor that existed between Egyptians and British produced political features critical to the colonial state. Both European and Egyptian forces operated upon a colonially reconfigured terrain of life and produced a law that was neither unique to Egypt nor simply a copy of European law that lacked operations specific to its site. Whereas the question for many historians has been why the Egyptian elite was obsessed with superior Western civilization, I attempt here to write the history of reform without reproducing this superiority. And following Frederick Cooper, I also aim to avoid writing the story of reform as a steady advance against the British Empire.81 Is it possible to write a story of colonial law in Egypt without reiterating that one civilization conceived of itself as superior to another that in turn accepted the supremacy of the former and performed its inferiority? Or is it, alternatively, neces41

history

sary to write the story of reform as always in resistance to empire? Might it be possible to write the history of Egyptian lawyers, and the law they partially produced, not merely as a story of fascination with the Western legal system or resistance to it? More specifically, the legal historiography of Egypt takes for granted the declared project of the reformers—that of establishing a unified system of law, instituting comprehensive codes, and bringing about a separation of powers—and then asks about the reformers’ intentions.82 Would it be possible instead to question whether such changes were brought about at all, as well as to query the idea of a transformative modern power, and to investigate instead how these arguments about change were put forward? In order to understand late nineteenth-century legal reforms, the focus should be redirected to the promise they held for the very formation of a juridical field. Many of the reformers received their legal education in Europe. They advocated for the creation of a juridical field because it alone would produce the necessary conditions under which their European legal education would have authority.83 Khedive Isma‘il had sent missions of students to Europe in the 1860s and 1870s, many of whom enrolled in legal programs.84 When they returned to Egypt, they occupied governmental positions but could not practice law as judges or lawyers because the existent legal system did not recognize their skills. These students may have been inspired by European constitutional ideals. The appeal of the latter, however, did not rest on their being European and reflective of certain modern principles. The problem with such an argument is that it grants (European) ideals a power that they did not necessarily have. Instead of focusing on European normative power, and thus reproducing its supposed—indeed, real—appeal for the rest of the world, it may be that legal reforms, and principally their promise for an institutional separation of powers, produced a juridical field of power for the new class of law students in Egypt. These students, prior to the reform era, had returned to Egypt in order to occupy governmental positions. The legal training they had gained in Europe failed to make them lawyers or judges under the old system, and they found themselves excluded from the older legal profession.85 The reforms of the late nineteenth century provided European-­educated law students with a new space in which to assert their independence from 42

conquest

the administrative cadre of the state, as well as the religious ‘ulama’. Through these reforms, they redefined the authoritative knowledge central to the juridical field, the boundaries of this field, and those eligible to practice law in it.86 These reforms also enabled them to imagine a state in which they could establish their distinct capital—professional legal skills and knowledge—and assert its centrality to law in Egypt. Husayn Fakhri, who was the minister of justice at the time the reforms were launched in 1883, exemplifies this class of lawyers. Fakhri, unlike others, did not occupy a low position in the hierarchy of bureaucracy; he became a minister. He observed that his expertise and training did not qualify as legal knowledge in the system that existed prior to 1883. As Ahmad Fathi Zaghlul and many others complained, under the old system of law, administrators were the superior party, and legal knowledge and training, as Zaghlul knew it from Europe, was not recognized.87 Prior to the establishment of the national courts, and in addition to the qadis of the shari‘a courts, the legal profession consisted of “agents” (wukala’), who acted on behalf of clients in the councils. They wrote statements of claim on behalf of their clients directed at influencing the ruling of the judges in the councils. In addition to these agents there was another class of legal actors, ‘ardihalgis, who drafted the statements of claim. Finally, there were scribes, who assisted illiterate Egyptians in legal matters. Along with these groups of legal professionals there were council judges, who for the most part were administrators who had access to the body of statute law issued by the rulers of Egypt. They were directly involved in the government of people through the resolution of legal conflicts.88 There are no studies detailing the practices of the legal profession prior to 1883.89 Nonetheless, it may be assumed that under the old system, Egyptians with a European legal education were excluded from the legal profession and had to occupy governmental positions. Meanwhile, administrators, governors, and qadis declared, practiced, and executed the law. It is within this context that we can understand the meaning of late nineteenth-century rejections of the legal past. The rejection of the past was necessary to the lawyers’ quest to enforce their claim to a juridico-political monopoly over the law.90 In the process, they enacted the authority of their own law, which no longer derived its 43

history

authority from the Islamic and Ottoman legal tradition but established itself in contradistinction to that past. This shift reflected a transformation in the temporal meanings of authority and a solidification of legal coloniality. Egypt witnessed the loss of authority as embedded in a tradition and the rise of another authority, now embedded in the present legal order and obedience to it. legal posit i v ism a nd pr esen t ism In her essay “What Is Authority?” in Between Past and Future, Hannah Arendt argues that authority has vanished from the modern world. Distinct from force, power, and violence, authority, in Arendt’s analysis, is anchored in the presence of the past.91 “Authority, resting on a foundation in the past as its unshaken cornerstone, gave the world the permanence and durability which human beings need precisely because they are mortals. . . . Its loss is tantamount to the loss of the groundwork of the world.”92 The past has been endangered by the loss of tradition, resulting in the loss of “the thread which safely guided us through the vast realms of the past, but this thread was also the chain fettering each successive generation to a predetermined aspect of the past.”93 Arendt is clear that moderns have not lost the past, because it is not synonymous with tradition. Rather, with the loss of a securely anchored tradition “the whole dimension of the past has been endangered.” Tradition secured the remembrance of the past, and with its demise “we are in danger of forgetting, and such oblivion—quite apart from the contents themselves that could be lost—would mean, humanly speaking, we would deprive ourselves of one dimension, the dimension of depth in human existence.”94 In her discussion of Roman politics and history, she adds that the past in which authority had its roots “was no less in the actual life of the city than the power and strength of the living.”95 Thus precedents and the deeds of the ancestors were always binding and, she writes, “anything that happened was always transformed into an example,” adding “to every single moment the whole weight of the past.”96 Following Arendt’s insights, the discussion of the fate of the past in Egyptian colonial law may reveal that with the loss of the Ottoman and Islamic legal traditions, Egyptian law could no longer operate as an 44

conquest

authority.97 Arendt’s argument is useful in articulating what is at stake in the temporal politics of colonial Egypt. Her argument helps to theorize the demise of authority as a tradition-mediated mode of binding. But with this demise, a new, self-proclaimed legal authority arose. Not a mode of binding but of compelling obedience, this new legal authority was peculiarly positivistic and presentist; its coloniality derived from these two characteristics. One major site where this authority was produced was a specific genre of legal writing: the positive law textbook. This genre performed and enacted for generations of lawyers the province of positive jurisprudence and its peculiar authority. Crucial about these textbooks are the philosophy of law constitutive of the genre (positivism), its temporal dimensions (presentism), and its power operations (coloniality). These characteristics show that positive law was never posited in a particular moment in Egypt but was a product of temporal performances that enacted its colonial authority. Positivism Late nineteenth-century Egypt witnessed the birth of a genre of law textbooks devoted to the study of the general principles of law. Dozens of books put forward a theory of positive law and described the Egyptian legal system from its perspective. They differed in their definition of positive law and in their reliance on analytical and historical jurisprudence, but all advanced a series of abstract principles from which they deduced the meaning of the law in occupied Egypt in the late nineteenth century. The deduction of legalities from abstract principles endowed the former with the characteristics of unification, coherence, and order. Supplements to these textbooks were specialized textbooks on the subdoctrines of law, including criminal law, civil law, and procedure. Here, too, general principles were laid out at the beginning of each textbook, and from them specific applications of the law were deduced. These supplemental specialized textbooks contributed to the production of a law that broke thoroughly with the pre-reform legal system. Textbooks in Egypt were authored for the most part by judges and legal instructors, along with a few prominent lawyers. These authors, members of the new legal profession, granted themselves the authority to tease out the general principles 45

history

underlying law and to impart a sense of cohesion through laying out the principles by which law was organized.98 Just as with historical-legal writings, however, the story was not one of a complete and radical break as of 1883. Indeed, together with the gradual filtering out of old-time legal professionals, textbooks were steadily gaining a unified outlook. The first law textbooks published after the reforms of 1883 reveal that the pre-reform era had yet to be fully transformed into a past against which to celebrate the present reforms. Pre- and post-reform legal realities were mingled in a present that had yet to detach itself fully from the past. More specifically, the authors of some textbooks advanced a theory of positive law for the national courts while at the same time referencing the shari‘a—a comprehensive system of law that pre-dated the reforms—to elaborate on the errors in positive law. Paradoxically, this work resulted in the further demise of the shari‘a and the pre-reform legal system. The act of comparing made positive law the grounds for comparison, turning the shari‘a into a comparative legal system. The most vivid example of such texts is that written by Muhammad Afandi Ra’fat. Ra’fat taught jurisprudence in the French section of the Khedival School of Law. In 1897–98 he published a book titled Usul ­al-Qawanin (The Sources of the Laws).99 Of the book, he wrote that it constituted a compendium of his lectures at the School of Law, rewritten in Arabic. Ra’fat hoped that students and lawyers would read the book in their “noble Arabic language” and thereby gain a better understanding of the principles organizing positive law. Ra’fat’s book, to my knowledge, was the first book in the tradition of textbooks devoted to the science of positive law. Unlike future textbooks published in the first decades of the twentieth century, Ra’fat employed the shari‘a to criticize theories of positive law. In a letter to the author, Qasim Amin, a renowned Muslim reformer, jurist, and judge on the Court of Appeal, praised the book as the first written in Arabic to lay down the principles of law. The book, Amin added, filled a gap by explaining the basic knowledge required of those who work within the law. It constituted a reference work for any person who wished to understand the principles of the science of law in their entirety and the general basis on which contemporary society was grounded. Amin found particularly appealing the 46

conquest

discussion of the shari‘a, which, he explained, clarified that the shari‘a, too, advocated justice and the general good (manfa‘a ‘amma).100 Ra’fat’s book has no table of contents. It is divided into three parts: the first, “On Law, Right, and Duty”; the second and shortest, “On External Law”; and the third, “On Internal General Law.” Each part is divided into sections and each section into chapters. The book is composed of a series of lengthy paragraphs, with no commas or periods dividing them into shorter sentences. The part titled “On Law, Right, and Duty” includes a very brief discussion of natural law, in addition to other European theories of law and the shari‘a. The references are, by and large, to Jeremy Bentham and Jean-Jacques Rousseau, with a bias toward the former. On the second page of the book, Ra’fat defined positive (wad‘i) law as “the sum of orders and prohibitions enacted by the author/creator (wadi‘) in order to coerce people into obeying them. It must be composed of just principles bringing about justice among individuals, as well as material and moral benefits.”101 He took positive law in English (droit positif in French) to mean a set of rules that were posited by an author. The adjective wad‘i (positive), he explained, originated from the verb wada‘a (to posit), indicating the action of positing or authoring. The noun wadi‘ refers to the subject who posits, makes, creates, or authors. In other words, Ra’fat conceived of positive law as enacted law, as opposed to divine law or a law that was never fully posited but constantly transmitted and rearticulated. Positive law was different from the shari‘a. Most Europeans, Ra’fat argued critically, contended that the basis of law is reason and need. Muslims, on the other hand, rejected the idea of absolute universal reason. Muslim jurists, he explained, examined specific texts while applying their reason together with their long education, training, and experience in various forms of knowledge. Jurists extracted rulings from texts (nusus) constituting evidence (adilla) as well as rulings. In this respect, the shari‘a differed considerably from positive law. One of the main characteristics of positive law was the distinction drawn between law and fact, the ideal and the material.102 The shari‘a tradition, however, as Ra’fat depicted it, did not ground itself on a distinction between rulings (law) and evidence (facts). In one methodological question, Ra’fat asked how one extrapolates the bases of the science of law. The conventional answer of the time was 47

history

that legal rules are extrapolated from broad principles rooted in reason. Against this wisdom, Ra’fat insisted that general principles should be devised on the basis of detailed observation, by investigating incidents and circumstances and devising observation-based principles. He compared arguments calling for the deduction of law from general principles to other arguments that find humans to be different from animals because the former use their hands to feed themselves. Ra’fat explained that further examination of animals’ behavior would lead observers to the realization that some animals shared this attribute with humans. The difference would then appear to be that animals, unlike humans, lack the ability to speak. Similarly, a lawyer who works to win a case normally does so by researching law books rather than examining the facts of the matter. Instead, the lawyer should examine the facts, revisiting them again and again until he reaches the truth.103 Critical of the theory and understanding of positive law, Ra’fat argued against a series of typical positivist distinctions between fact and law, evidence and ruling, material and ideal. In his discussion of morality, he described a positivist approach to morality separated from law. Morality, he wrote, is composed of a series of obligations that the individual has to his Creator and to himself. The prohibition against killing oneself is a moral duty; likewise, entertaining thoughts of committing a crime is a personal matter in which the law should not interfere. Ra’fat rejected this positivist approach and argued that the law must interfere in matters of morality.104 The title of Ra’fat’s text, The Sources of the Laws, a modification of the title commonly given to Islamic jurisprudence books, Usul al-Fiqh (The Sources of Islamic Jurisprudence), testifies to the two temporalities Ra’fat occupied in 1894. His explication of the general foundations of law, in which he relied mainly on positive theory of the law while adding a discussion of the shari‘a, is indicative of these two temporalities. The first was a time that had yet to become time past, in which the shari‘a was central in shaping conceptions of law and government. The second was the yet-to-become time present, in which the shari‘a was only a sub-branch of legal education, the law for questions of personal status only. The tragedy of Ra’fat’s text lies in its performance of the demise of the shari‘a, 48

conquest

which it vigorously defended, through its establishment of positive law as the ground with respect to which to compare the shari‘a. The reference to the shari‘a in this work on the principles of law is a trace of a system of law that was in the process of becoming a dated concept. Ra’fat’s book constituted one of the last attempts to hold on to the shari‘a as a holistic system of law. Simultaneously, however, his book transformed the shari‘a into a comparative system used to shed light on the limitations of the existent system of law. Another textbook, by Muhammad Qadri Pasha, signals a similar transformation of the shari‘a into a comparative system of law. Qadri was minister of justice in 1881. As discussed above, in response to calls to reform the precolonial councils, he proposed and initiated the codification of the shari‘a. He argued that the problem with the councils was their lack of coherent legislation to guide the judges. But his attempts to codify the shari‘a were politically rejected. At some point in the 1880s, he wrote a book titled Guidebook for the Perplexed on Knowing the Conditions of the Human.105 It consists of 941 articles organized into 13 short parts by subject, including ownership, contracts, sale, rent, agriculture, companies, and agency. Each short book is divided into chapters and sometimes subchapters. The articles are written in an expository style and state the rules for each subject; occasional footnotes explain the source of each rule. The book has no introduction or any text preceding the list of rules. At the end of the book is a table of contents for the different short books, chapters, and subchapters. The manuscript was not published during Qadri’s lifetime, and we lack information on the exact dates of its writing. Upon his death, Qadri’s family sent the manuscript to the minister of education, ‘Ali Mubarak, hoping it might be published and used in the School of Law for instruction in the shari‘a. Mubarak approved the book for publication in 1889, noting that its structure was similar to the organization of codes. The Council of Ministers and Mubarak agreed to buy the copyrights to the book but requested that Mufti Shaykh Hassuna al-Nawawi verify and approve its content. Al-Nawawi was the shari‘a instructor in the School of Law and in Dar al-‘Ulum (the school that prepared shari‘a judges and advocates). He reviewed the manuscript, introduced some corrections, and sent the book back to the Ministry of Education. In September 1890, Mubarak issued a 49

history

decision to print 1,500 copies of the book bound in the European style.106 There is evidence that at least a second edition of the book was published. With Qadri’s book, the teaching of the shari‘a in the School of Law came to resemble the teaching of other branches of law. The shari‘a, too, came to be taught as a series of rules and principles that lacked context, depth, history, and elaboration.107 The transformation of the shari‘a into a system of comparative law, in this case civil law, evolved further. When the shari‘a became a case study for comparative law, the codes to which the shari‘a was compared came to be treated as the law of Egypt. Unlike Ra’fat’s textbook, later textbooks lacked a systematic critique of positive law. Of the subject matter of his Muqaddimat al-qawanin (Introduction to the Laws), published in 1913, Salama ‘Abdullah wrote that it consisted in “the search for general legal principles upon which positive laws were instituted. The latter are the laws that are posited by governments aimed at ordering the social body and defining the relationship of one with another.”108 General principles were “all principles that are specific to one nation, or one kingdom.” And positive law was a system of law “excluding divine, natural and behavioral laws.”109 In a series of positivist distinctions that separated law from the social, the factual, the moral, and the political, ‘Abdullah distinguished between what he termed “law in the metaphorical sense” and “the law.” The first included the laws of nature, divine decrees, behavioral laws, moral laws, natural laws, and economic laws.110 ‘Abdullah’s book, to my knowledge, was the first text on jurisprudence in the Arabic language to be written from a perspective of pure positive law. Another major text on jurisprudence was published in 1923. Two members of the legal profession wrote it in collaboration: Muhammad Kamil Mursi Bayk, who held a doctorate in jurisprudence and taught at the School of Law, and Sayyid Mustafa Bayk, who was a judge in the national courts and a deputy to the prosecutor-in-chief.111 Mursi and Mustafa defined the law as a series of rules that the members of the social body are obliged to obey. The law, they argued, is necessary for regulating the relationships between the human members of the social body. Political institutions are entrusted with creating the conditions for the coexistence of human beings. In order to be able to execute this task, these institu50

conquest

tions issue a series of rules establishing the rights and duties of humans. In the absence of such rules, order would give way to chaos and human society would regress. These rules are general, fixed, and accompanied by the threat of force in the event of their violation. Mursi and Mustafa recognized that this definition of the law restricted it to the rules of the sovereign. Known as the analytical school of jurisprudence, this approach to the law was put forward in 1832 by the English jurist John Austin, who defined the law as a series of commands declared by the sovereign and backed by force.112 His theory was later modified, and political authorities assumed the role of issuing commands. Mursi and Mustafa cited the arguments critical of analytical jurisprudence made by the German school of historical jurisprudence, which, according to the authors, maintained that the definition of the law as the command of the sovereign erred in its failure to consider that laws were obeyed long before sovereigns and governments came to rule a specific society. Furthermore, analytical jurisprudence did not take into account the historical life of the law, which was rooted in customs and habits and therefore exceeded the commands of the government.113 Mursi and Mustafa chose to synthesize the two schools. They were not exceptional in this attempt; a similar approach was taken in most textbooks on jurisprudence. The authors argued that the law is not only the command of the political sovereign but also consists of court rulings, decrees, customs, and the shari‘a. They suggested that “the law is a general principle aimed at ordering people’s external actions, implemented with the knowledge of the political ruling authority.”114 Positive law, then, included various legal forms of ordering, which the government and its officials tolerated.115 Mursi and Mustafa’s definition of positive law as inclusive of all forms of legal ordering recognized by the government anticipated by many years H. L. A. Hart’s theory of positive law as articulated in The Concept of Law, published in 1961.116 In this book, Hart locates the foundation of the modern legal system in the practices of officials, constituted by the acceptance and use of secondary rules of recognition that identify the law as the primary rules to which citizens must conform. The primary rules consist of customs, habits, and other forms of legal ordering. It is only 51

history

with the secondary rules of recognition, however, as declared and practiced by government officials, that a legal system can be said to exist. The positive law theory that Mursi and Mustafa put forward did not speak of primary and secondary rules, but their theory conceptualized a law that was either stated by officials or tolerated by them. This approach departed from the previous definition of positive law, as rules directly posited by the sovereign or the government. Instead, Mursi and Mustafa suggested that positive law is constituted by “a series of legal principles which exist in effect and which are implemented in a specific state and at a specific time, regardless of the nature of these principles: constitutional, decrees, customs, rules.”117 The test is whether or not the legalities “exist” in effect; their existence can only be verified by the recognition of the government. This empiricist definition of positive law was taken up in other textbooks. Ahmad Safwat, a judge in the national courts and instructor in the School of Law, developed Mursi and Mustafa’s definition. In his textbook, Muqaddimat al-qanun (Introduction to the Law), he, too, disagreed with the argument that positive law is posited directly by the government, arguing instead that positive law is the law that exists in effect and contending as well that the government had to recognize, or at least not negate, these orders.118 When the law came to be defined as the legalities that exist in effect, it also became possible to speak of a restricted legal system that can be observed as the law. Turning the law into an observable form of order made it possible to delineate its reach and decide on its boundaries. This empiricist theory of positive law, which defined law by its ability to be concretely observed, enabled the demarcation of the law from nonlaw, the legal from the factual, and the juridical from the social. Positivist theory provided the law with a body, a history, and a depth. This body could then be said to have emerged through its demarcation in opposition to the nonlegal and the past. The province of this demarcated law was a province of rules to be obeyed. Egyptian lawyers offered different answers to the question “What is positive law?” or “What is the province of law?” but they all discussed the question in terms of the rules or norms that should be obeyed. Whether these were rules enacted by the sovereign or other rules that existed in ef52

conquest

fect, the criterion for their legality was obedience. It is in this sense that a new legal authority came to arise in Egypt, one that was not a mode of binding the living to the dead but a relation of obedience to the living legal order. Or in Weberian terms, this authority entailed obedience as owed to the legally established impersonal order and the established legal norms, which can either be imposed or agreed upon.119 This new understanding of authority no longer grounded itself in the past but rather in the established legal order, whose validity was evaluated in the present. Presentism There were other analytical tools employed by positivist legal thinking that facilitated the detachment from the past it enacted and led to presentism. One such tool was abstraction. Abstraction is not unique to positive law; in fact, the Islamic genre of legal writing, usul al-fiqh (the sources of law), relied heavily on abstraction and systematization.120 It would be difficult to imagine any legal system that lacked such techniques mediating the relationship between practices and legal concepts, facts and principles.121 But the abstraction and systematization that characterized positive law textbooks differed in its temporality, which had lost its traditional grounds. In his book Muqaddimat al-qanun (Introduction to the Law), Ahmad Safwat wrote that his aim was to explain the principles of jurisprudential science, which would guide the study of the law in its details.122 In their introduction, Mursi and Mustafa defined the science of jurisprudence similarly: [It is] aimed at investigating the general principles, which constitute the basis for positive law[;] this science is confined to the investigation of general principles shared by various systems of law. It does not examine detailed principles that are specific to each legal system. This is because there exist general principles that unite all nations’ laws. For example, all laws define ownership rights, the relationship between the owner and the object he owns, the means of transferring ownership[,] . . . etc. British legal scholar [Erskine] Holland compared the relationship between jurisprudence and the laws themselves to the relationship of grammar to languages. All languages have plural forms and prepositions, verbs and subjects, etc. But each language has its own specific details and modes to

53

history

express the common forms. Despite these differences, there are still general principles that unite all languages.123

Many other textbooks repeated this theme of similarity between grammar and jurisprudence. Most textbooks on jurisprudence came to be organized along lines of deduction; principles stated at the outset and organizing the structure of the book gave the law analyzed therein the appearance of an ordered system. The statement of abstract principles, together with the deduction of all details from them, produced a law that took on the qualities of the principles that framed it: abstraction, generality, and coherence.124 It also produced a law that could be viewed diachronically. The equation between grammar and jurisprudence transformed jurisprudence into a system that consists in horizontal relationships between words and sentences. Jurisprudence, understood in this positivist way, occupies itself less with interpreting words and signs in the light of other external references, or other texts from the past, and more with the text as it is given and with its own internal constituents. Whereas abstraction and coherence are perhaps the aspiration of many legal traditions, including the Islamic legal tradition, what marked Egyptian legal positivism was its diachronic temporality and perspective. The examination of a few textbooks should clarify this point: I shall first consider the labor of abstraction and then examine its temporal dimensions. The form of the textbook contributed to the abstraction. The table of contents guiding the reader into discrete chapters, the clear division into chapters and subchapters, imparts a sense of order to the book, which can then claim its own coherence. These law textbooks, to be sure, were part of a larger movement of change within the book industry, a change that came to be evaluated normatively. A good example is an article in the periodical Al-Hilal that surveyed the different forces operative in the Arab renaissance, including print and schools. The article recognizes the practice of book writing in the Islamic tradition but describes it as incoherent, as mixing up facts and narrating them without classification or order: “They [the authors] continue to write without parts or chapters and connect one subject with another without alerting the reader to the introduction of a new line or a specific subtitle.”125 Most indicative of this lack of coherence 54

conquest

is that the books’ titles did not convey their actual contents. The specific descriptions of books in the premodern era is significant, but equally significant is the radical othering of an existing tradition. Uday Mehta wrote of John Stuart Mill, who used similar descriptions when writing about the order of books in India, that his strategy served to distance and to confine that other tradition.126 In Egypt, this strategy also served to historicize eras and to introduce a rupture in the historical flow of time—between the books of the past and the books of today. This logic of abstraction did not organize only general textbooks on jurisprudence but other law textbooks as well. Amin Ifram al-Bustani, the author of a textbook published in 1894 on criminal law, opened his book with a section titled “General Principles.” The first part of the book included chapters on the government’s authority to punish, categories of crime, kinds of punishment, attempts at committing crimes, repeat offenders, the criminal, association, and defenses. The second part included chapters on actions criminalized under the penal code. These included actions endangering the security of the government, bribery, the neglecting of duties by officials, the mistreating of individuals by officials, resisting the government, and destroying public buildings.127 Less concerned with crimes of violence, robbery, arson, and theft, this textbook was devoted, for the most part, to the relationship between officials and individuals. This could be explained by the fact that al-Bustani, who was a lawyer before the Court of Appeal, came from the pre-reform era and continued to operate under the new system. His selection of the crimes covered in the book reflects the concerns of the khedival legal system, which used the penal system to regulate administrators’ actions. Like Ra’fat, al-Bustani was rooted in two temporalities: he organized his book along the lines of the 1883 Penal Code, but the crimes he chose to discuss were central to the pre-reform criminal justice system. Despite its dual temporality, al-Bustani’s book covers a series of rules, as put forward by the penal codes and explained by the courts or in other European-style textbooks. He first states the rules of the penal codes and then offers an interpretation of them. In this way, the penal code became the framework for understanding the reality of penal law. Judges, together with authors of textbooks, became the authoritative voices interpreting the 55

history

law. The book created a sense that there was a unified penal code, with general principles applicable to all. It also reinforced the impression that members of the legal profession carried out its work. Al-Bustani’s textbook initiated the work of systematization in the field of criminal law, and subsequent textbooks continued the work. One example is a textbook by Ahmad Amin Bayk, an instructor in the School of Law.128 The first edition of the book was published in 1914; having gone out of print, the book was reprinted in a second edition in 1924. The second edition contains a very brief preface explaining the reason for the second publication, followed by a detailed table of contents over twentyone pages long. Next is a list of books and journals that the author refers to in his footnotes, which is composed of two sections. The first contains journals and books in French and English, including the French edition of the Collection of Circulars of the Committee of Judicial Surveillance (Comité de Surveillance Judiciaire).129 The books include works by such authors as Garraud (Traité théorique et pratique du droit pénal français),130 Garçon (Code pénal annoté), Chauveau and Hélie (Théorie du code pénal), Blanche (Études sur le code pénal), Barbier (Code expliqué de la presse), Nypels and Sarvais (Code pénal belge interprété), Kenny (Outlines of Criminal Law), Harris (Criminal Law), Gour (The Penal Law of India), and Goadby (Commentary on Egyptian Criminal Law). The second section contains a list of textbooks in Arabic by authors such as Muhammad Kamil Mursi (Clarifying the Penal Code: The General Part), Ibrahim Afandi Jamal (Egyptian National Judiciary), and ‘Abd alHamid Badawi Pasha (Lectures in Comparative Penal Code). In addition, the list included such publications and journals as the Official Bulletin of the Native Tribunals (a collection of court rulings), Al-Huquq, Al-Qada’, and Al-Mahakim. The book proceeds by detailing the various offenses listed in the penal codes and clarifying each of them. For example, one chapter of the book is devoted to offenses and crimes perpetrated against individuals. The first section of this chapter delineates acts of killing, injuring, and beating. The criminal law that this textbook explicates—and in the process also performs—is composed of the rules of the penal codes. The book contains no mention of any of the other penalizing mechanisms that I discuss in 56

conquest

chapters 4 and 6. Administrative agricultural penalizing commissions, village chiefs (‘umdas) functioning as executors of the law and judges, engineers endowed with prosecuting powers, administrative commissions for notorious criminals, martial courts for the criminalization of political dissent—all these institutions, practices, and actors were expelled from this and other textbooks on criminal law. Instead this textbook presents the reader with a self-referential legal narrative that constitutes the law it supposedly describes. Amin’s textbook locates the authority interpreting penal code articles largely in textbooks. As David Sugarman argues, in reference to the tradition of common law textbooks, the new textbook tradition was a kind of “natural code,” a new form of codification.131 Occasionally, Amin references the Official Bulletin of the Native Tribunals. More often than not, however, in expounding what constitutes an injurious act, for instance, and the elements of the offense/ crime, the author refers to other textbooks; in the section on murder, for example, he refers mainly to the French jurists Garçon, Chauveau, and Hélie, in addition to Garraud, who is the single most referenced jurist. Occasionally he references decisions of the courts published in the various journals in Arabic. In all, in this section the author makes eighty-five references to textbooks and nineteen to Egyptian court rulings. Amin’s book is perhaps the best example of the temporality of this self-referential legal system. The minimal citation of court rulings and heavy reliance on the code and on other textbooks that similarly relied on codification are most indicative of a law that came to be constituted diachronically. The dynamics of practice present in court rulings did not find a place in the textbook genre; instead, by referencing themselves, textbooks enacted their own authority to interpret the law.132 As a genre, textbooks became a central source for interpreting and establishing the law. They had two main effects. By focusing on the 1883 reforms—codification and the introduction of the national courts—textbooks authored a law that was confined to these reforms. In addition to the textbooks on general jurisprudence and criminal law discussed above, there were other textbooks on civil law as well as criminal and civil procedures.133 They all confined their analysis to the civil, penal, criminal, and civil procedure codes. They also relied on the code that established 57

history

and organized the national courts. Textbooks, then, produced a law in the image of the new codes and the national courts. In so doing, the authors of textbooks participated in the formation and reproduction of a juridical field in which members of the legal profession practiced specific forms of legal knowledge in specialized institutions. Grounding the study of the law in codification, while restricting it to such forms of legal ordering, generated another effect: the effect of universality, abstraction, and coherence. Because the law was deduced from a series of principles, it gained the appearance of a unified presence. But greater uniformity also meant that the literature came to comprise texts that iterated each other. What are the meanings of the fact that textbook authors were writing similar books that rarely departed from each other? How are we to understand the impulse to repeat—to write the same things over and over again? At least two answers can be offered here. The first is that the tradition of positive law is constituted more by repetition than is normally acknowledged. As we have seen, advocates of positive law took pride in the way that it, as compared to natural law, relied on human reason and hence on innovation; yet the repetition in the positive law textbook tradition points to exactly the opposite dynamic. In practice the tradition of positive law employs repetition and very little innovation, and hence marginalizes the originality of the human subject. This answer, however, is not sufficient, because it conflates different modalities of repetition; the second answer pays closer attention to the content of the repetition. Textbooks in Egypt repeated what was found in other textbooks written around the same period of time. Their repetition was of what was circulating in the present and had broken with the past. Repetition did not engender continuity with the past but rather homogenized the present. The authority of positive law was rearticulated by these acts of repetition—of the present and in the present. No longer was tradition the thread connecting the present to the past; authority rested within the threads connecting different elements of the present. The commitment was no longer to decisions that had once been made but to the present of the reform era and its framing codification. Legal arguments here, unlike what Paul Kahn argues, do not “begin from a commitment to the past,” and the law does not appear at any given moment “as the 58

conquest

sum total of all that which has been done and yet undone.”134 Rather, the law appears as the sum of textbooks and codes, detached from any time prior to them. The legal method used in the textbook genre was itself a historical method for dismembering the past. This presentism characterizing the textbook genre was indicative of the temporality of positivist jurisprudence. John Austin’s writings on positive law, which were extensively cited in the Egyptian textbook genre, promote a similar, presentist temporality. In the sixth lecture of The Province of Juris­ prudence Determined, Austin elaborates on the distinct marks of positive law, or “laws strictly so called.” He analyzes the related notions—sovereignty, subjection, and independent political society—because according to him, “every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.”135 These expressions, in Austin’s analysis, are presentist, in the sense that positive law is always a creature of the present. And this presentism is itself a historicizing force in that the very theory of positive law rests on dismembering the past. Positive law, in other words, is a historical method. Austin writes: “Even though it [positive law] sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institutions of that present sovereign in the character of political superior.”136 The law may have sources in the past, but what distinguishes positive law, or the law strictly so-called, is the present sovereign. To clarify this presentist temporality, he borrows language from Hobbes and writes: “The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law.”137 Sovereignty here is located in the present, and the addressees of the law are those who are in a state of subjection to it, the sovereign, whom they are in the habit of obeying. For a political society to form, “the generality of the given society must be in a habit of obedience to a determinate and common superior.”138 But what is meant by the term “habit” if not a continuity in practice that does not abide by temporal distinctions? In Austin’s analysis, habit is not necessarily related to the past and can form in a short, condensed period of time. Austin argues that if obedience is “rare or transient” and 59

history

not “habitual or permanent,” the relation of sovereignty is not established. Habit, then, is opposed to that which is rare and transient, that is, to that which does not happen regularly and fails to fill the time, the time of the present. To elaborate on the meanings of habitual obedience, Austin resorts to the example of conquest, and cites that of the allied armies’ occupation of France. Occupation is perhaps exemplary because it interrupts the flow of time, produces a detachment from the past, and presents the possibility of filling, or not, the present time with both the habitual commands of the sovereign and the habitual obedience of the subjects. During the occupation, Austin argues, the French government and the French people obeyed the commands of the allied sovereigns. But “since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute the relation of sovereignty between the allied sovereigns and the members of the invaded nation.”139 The French government and its subjects constituted an independent political society, but the allied forces did not constitute a sovereign. Does this mean that positive law cannot form under conditions of occupation? No. Austin’s analysis implies that if the occupying sovereigns were to intensify their commanding, making it habitual and not transient and stretching it into the future, obedience would be habitually practiced and the province of positive jurisprudence would be present. Put differently, for the law of the occupying forces to constitute positive law, occupation should be more permanent (and less transient), or should make its present time endure. Occupation should shape up into colonization. This also means that the present time of occupation, or of colonization, must be legally thickened and condensed by being filled up with legal commands. The more law there is, the more assurance we have that we are in the presence of positive law. This tendency of modern positive law may help to explain why textbook writers exhibited an impulse to repeat the law over and over again, to intensify the citation of that which existed. Positive law in its first decades needed to posit itself, to establish its presence; one of the accomplishments of the textbook genre is that it represented that presence. But there is more. The fact that positive law establishes itself as law by enacting more law reveals that positive law is simultaneously both its own means and end, 60

conquest

and it collapses one into the other. It needs no external measures to define it; its presence is confirmed by more of its presence. Might this be the ultimate arbitrary procedure? I have already suggested that presentism is what constitutes colonial authority. Colin Campbell argues that the decline of tradition can just as easily lead to an increase in the extent to which individuals abandon themselves to whim or impulse.140 While my discussion thus far has not been about human subjects and actors, a parallel argument can be made with respect to the law. Law is not necessarily abandoned to whim or impulse once tradition and the past are dismembered. But a self-referential law that performs its own authority by citing itself over and over again is one that has no exterior to check it, no limits on its expansion, and no memory to stop this expansion.141 mour ning a nd hope How does this account of law textbooks contribute to our understanding of the practice of “legal history”? Conventionally, history in legal history enjoys a dual meaning. On the one hand, it is a discipline that offers a framework, a set of methods, or a gaze through which we examine an object called “law” as it existed and transformed in times past. In this sense, legal history equals the history of law—of legal practices, systems, institutions, and doctrines. History provides a perspective; law provides an object. Law here is the content that fills up time past, the source of meaning that loads time with actors, events, disputes, and resolutions. But history also means a period in time past, a certain space opened up in time that contains events, actors, texts, meanings, institutions, practices, and so on. If some of these are qualified as legal, that is, concerned with the law, then we are in the presence of legal history. These two meanings of history often, though not always, overlap. Following these two versions of legal history would result in an inquiry describing the emergence of a certain legal system toward the end of the nineteenth century, its doctrines, range of practices and institutions, actors, and sociolegal and ethical meanings.142 Another inquiry would focus on the reasons for the emergence of the new legal system, the rupture it may have introduced, and its power operations. In the case of Egypt, this means describing the consolidation of a positive liberal system of law and 61

history

examining its difference from, or similarity to, the khedival legal system and the more longstanding shari‘a. All these inquiries are important, and indeed the analysis above pursues some of these questions. What these inquiries share is an understanding that law makes no intervention in the movement of time. The task of locating the past in relation to its own past, present, and future is left to the historian. In other words, temporality is a characteristic of history, not law. History, in this understanding, adds a much-needed yet missing element to the study of the law: a temporal dimension, a relationship to the past. A legal text is not the work of a historian but an analytical atemporal text. And it is only when a legal text is self-consciously historical, as is the first part of Zaghlul’s book, that we consider the authors as legal historians. Nevertheless, positive law as it was secured by the Egyptian textbook tradition is also a temporal concept in that it enacts a certain relationship with the past. Egyptian lawyers who wrote at the turn of the twentieth century were historians first and foremost in that they concerned themselves with a certain relationship to the past without necessarily recounting the story of the past. The textbooks’ labor of abstraction not only systematized the law but also gave the law the quality of a unified system governed by a set of abstract principles. This abstractness produces its own temporal effect. Because abstract principles are self-declared universals, they also have the property of having always been in effect, for the dimensions of the universal are not only spatial but temporal as well. When time past is considered, it is transformed into a reserve of sources from which positivist lawyers select for the purposes of validating abstract, universal, and immemorial principles. In such a scheme, the past has no significant presence in the present that leaves it with a coherent legacy. The past is rather a distant territory that gradually disappears in the self-performance of the new legal system. What remains of the past are certain moments that can be appropriated in the present and instrumentalized for the present. It follows that the presentist nature of positive law accomplishes the historicizing effect of not only detaching the past from the present but also erasing it as a coherent tradition and further contributing to its loss. In this sense, positive law is a historical method; it makes certain readings of history possible and others impossible. And when the impossible intensifies, loss is magnified. 62

conquest

By repeating the historical sensibility of the textbook tradition that authored the loss of the older system of law in Egypt, one risks reproducing the force of positive law and its colonizing powers. But were there other lawyers who practiced other historical methodologies? Or was the colonial era so unified in its discourse that the textbook tradition that started by authoring a break ended up describing it when the law began to follow its jurisprudence, when legal reality began to represent legal writing? I have discussed the tragic work of Ra’fat, who defended the shari‘a against positive law and in the process prepared the way for transforming it into a comparative system of law. But insofar as Ra’fat’s work was a work that mourned the demise of another legal tradition, it was also a work that insisted on hope. Ra’fat, as I have said, preferred Bentham over Rousseau. But Ra’fat’s turn to Bentham exceeds the comparison with Rousseau and characterizes the work in its entirety. His was not simply an application of Benthamist thought to Egypt; rather, he read Bentham in order to connect hope with traditions. Ra’fat was in this sense an “imaginative traveler in search of knowledge,” as Roxanne Euben would put it.143 Bentham, a rational Enlightenment philosopher who argued that the law must maximize pleasure and minimize pain, and thus promoted the idea that feelings and sensations can be rationally calculated or measured, was in the hands of Ra’fat mainly a philosopher of hope. Following Bentham, Ra’fat explains that the principles of pain and pleasure should govern the law. Ra’fat adds that the guidance of these principles is not limited to the present but should direct the future as well: “The human must enjoy comfort in the future. It is not sufficient to enjoy security in the present, but the law must, as much as possible, guarantee security in the future.”144 This feeling, directed at the future, is that of hope: This feeling produces a great effect in the life of the human being, and we call it hope (amal) in the future. Hope helps the human to order his ways. Hope bonds the different moments of life one with another; it joins our present existence with our future existence, and connects this generation with the next one.145

Hope is a temporal concept that connects the past with the present and future and guarantees continuity. Hope is the cement of time. When events 63

history

endanger our hopes, we suffer pain. Therefore, according to Ra’fat, a good law is one that registers and works in accordance with the movement (sayr) of hope. Hope, in the form of temporal continuity, always precedes the law. Hope is indeed the original activity: Law never exists before hope, except in the hypothetical situation of a new nation whose members are children and who are yet to cultivate hope. In such a case, the legislator faces no opposition and can direct the hopes of the people as he sees fit. . . . The legislator in this case is similar to he who engraves on a stone whatever image he wishes for.146

But nations since the beginning of time, suggests Ra’fat, have always had hope. Therefore, the legislator must be compelled to make peace with hope, which preexisted the law: “Hope has carved out a river for the law to flow in.”147 A law that violates the movement of the current in the river will therefore be resisted. When this is the case, the legislator must delay the implementation of the law so that there is no resistance to change and minds are prepared for the new. It is possible to read Ra’fat’s work as conservative. The work argues against revolutionary changes, whether initiated by the colonial state or by its adversaries. But what seems similar to conservative ethics is more of a historical sensibility that registers the claims of the past on the present and reveals the force of traditions in the cultivation of subjects. Of the situation in Egypt, Ra’fat writes that the legislator had failed to understand the sovereignty of hope (sultan al-‘amal). For if laws were in accordance with hope, they would have been simultaneously inscribed in the minds of subjects. When laws violate the current of hope, they become more difficult to “inscribe in memory.” We are in the presence, then, of a jurisprudential text that unintentionally turned the shari‘a into a comparative system of law, and by so doing contributed to the loss that the positivization of the law engendered. But we are also in the presence of a text that defined the law as historical memory, and by doing so resisted the abrupt rupture that the positivizing of law brought about. If Ra’fat’s jurisprudence were more central to the modern legal canon in Egypt, we would have been left with different historical-juridical ethics with which to think about the claims of the past 64

conquest

and earlier legal traditions. And yet, because Ra’fat’s work is also about hope, it also explains the persistence of the past and the revival of its tradition. In this sense, the colonial era was never fully colonial, but always also comprised the remains of its past. And it is in this sense that mourning and hope are more suitable for understanding the temporalities of the colonial than theories of totalizing regime change. Colonial rule, knowledge, and sensibilities eradicated the past and engendered not only new ways of relating to it but also institutions constitutive of a new present open to the future. But such destructive productivity is only one part of the story, which narrates the triumph of colonialism and modernization. The other part registers, at least partially, the persistence of the past—not in the form of fixed institutions that can be immediately revived and relived but rather in the form of threads enabling the remembrance of the past and consequently its reinvention. The linear understanding of time is neither the only representation of forward movement nor the sole account of backward return. The colonizing power of positive law consisted of “losing” the past and setting up a self-referential system with presentist dispositions. In addition to the closure that the law provoked in relation to the past, there was also an opening in the present in relation to the future. A temporality of becoming guided this movement toward the future. But who/what would be the subject of this future-oriented movement as it was launched from the colonial present? What/who did colonial law take as its field of intervention and the site of its presentist operations? That was the human. The concept of the human surfaced as the subject of law and history that would be released from a dehumanizing past and inscribed in the law to be humanized. The next chapter examines this juridical work of inscription and the realization of the human as the telos of modern law. The rise of this human functioned as a further break from history, therefore marking and embodying the loss of the past. Yet, the human could only be realized by breaking from the prehuman. This break was never definitive. The question is, what was lost if the human—the mark in some sense of loss itself—was itself incomplete?

65

chapter 2

Conscripts

The world is an atom and the atom is the world. Who knows which is of more value here, the cornelian or the pebble? We have staked our life, our reason, our spirit, our religion, in order to understand the perfection of an atom. Sew up your lips and ask nothing of the empyrean or the throne of God. No one really knows the essence of the atom—ask whom you will. The Heavens are like a cupola upside down, without stability, at once moving and unmoving. One is lost in contemplation of such a mystery—it is veil upon veil; one is like a figure painted on a wall, and one can only bite the back of one’s hand. f a r i d u d - d i n a t t a r , Mantiq al-tayr (The Conference of the Birds)

t h e c o l o n i a l a r c h i v e of Egypt includes a peculiar correspondence

dated to the very first days of the colonial state and British rule. The peculiarity of the correspondence lies in its mixture of colonial government with care for the humanity of Egyptians. The correspondence concerns the trials of the rebels who took part in the ‘Urabi Revolution against the foreign-imposed Khedive Tawfiq. The revolution constituted the pretext for the British occupation in 1882, and the trials were conducted under British rule. In the correspondence, British officials emphasized time and again the need to recognize the humanity of Egyptian rebels by guaranteeing the observance of certain legal measures. Khedive Tawfiq had issued a special decree ordering the prosecution of the rebels in a court-martial.1 The archival records for the court-martial reveal how British colonial officers understood their role with regard to these trials: that of ensuring the implementation of the universal principles of the rule of law, the humane treatment of prisoners, and the humane imposition of sentences.2 In short, their role was to guarantee the inclusion of Egyptians in the realm of humanity, to be accomplished by the colonial state, its law, and its inspectors. 67

history

Though the inspection of the rebels’ trials was by no means a constitutive moment in the colonization of Egypt, concern for the humanity of Egyptians and its association with colonial law continued to shape much of colonial policy for years to come. British and Egyptian officials viewed the mission of the colonial state and law as partly coincident with the declaration of Egyptians’ humanity. Thus, the correspondence belonged to a longer history of juridical modern humanizing powers that the colonial state introduced and that targeted some Egyptians by declaring them to be human. Targeted populations included child laborers, peasants, laborers, and prisoners. This chapter is an account of this history of colonization, in which colonial law took upon itself the humanization of Egyptians in its selfreferential, presentist order. The colonization of Egypt, therefore, emerges in a new light—not as dehumanizing Egyptians, but as working to include them in the realm of universal humanity, which colonial law simultaneously facilitated. If chapter 1 revealed the coloniality of legal positivism to have operated through the production of a self-referential, presentist law, this chapter reveals another version of law’s coloniality, one that was governed by the realization of the human. Three sets of questions frame this chapter’s account: First, what was the relationship between modern law and humanity during this moment in Egypt? Why were legal measures so crucial for declaring humanity, and thus for the rise of the human in colonial politics? Second, how are we to understand this declaration or recognition of humanity? What assumptions about the human did the declaration require in order to make sense at that time? Third, did the declaration of humanity assume a prior absence, a prehuman? What did this absence or prehuman consist in, and was it overcome? The scene is colonial Egypt, and the era, as established in chapter 1, is that of a present ruptured from a past that continues to leave its marks. The historical stage is the turn of the twentieth century, when the human was awakened as a juridical concept. Among the champions were colonial officials. There were also lawyers and jurists, as well as Egyptian public intellectuals who debated the meanings of the human and European philosophers whose texts circulated in Egypt. Finally, there were reformist humane practices with no specific authors. The French Declaration of 68

conscripts

the Rights of Man and of the Citizen found a career in colonial reform; European ideas and practices of emancipation became forces of colonization. The following inquiry locates the details of awakening the human, its entanglement with the new positive law, and some of its disciplinary operations. An investigation of the sensibilities resulting from this awakening, and a discussion of other governmental effectivities, will follow in subsequent chapters. new men, humans “Our task, therefore, included something more than new principles and new methods. It ultimately involved new men.”3 This was Alfred Milner, whose England in Egypt was first published in 1892. Milner was a British statesman and a leading imperialist, who from 1890 to 1892 served as undersecretary of finance in Egypt. His book argued for greater British involvement in Egypt and evaluated the reforms that were introduced to Egypt as models that others should follow.4 These reforms, according to Milner, were first and foremost concerned with the production of “new men.” He suggested that “‘men, not measures’ is a good watch-word anywhere, but to no country is it more profoundly applicable than to Egypt.”5 Milner linked the making of new men to the work of government; the making of new men involved “the education of the people to know, and therefore to expect, orderly and honest government—the education of a body of rulers capable of supplying it.”6 Like Jeremy Bentham, Milner considered legal reform to be a vehicle for moral education and specifically a machine for the production of new men. His association between the “government” and “new men” collapses one category into the other. The new men are either the governed or the orderly governors; one becomes a new man by learning the art of being governed or of governing. Milner did not develop this point further; the other parts of the book discuss the work of government in Egypt. Similar associations were established time and again in the writings of other colonial officials, or imperialists, as well as in the practices of legal reform. Writing in 1920, slightly less than three decades after Milner, Valentine Chirol, a journalist and British diplomat, discussed the reforms that the British introduced in Egypt. Chirol wrote that they produced “not only prosperity but confidence in 69

history

the beneficent Power whose presence in Egypt had transformed the face of the country.”7 He added: The days of the Oppression were still fresh in the fellaheen’s [peasants’] memory and the sense of relief was paramount. With the reorganization of the army begun by Sir Evelyn Wood, military service, though it never became popular with the Egyptians, was robbed of its old terrors. Conscripts too poor to bribe the authorities were no longer marched off handcuffed and in chains like hunted criminals. People came to know that the rules which now governed both conscription and exemption were enforced with fairness to all under the supervision of British officers, who insisted on discipline and obedience, but not on bakshish [tips], and treated their men as human beings and not as slaves.8

In this account, the colonially cemented association between government and men took a different but parallel form to Milner’s. British officials guaranteed the enforcement of rules, demanded discipline and obedience, and in doing so treated Egyptians as human beings. The assumption organizing the text is that the equal application of rules, noncorporeal discipline, and the treatment of Egyptians as human beings are logical extensions of each other. But that one is human if one is treated equally to others in accordance with the law is only one definition of the human. This definition reflects a particularly modern desire for equality achieved through the figure of the human. Additionally, that one becomes a new man upon learning to recognize and expect an orderly government is also not necessarily common sense. For these arguments to make sense, they had to belong to a new tradition that began to implicate, in novel ways, the human in the law, government, and equally applied rules. These arguments, to be sure, did not simply reflect humanist intentions that were impossible to actualize under colonialism’s inhumane conditions.9 This particular tradition of humanist rhetoric and practice had its own colonial career. What were the characteristics of this tradition? What power did the law have in this tradition? How did it define the human and the law/­ government? Rousseau’s writings, in particular The Social Contract, cited in the Egyptian legal scholarship of the colonial era, provide initial theoretical insights into these questions. His work presented Egyptian lawyers with a normative figure/concept of “man” that colonial law was now able 70

conscripts

to produce in its movement away from the precolonial era.10 In the chapter called “Civil Society” he writes, “The passing from the state of nature to the civil society produces a remarkable change in man; it puts justice as a rule of conduct in the place of instinct, and gives his actions the moral quality they previously lacked.”11 But does this remarkable change occur “in man,” as Rousseau writes? If so, does this mean that man is an absolute presence, that he has always been with us? Or is it, as Rousseau later writes, that he who enters civil society becomes a man? “And although in civil society man surrenders some of the advantages that belong to the state of nature . . . he should constantly bless the happy hour that lifted him forever from the state of nature and from a stupid, limited animal made a creature of intelligence and a man” (emphasis added).12 It is unclear whether man exists prior to civil society, or whether civil society endows him with the status of man. Is man always present, or is he an effect of the humanizing powers of the social contract and of civil society, that is, of history and of power? Could it be that Rousseau himself, who some historians declare to be a founder of human rights, is unclear about the definition of man, whether man is a supplement of the work generated by the movement of history, or is an absolute presence?13 Might it be that civil society gives man a status that he already had, supplements him with what has always been?14 Man, it appears up until this point, is both a fixed reference and a work of supplement, an essence and an effect, a given and a product. Rousseau concludes this chapter by suggesting that what “man” acquires with civil society is “moral freedom,” which “alone makes man the master of himself; for to be governed by appetite alone is slavery, while obedience to a law one prescribes to oneself is freedom.”15 Whereas man has always been present as an animal or as a slave, the social contract, and specifically obedience to the law, disjoined man from his natural condition and produced a new man endowed with moral freedom. The logic of humanization is still operative, though its starting point is not the complete absence of man. Later, Rousseau also argues that the positive law of the state, as distinct from natural law, produces a transformation of man. The law of the state is an act of the people as a whole making rules for the people as a whole. It is general because the will that makes it is general. It considers 71

history

all actions in general and in the abstract, without reference to individual men or specific actions. It is depersonalized and detached from the question of justice: in a remarkable moment in Rousseau’s text, he writes, “We can . . . no longer ask if the law can be unjust, because no one is unjust to himself.”16 The justice of the law is undeniable.17 He could have said that law is neither just nor unjust—but what Rousseau dispenses with is the question, not the answer. For the answer, now that the question of justice has been avoided, is already given and cannot be questioned: justice and the law are the same. Rousseau, then, collapses law into justice and forecloses an investigation of the justness of the law. This moment is remarkable for its power operations and ethical implications: positive law monopolizes justice by making the question of law’s justice decided. After collapsing law into justice, Rousseau also collapses citizens or subjects into the law: “[The] laws are but registers of what we ourselves desire.”18 Because laws are the product of the general will, they must also represent subjects in their capacity as constituents of the general will. What is intriguing is not so much the absence of power relations in Rousseau’s formulation of the general will, a formulation that allows him to equate the law with the desires of individuals without an account of their singularities and differences, but rather the resulting symbiosis between “ourselves” and the “law” accomplished by a double movement. The law is a register of what “we” desire, but it also transforms us. The law is a register of man and detached from him. It magically stands for us and for what we can become or that which we are not. In his discussion of the “lawgiver,” the engineer who invents the machine of the people, he writes: Whoever ventures on the enterprise of setting up a people must be ready, shall we say, to change human nature, to transform each individual, who by himself is entirely complete and solitary, into a part of a much greater whole, from which that same individual will then receive, in a sense, his life and his being. The founder of nations must weaken the structure of man in order to fortify it, to replace the physical and the independent existence we have all received from nature with a moral and communal existence. In a word each man must be stripped of his own powers and given powers which are external to him, and which he cannot use without the help of others [emphasis added].19

72

conscripts

The content of this particular transformation aside, this passage reveals the power of the lawgiver and the law, to transform and to produce new men. What colonial Egypt shared with Rousseau was not the particular trajectory of transformation from independence to communal existence. Rather, it shared a reliance on a modern force—positive state law—to produce new men who would owe their “being” and their “life” to the law, or what I call “juridical humanity.” Whether this project is possible or not is, perhaps, made visible by Rousseau’s addition of “in a sense,” italicized in the passage quoted above.20 But the conditions of possibility in Egypt culminated with the rise of positive law and the rupturing of Egypt’s legal tradition. Significantly, it was juridical humanity and not “natural man” that came to constitute a technology of colonial rule, as I will discuss below. jur idical hum a nit y By the turn of the twentieth century, as shown in chapter 1, Egypt’s law became delimited and detraditionalized. The new, self-referential, positivist jurisprudence transformed the law into a deductive operation: deducing legal judgment from legal principle. Similar to the operations of social science in the same period in Egypt, positive law established itself as a set of general principles from which to deduce singular cases.21 Theoretically and historically, modern positive law incorporates the human concept/figure in three distinct ways. Against natural law, positive law claims its authorship and source to be the human. The liberal rule of law–based career of positive law also claims that the human is the teleological end of the law. This is suggested, for example, by the French Declaration of the Rights of Man and of the Citizen, one important document produced in this career. The rights claimed in the Declaration, as Hannah Arendt reminds us, made the human come of age: “Man himself was their source and their ultimate goal.”22 The third mode of incorporation is through the concept of the person. The human is a person according to the law; the human constitutes a legal personality. The second, liberal incorporation of the human, as the teleological end of the law, was the most cited in the Egyptian positive law textbook tradition. Despite its claim to be separate from morality, positive law 73

history

often fashioned a normativity of its own that it articulated as “benefits” or “utility.” The benefits of the new positive law–based system, argued jurist Salama ‘Abdullah in his Muqaddimat al-qawanin (Introduction to the Laws), were especially apparent in reference to places that were without law, those inhabited by barbaric nations. In its positive formulation, argued ‘Abdullah, law reduced misery and spread reasons for civility, happiness, and peace among people. It also protected the family, dignity, and property. Law put an end to times when authority was in the hands of the strong and the rich. It commanded respect and demanded obedience.23 In Egypt, ‘Abdullah added, the laws of the past had been arbitrary. The king exercised absolute power over ignorant people who allowed him to lead them at his whim. “Personal freedom was lost, and the human in some ages was not able to choose his profession.” Then, according to his account, the French Revolution took place; with it, the human, and its laws, moved from one state to another, from despotism to freedom. The French Revolution brought about changes in many governments in Europe throughout the nineteenth century and chained the hands of rulers so that they could no longer harm the interests of their subjects.24 ‘Abdullah found the ideals of the French Revolution and its advocacy for the rights of man to have been articulated in, and guaranteed by, the system of positive law in colonial Egypt. The latter was understood, by ‘Abdullah and other authors of the textbook tradition, to have emerged out of concern for the human. Positive law, in contradistinction to the shari‘a or divine injunctions, was authored by and tailored for the human. Conceiving of the human as the end of the law was part of a broader Enlightenment movement that articulated the human as an end, not the means to an end. Immanuel Kant’s famous formulation that humanity is an end in itself is perhaps the clearest articulation of this understanding, though it was not developed from within a theory of positive law: Now I say that the human being and in general every rational being exists as an end in itself, not merely as means to be used by this or that will at its discretion; instead he must in all his actions, whether directed to himself or also to other rational beings, always be regarded at the same time as an end. . . . Beings, the existence of which rests not on our will but on nature, if they are beings without

74

conscripts

reason, still have only a relative worth, as means, and are therefore called things, whereas rational beings are called persons because their nature already marks them out as an end in itself, that is, as something that may not be used merely as a means. . . . These, therefore, are not subjective ends, the existence of which as an effect of our action has a worth for us, but rather objective ends, that is, beings the existence of which is in itself an end, such that no other end, to which they would serve merely as means, can be put in its place.25

While references to Kant in the Egyptian law textbook tradition were relatively few, his intertwining of the “human” and the “person” had echoes in Egypt. Further, his insistence that the human is an objective end, as opposed to a means to an end, forecloses a third scenario for the human, where the human is a means to no end, a pure means, or humanity as a means in itself. This other concept of the human and of humanity, present in Egypt, constituted an episode in its countercolonial history to which I turn toward the end of this chapter.26 For now, I want to consider the relationship between the statement that the human is an end in itself and the figure of the person that appears in Kant’s text, which is the third incorporation of the human in positive law mentioned above. Kant argues that rational beings, that is, human beings, are called persons because their humanity is an end in itself. The person, then, encapsulates humanity as an end in itself. Kant concludes the next paragraph by stating a practical imperative: “So act that you use humanity whether in your own person or in the person of another, always at the same time as an end, never merely as a means” (emphasis added).27 Humanity as an end in itself is housed in the person. The person is the figure that embodies the ideal of humanity as an end. Later he writes: “I cannot, therefore, dispose of a human being in my own person by maiming, damaging or killing him.”28 Kant’s reasoning against suicide suggests that humanity is similar to a substance that thrives in the person, or to a set of characteristics of persons. Whereas it is possible to speak of the person’s animality as well, it is humanity that constitutes the end.29 This humanity must reside in the person. Kant’s text constitutes an instance of the association between the human and the person, one that had a colonial career in Egypt.30 If in 75

history

‘Abdullah’s text the human signified a normative state of emancipation, in other textbooks the category of the human was also used to signify a subject of law or a person in law. Most textbooks mixed the two meanings: the emancipated human and the person in law. The clearest articulation of this configuration of the human as a person in law, together with its simultaneous emancipated figure, came from jurist Ahmad Safwat. In his book Muqaddimat al-qanun (Introduction to the Law), Safwat argues that the human personality in itself guarantees its rights and establishes its duties. The human, however, cannot claim its rights alone but must take refuge in the law and its courts. In the third chapter, titled “Al-Ashkas” (Persons), Safwat writes: Every human being is now a natural person by virtue of his existence. This is because his legal personality is evident in his self. The legal personality is an obligatory characteristic of the human. It became obligatory after the abolition of slavery, because [prior to that] the human could have become a slave [emphasis added].31

Safwat locates the transformation of the human into a legal person in the “now” of the post-slavery, post–French Revolution era. Prior to that time, he argues, the human was at risk of becoming a slave and thus of losing its legal human status. In the post-slavery era, humanity was recognized as a legal personality, and slavery, or the loss of the status of human, was no longer permitted. Safwat’s account is fascinating because in it, to become human one must be a person in the law. The legal personality, and hence the law, according to Safwat’s logic, identifies the human. Safwat names subjects who are yet to be declared human (slaves or subjects of despotism), thereby necessitating a resort to positive law that can for the first time establish their humanity through the category of the person. This move correlates with the labor of abstraction characterizing the new legal positivist tradition and the departure from the shari‘a conceptions of law discussed in chapter 1. Once classifications and principles began to frame the details of the law, the status of the legal person, defined by legal rights and duties, also began to define the human. The legal distinctions that produced a discrete human status became constitutive, the source of the understanding of what or who the human was.32 76

conscripts

Conceiving of the human as a person in the law and simultaneously its telos had remarkable effects. On the one hand, it enabled the awakening of the human, who/which began to acquire life as an organ in the living body of the law in the status of a person. On the other hand, the human also for the first time risked dehumanization if the body of the law broke down or degenerated. The human was to have a life of its own, which the law guaranteed as its end and as its person. In the absence of the law, the human metamorphosed into a dehumanized slave or, elsewhere, disappeared; in its presence, the human appeared as a person, emancipated from the oppression of slavery and emerging from the dark corners of history. Modern positive law made its own existence and intervention necessary, and the human became entangled with and indebted to modern law. This entanglement and indebtedness is what I have been calling “juridical humanity”—a concept and associated practices and sensibilities that contributed to the colonization of Egypt. To be sure, the idea of a person is heir to numerous traditions and the product of a long history. The category of the person existed in nonpositivist and pre-modern legal traditions. Marcel Mauss’s essay on the “notion” or “concept” of the person narrates its long evolutionary itinerary. The evolutionary narrative and its normative implications aside, Mauss’s account offers insight into the association between the person and the human outside positive law. He distinguishes between three concepts in the history of the person: Personnage, Persona, and Personne. The person appeared at one time as the role or the “acting-out” of a “pre-figured totality of the life of the clan.”33 The actor was at once absorbed into the clan and also detached from it through the mask or the role (personnage). Personnage was, therefore, an artificial character, a mask, a trickery or hypocrisy. The Romans developed the notion of the person (personne), which was “more than an organizational fact, more than name or a right to assume a role and a ritual mask. . . . It was a basic fact of law.”34 As to the third notion, persona, it was synonymous with the true nature of the individual. And although the Greeks are credited with enriching the term to signify human—even divine—personality, the personne owes its development to Christianity, which made a metaphysical entity of the moral person. There was a transition from the notion of persona “to the notion 77

history

of man, quite simply, that of the human ‘person.’”35 What we have, then, is a movement from a mask, an artificial imposition, to a notion of “man, quite simply.” The “self,” an essential figure of thought and action, would be the next category, for the accomplishment of which Mauss credits Kant and Fichte. He concludes this argument by suggesting that “from that time onwards the revolution in mentalities was accomplished. Each of us has our ‘self’ (moi), an echo of the Declaration of the Rights of Man, which had predated both Kant and Fichte.”36 In Mauss’s narrative, positive law did not invent the collapse of the human into the person, but it might have inherited it from Roman law and Christianity. Yet this collapse as it appears in the Egyptian textbook tradition merits some attention because of its consequences in a secular age, when positive law, not religion, defines the person. This collapse becomes one of the power operations of the law that can now hold the human even more firmly through the figure of the person. He concludes his essay by preferring not to commit to a moral judgment: Even its moral strength—the sacred character of the human “person” (personne)—is questioned, not only throughout the Orient, which has not yet attained the level of our sciences, but even in the countries where this principle was discovered. We have great possessions to defend. With us the idea could disappear. But let us refrain from moralising.37

Writing in 1938 in the aftermath of the First World War, Mauss seems to be reflecting on the violence of his time. But this very idea, as well as the Declaration of the Rights of Man and Citizen, also had an echo in colonization projects. If one were not to prioritize one horror over another, would it be possible not only to refrain from moralizing but to examine the governmental operations of the association between person and human, law and the human, the project of “juridical humanity”?38 By deducing the human from its inscription in the law as a person with legal status, this status began to precede, rather than follow and describe, all humans. In Egypt, the law’s power to constitute humanity carried with it the risk of eradicating all other “humans” by imposing its particular vision of humanity.39 The law’s power of constitution resulted not only in a new birth but also in a past absence; indeed, it had to define a prior 78

conscripts

absence in order to create an occasion for the operation of the law. The governmental force of this claim is overwhelming, making legal reform, intervention, and occupation ever more imaginable. In this case, then, the rise of “juridical humanity” that I have been recounting historically and formulating theoretically was a colonizing force. A word on terminology: by saying that colonial Egypt witnessed the rise of “juridical humanity,” I suggest treating the human attached to juridical humanity as a concept that begins to signify new political possibilities and disciplinary operations that were previously absent. “Juridical humanity” is my own term; the concept traced in the colonial archive is the “human,” not “juridical humanity.” The use of “juridical humanity” enables a certain measure of distance between my historical/theoretical investigation and the conceptual self-expression of colonial actors. The insistence on this distance follows Reinhart Koselleck’s cautionary remarks about methodology. He reminds us of the quality of the concepts of political language: while they are “related to agencies (institutions, groups, and so forth) and their movement,” they “are not assimilated by them.” History is, therefore, “not the sum of all articulated namings and characterizations in political language, nor of political dialogue and discussion.” History is “not assimilated by the concepts through which it is comprehended.” Hence there is a need for “methods of historicopolitical semantics” where a distinction is made between “past historical usage of antithetical concepts and the semantic structures they are invested in.”40 “Juridical humanity” is a concept that suggests a particular meaning of the idea of the human as it appears in several sites of the colonial archives. “Juridical humanity” at once serves to theorize the coloniality of the particular concept of the human and to distinguish it from other meanings of the human. “Juridical humanity” also introduces a measure of distance between this historical account of Egypt and the concepts prevailing in the archive, without reducing the latter to legitimizing rhetoric or masking conceptual apparatus. Humanizing powers, to be sure, were not restricted to juridical forces. Some were educational; others were part of a positivized religion. But what all these powers shared is the understanding that humanity can be endowed by the operations of distinct powers or taken away in the event 79

history

of their failure. Humanity was now a status that needed to be declared, as Milner did in 1883. That the status was juridical was not exclusively the case; often this status was also the work of historical becoming that intersected with the operations of the juridical. The writings of the modern reformer Qasim Amin reveal this intersection. t h e n ew wom a n “Those women believe that they are human beings and that they deserve freedom, and they are therefore striving for freedom and demanding every human right.” So wrote Qasim Amin, an Egyptian reformer, jurist, and champion of women’s rights, who argued that the inferior status of women was major evidence of the backwardness of Egyptian society. This quotation is from his now classic book The Liberation of Women (Tahrir al-mar’a), published in 1899. In 1900 he would publish The New Woman (Al-Mar’a al-jadida), his second book on the subject, which arguably espoused a more openly Western analysis with, unlike the first book, no reference to the Qur’an and the hadith (the Prophet’s sayings).41 The above statement and the more general work it was part of belonged to an era of international feminist writing asserting women’s humanity. Amin’s texts also belonged to the regime of juridical humanity, under which humanity needed to be demonstrated, argued, and asserted. Under this regime, the figure of the human was made effective and instrumental to political ends. Hence, Amin declared that women, too, “are human beings,” a declaration that was mobilized in the effort to redeem Egypt and deliver it from its backwardness, as well as to signal the advancement of Egyptian men: “A refined and sensitive man realizes that a woman is a human being too, with the same rights and obligations as he has.”42 This human status, even as it remained a condition of birth, required a performative declaration as per the dictates of juridical humanity. For when the thought of the human was firmly grounded in the absent human, a performative declaration that would establish anew the humanity of the woman was necessary. Because the human was thought to be absent in women, it could be claimed in them. Amin writes: “Who do you understand the woman to be? Like a man, she too is a human being. Her body and its functions, her feelings and 80

conscripts

ability to think are the same as the man’s. She has all the essential human traits, differing only in gender.”43 Whereas colonial officials argued that the status of the human was to be conferred on all Egyptians without reference to their gender, thus inviting a series of acts by governmental humanizing powers, Amin argued that absent overt recognition, women’s humanity was not yet fully established. This desire for recognition that carries the force of finalizing woman’s humanity in effect attributes a humanizing force to the work of recognition. What colonial officials and Amin shared, then, was the understanding that humanity was a status that may be confiscated or given back by the work of law or recognition. They both belonged to an era when humanity was no longer a given condition of all men and women born alive but rather the effect of humanizing powers that performed the humanity of subjects. Crucially, the human status, once given and recognized, became the disciplinary medium for reforming individuals and societies and for protecting them. In The New Woman, Amin refers to the example of Western societies: When the veil of ignorance was finally lifted from European men, they admitted that they themselves were instrumental in the inferior position of women, and that, as with men, a woman’s mental and social status can change and develop. They also realized that a woman was a human being like them, that she had the right to enjoy her freedom and to use her capabilities and that depriving a woman of beneficial experiences was unacceptable.

These changes initiated a new phase for the Western woman. She started cultivating her mind, refining her manners, and gradually gaining her rights. . . . In short that female that had been animal like—decorated with ornaments, garbed in fashion and immersed in amusement—was replaced by a new woman who was a sister to man, a companion to her husband, a tutor to her children—a refined individual [emphasis added].44

One may critique the roles that Amin assigns to women. More significant for the purposes of this discussion, however, is first, that the human status of women is produced by the work of another’s realization and admission. And second, that this human-effect is in turn crucial for the reform of women by elevating them from animality to humanity and produc81

history

ing a “refined individual” in every woman. Animality, here, stands for the absence of humanity, or a humanity closer to animality that has yet to fulfill its own promise, a humanity that is absent insofar as it is only present potentially in animality. The status of the human, in other words, is disciplinary in the Foucauldian sense, and an evolutionary narrative is mobilized in the disciplinary operation. But not all disciplining necessitates an evolutionary narrative. Elsewhere in Amin’s two texts, but primarily in Liberation, he deploys the Islamic doctrine of human perfection, as opposed to human evolutionary becoming. Specifically, in the preface to Liberation he writes that “changing human beings toward perfection is a difficult proposition,”45 thereby suggesting an additional framework for his writing—not an endowment of human status by the way of recognition but the attainment of human perfection. Perfection is achieved through the work of education: “Education is the only medium which elevates the character of human beings from a low and degraded position to the heights of honor and respect.”46 The Islamic doctrine of human perfection posits a continuum ranging from perfect to imperfect humans. The prophet is the only perfect human, while all other human beings can only seek this perfection without ever attaining it. This doctrine neither relies on an evolutionary narrative nor requires a nonhuman, or an absent human, against which to define the human. It rather invites the practice of discipline aiming to perfect human beings, mainly through piety. When Amin works from within the Islamic doctrine of human perfection, women appear as humans engaged in the work of perfection, not recognition of their humanity: “Whoever assumes the responsibility of educating a woman should accustom her from her earliest childhood to love those qualities that in and for themselves complement the human being.”47 Amin’s two texts reveal two frameworks that constitute the human— the Islamic doctrine of human perfection and the evolutionary doctrine of human becoming, of humanization. In the former, the human does not necessarily equal the perfect human, for the human being may be perfect or imperfect. In the latter, the human is radically opposed to the sub­human or the slave, thus enabling a transition from one status to another. How do these two doctrines coexist? Is the human status of women forever 82

conscripts

given, as in the Islamic doctrine of human perfection, or is it a product of humanizing powers? In a few passages from Liberation, Amin makes use of both doctrines. When he probes the question of Egypt’s backwardness and the European conquest, he adds that Europeans have been able to occupy Egypt because of the perfection of their species: God created all creatures on earth and destined all of them to advance toward the perfection of their species. The weak members, however, are unable to compete successfully in the struggle for survival. On the other hand, every strong species in this struggle has been granted by God an obvious triumph. These victorious species return from the contesting arenas having proved their superiority over other species. As a consequence they become most outstanding species of their type. The survivors continue to live, reproduce, grow, and multiply, and they perpetuate their traits among the created order.48

What seems to be an Islamic doctrine of human perfection begins to appear to be a Darwinian evolutionary doctrine of natural selection and survival of the fittest. Despite the potential for perfection in all species that is divinely implanted, in the struggle for existence only the strong persist and multiply. Human perfection is facilitated through the struggle against weak subjects and their elimination. If such is the way to attain perfection, Amin concludes, the weak must then prepare “for this battle” in order to “avoid elimination and destruction” by “assembling capabilities equal to those of whoever is attacking.”49 Elsewhere in Liberation, Amin further subjects the Islamic doctrine of human perfection to evolutionary theory while rendering it more akin to a Darwinian conception of human perfection. He asks: “Which era is so unblemished that it can be identified as a ‘model of human perfection’?” He answers, “Human perfection should not be searched for in the past. If God wishes to bestow it graciously upon His servants, then He will do so in the very distant future.”50 Here Amin collapses the temporality of human perfection into historical evolution, whereby the movement of historical time parallels that of increasing human perfection. But human perfection has no historicity; a human can reach perfection, become imperfect, and try again, with no linear temporality organizing the achievement of perfection. Amin, however, historicizes the attainment of perfection, 83

history

subjecting what is ultimately an ethical quest in Islam to historical time now understood as evolution: One of the strangest things that the human mind has accustomed itself to is the conviction that its own era is inferior to those that have gone before. This is because sons respect their fathers and glorify everything that emanates from them: perfection for them is whatever their fathers do. Fathers constantly disapprove of new activities their sons undertake, and are unable to change. The fantasy of the sons and the conceit of fathers in effect support one another in denigrating the present and worshiping the past. . . . Such ideas contradict existing knowledge, which indicates that the human species have gradually progressed over the years up to the current advanced stage, of which we have the right to be proud.51

Translating the Islamic doctrine of human perfection into the terms of evolutionary theory makes ambiguous the determination of whether the human is always present but can be perfected or whether it has evolved from nonhumanity, from absent humanity. Either way, the attainment of a full humanity is achieved through the evolutionary movement of history. In a chapter titled “A Historical Perspective on Women,” Amin suggests that understanding women’s position in history is pivotal to understanding their present status. Why? “Because this is a basic principle of social research, which demands the understanding of various stages of change.” The study of history not only offers us an understanding of our starting point but also enables us to “predict the direction of change that will be facing us.” The study of history is the study of evolution and of progress. Amin’s history commences with Herodotus, “the father of history,” who marks the beginning of this historical exploration. During his times, relations between men and women were left to chance; they were “no different than that among beasts of the field.”52 The institution of marriage and the family was not known. Such also were the customs of Germanic tribes and pre-Islamic Arabs, and such are the customs in Tahiti, the Marquesas Islands, and other islands in the South Pacific and some parts of India and Africa. Under these circumstances, women lived independently and were equal to men in all spheres. This stage constituted “the early period in history,”53 the “nomadic stage,”54 or the period in history “when humanity was in its infancy.”55 Amin then moves to describe other his84

conscripts

torical ages in different geographic areas. The second is the formation of the institution of the family, when women fell into real slavery and lost their independence. The development of private deities facilitated the creation of the institution of the family. In the third stage, “men’s tyranny over women was somewhat diminished through government intervention in the private sphere.” In the second stage, marriage constituted a transfer of the ownership of women from father to husband; but in the third stage, “when humanity began its journey on the road to civilization,”56 and depending on the prevailing legal system, “complete or partial rights of ownership and inheritance were restored to women.”57 The third stage, marked by legal intervention, is one that recognized the humanity of the woman, according to Amin. In Amin’s description of the third stage, there is a disjuncture between law and the recognition of the humanity of women. This recognition remained incomplete because of the despotic form of government. Despotism had yet to be “replaced by a democratic system based on the principle of accountability to the law. This principle stipulates that an official in authority has no right over individuals or property except that which is legally prescribed to him.”58 This is precisely what is absent in the East but present in Europe and America, both of which have reached the fourth stage of history. In the third stage, then, humanity begins its march, with the help of law and government, toward civilization, which is supposed to fulfill humanity’s promise. As law remains despotic, it cannot accomplish this task. But why does despotism result in the incomplete recognition of women’s humanity? Because there is a link between political and legal formations and the status of women: “When one considers eastern countries, one finds that a woman is man’s slave, and the man is the slave of his ruler.” The transformation from the status of slavery to that of humanity requires a change in the law, a movement from despotic law to democratic law. In this context, Amin enumerates the changes that took place in Europe and the United States of America since their respective revolutions. He concludes: “As human civilization reaches its climax, women receive their complete freedom and most of the rights that men have.”59 This historical exploration reveals the work of law, liberal law in particular, in the evolution to humanity, or in the humanization of women. 85

history

Legal reform, not only the work of recognition, is explicitly a vehicle through which human status is finally attained. And legal reform is intimately tied to an evolutionary movement of history resulting in the interpellation of the human in both law and history. In the East, the human is yet to be summoned by the law, which remains despotic, and its history lags behind: “We still do not consider that women have the same status as men. Our minds are not prepared to grasp the obvious truth of ­women’s humanity.”60 Once again, humanity is obvious but not recognized, and hence it is incomplete. Women are at once human and not human. Recognition, law, and history-as-evolution have the power to decide on the humanity of women and to solve the puzzle of humanity and non­humanity. All three promise a decisiveness in the expansion of “universal humanity” to include the colonized, slaves, and women. All three carve out a space for their own intervention: crucially, all three must posit a distinction between the human and the subhuman, between the human and the nonhuman, in the activation of their powers. All of this necessitated the loss of the past. Just as positive law introduced a break in history by disavowing its own past, so, too, juridical humanity performed a further break in history by marking that very loss. t h e r e d e m p t i v e c o n v e r s i o n o f t h e l aw Amin’s texts reveal that the disciplinary operations of the law’s humanizing powers required a certain theorization of what the status of Egyptians was prior to the onslaught of those powers. The humanization of Egyptians necessitated a distinction between the human and its history. This distinction operated temporally: it facilitated a chronological movement from the past to humanity (humanization, becoming human), coupled with a threat that the movement might be reversed (dehumanization, becoming something else). This was a movement parallel to those identified in chapter 1 with regard to the coloniality of positive law. What was that prior status, or the past figure, that the project of humanization had to envision for its operations to unfold? Was that figure an animal, a machine, the inhuman? How was the difference established? Animality was no longer the radical other of the human in the age of Darwinism and humane reforms directed at alleviating the suffering of ani86

conscripts

mals, two movements discussed in chapter 3. The weakening of the animal as the radical other of the human was evident in developments in places other than Egypt. In England, for example, not only were many humane reform clubs concerned about animals operative there, but the boundary between animals and humans was becoming increasingly blurred. Erica Fudge’s historical account of early modern England elaborates on this shift away from a total distinction between the natural slave, the animal, and the human. This shift had emerged in the ideas of earlier European colonialists who argued that the human was a being not simply born, but made.61 Humanity began to be achieved through conversion, and the notion of the human became more complex. There were natural-born humans who could only be human because they possessed a rational soul. Then, there were humans who were in possession of a rational soul who required more education to become fully human. Finally, there were humans who possessed rational souls, and could be educated, but were still less human than the human. The possession of a rational soul no longer offered a way of distinguishing between the animal and the human. The category of the human began to include not only those born human and those who become human but also those who cease to be human, who become bestial, or beasts.62 Similarly, in colonial Egypt, the temporality of the human was no longer defined as the radical other of the animal. For Darwinists such as Amin, the human was the evolved phase of the animal, which was therefore part of the human. The colonial archive does not include many texts comparing Egyptians to animals, beasts, and monsters and arguing for the total exclusion of Egyptians as natural others. Reading “animality” as the other of “humanity” during the late modern period does not fully account for the changing political and intellectual conditions under which the category of the human was being thought. The colonial liberal state of the late nineteenth century continued to rely on the logic of humanization, or conversion, but its field of operations became increasingly juridical. The late modern colonial state declared Egyptians human, and by so doing, combined coloniality, juridicality, and humanity. The recognition of humanity also entailed its possible disappearance, or dehumanization, as the other side of the coin of humanization, or the failure of conversion. Once 87

history

humanization became possible through inscription in the law, dehuman­ ization, too, became increasingly instantaneously possible when the law risked breaking down. Conversion, or the break with the prehuman, was therefore never final or definitive. Central to the work of humanization, or conversion, was also the way the force of law opposed the human to the inhuman, that is, to conditions of cruelty and subjugation. Legal reformist practices that aimed to rescue peasants from their inhuman past and deliver them into humanity shed light on this aspect of humanization and juridical humanity. On assuming office in 1883, the Egyptian minister of the interior of the colonial state issued a circular calling on all branches of the administration to treat the various classes of Egyptians with virtue, dignity, and equality without consideration of wealth or age. “There should be no violation of the rights of any human regardless of his race or nationality.” The minister also specified that “insults and torture, especially whipping, [were] prohibited” and concluded that such actions were “barbarous and negated humanity.”63 This circular from the minister of the interior, one of many available in the archives from the colonial era, instructed local authorities to use “humane measures” in governing Egyptians. One discrete population singled out as particularly deserving of “humane treatment” was the rural population of Egypt, the peasantry, or, as they were referred to by British colonial officials using the Arabic word, the fellahin. Donald Mackenzie Wallace, a British author who published a book in 1883 titled Egypt and the Egyptian Question, in which he discussed the national interests of Britain in Egypt, emphasized the colonial interest in the welfare of Egyptian peasants. He argued that failure to elevate the economic position of the fellahin was tantamount to Britain’s failure in its “mission.” No political or administrative reform could “ensure national welfare so long as the economic condition of the great masses of the people [was] lamentably unsatisfactory, as [was] the case in Egypt.”64 In the precolonial era, the fellahin “had to submit . . . to the habitual oppression and exactions of the native communal authorities,” and it was in Britain’s best interest to release them from that submission by reforming local authorities.65 The fellahin also were a subject of concern for Lord Cromer, the British consul general in Egypt from 1883 to 1907. Of the fellahin, Cromer wrote 88

conscripts

that their present and future generations would remember that it was the “Anglo-Saxon race” that liberated them from the “thralldom of their oppressors, that taught them that they too had the right to be treated like human beings.” Peasants would recognize that it was the Anglo-Saxon race that granted them the “material blessings which follow the train of Western civilization.”66 Colonial rhetoric based itself on the suggestion that elevating the status of Egyptian peasants to that of humans required a change in Egypt’s legal and administrative regime. The colonial state introduced many legal reforms to rid peasants of their inhuman pasts and present conditions. It reformed four realms of state practice: (1) banning state officials’ use of the whip against peasants, (2) fixing the taxes that the state required peasants to pay, (3) monitoring the work of rural administrators, and (4) abolishing forced labor (corvée labor). British rulers particularly celebrated their reforms in the fourth domain because it signaled the end of one of the most oppressive practices in Egypt, in which peasants were forced into working on local and state-sponsored irrigation projects and on the improvement of khedival estates, as well as in digging the Suez Canal. Of corvée labor, Cromer wrote: Among the many achievements which England has accomplished in the cause of suffering humanity, not the least praiseworthy is this act, that in the teeth of strong opposition, the Anglo-Saxon race insisted that the Egyptian laborer should be paid for his work, and that he should not be flogged if he did not work.67

Nathan Brown convincingly argues that the reasons for the ultimate abolition of forced labor had nothing to do with the “liberalism of the British” or the resistance of the peasantry. Instead, the late nineteenth century saw the expansion of a state in Egypt that no longer relied on “clumsy methods of compulsion” to mobilize and develop the country’s resources. Of particular importance was the opposition of the owners of the large estates, who were able to tie down the majority of peasants to the estates. This landowning elite resisted the demand to force their peasant-laborers into work on state projects, even though forced labor was employed in constructing these estates. As Brown writes, “The landowners’ motive was not simply a humanitarian or liberal preference for free or wage labor.”68 89

history

Brown’s account is revisionist in its discovery that the motivations for the reform were not ideological, as the British suggested. As he points out, “Abolition motivated by liberal ideology would have led to an attack on forced labour in all its aspects.”69 Forms of corvée labor, meanwhile, continued well into the twentieth century. Corvée labor was not abolished, however; it was regulated. The managing of the flooding Nile and the fighting of plagues continued to rely on corvée labor.70 For example, in 1891 corvée labor was used to guard the Nile bridges during a flood. The Ministry of Public Works discussed whether to employ wage labor for this work during the Nile flood but decided that it would result in excessively heavy expenses for the treasury. “The assistance is required from Egyptians as it is required from inhabitants of European countries which are subject to river floods, such as Holland, Italy and other countries.”71 In 1888, the number of men working per one hundred days was 58,788, whereas in 1896 it was 25,724. When the Nile rose to an exceptional height in 1892 and 1894, the numbers of men forced into labor for one hundred days were 84,391 and 49,448, respectively. In 1897, 19,326 men were forced into labor. The number went down to 7,893 in 1899 and up again in 1900 to 14,180. The reason for the decreased number in 1899 was that the Nile was exceptionally low.72 The fact that the state did not entirely abolish corvée labor testifies to the fallacy of the humanitarian argument. Yet the trouble with Brown’s revisionist account is not with what it reveals but with what it entertains. His account preserves a rigid separation between liberalism and humanitarianism, on the one hand, and political economy, on the other; the latter cannot influence the former. Considerations of economics have no bearing on what gets defined during that period of time as “the suffering humanity.” Brown relegates the category of humanity to levels of rhetorical justification that otherwise mask the real economic reasons in play. He does so without investigating the meaning of humanity that emerges out of the exploitation of peasants and economic calculations. Humanity persists as an ideal detached from exploitation, employed discursively by colonial officials to mask the real exploitation that continued to take place after the abolition of corvée labor. But what if the “accomplishments in the cause of 90

conscripts

suffering humanity” were precisely the reinvention of corvée labor rather than its abolition? What if what was humane in Egypt was precisely, now, regulated corvée labor? Wouldn’t this allow us to see, following Pheng Cheah’s theorization, how the human overlaps with, rather than being liberated from, the field of instrumentality, or inhuman conditions?73 Might we also discover that the human is the excess that remains in the law, and is therefore produced by it, after the expulsion of exploitative practices that the law has declared inhuman—that is to say, that the human is that which the law has not named, or has yet to name, inhuman?74 And if this is the case, then the human will be found only in history; it is not a floating transcendental ideal, outside of history. The production of the human as an ideal is part of a view of the world that splits it, as chapter 6 argues, between the ideal and the material. The reforms that the colonial state introduced to regulate corvée labor can thus shed light on the human established as their end, the “suffering humanity” that was to become “human” through the alleviation of its suffering. On January 25, 1881, prior to the occupation, the khedive issued Decree No. 24, which restricted the use of corvée labor. Article 5 stated that “‘awna (assistance) is required of all healthy males between the age of fifteen and fifty, excluding those who are exempted in accordance with Article 6: scientists, jurists, instructors, students, and those who work for charity organizations such as hospitals, priests, khafir, residents of famous cities who possess no land, and those who are chronically ill.” The decree also provided that a person could agree to replace another who requested a waiver, as well as enabling owners of large estates to pay a certain tax in exchange for the assistance of the peasants employed on their estates.75 In 1885 another khedival decree enabled the payment of a tax in certain districts in exchange for waiving the forced labor duty. This was an experiment carried out in certain localities, where men were able to redeem themselves by paying an amount ranging from fifteen to thirty piastres per man. As for villages that did not wish to redeem themselves, they had “to furnish their forced labor in kind.”76 Because there were difficulties in levying the tax on individuals, it was ruled that ransom money would be due from the whole village, in proportion to the male population in the village. The tax would be levied from the landowners in proportion to 91

history

the size of their holdings. With the tax/ransom fund, it became possible to maintain the canals by hiring wage-laborers.77 There were exceptions to these decrees. An 1887 decree provided that if the water level in the Nile reached the height of twenty-four levers or there was a fear that the Nile might flood, the mudirs were allowed to require the assistance of capable persons to manage the flood, pending the approval of the Ministry of Public Works in cases where the river had not yet flooded. Failure to report to duty or preventing others from reporting to duty was met with imprisonment of twenty days to three months, or a fine of one hundred to one thousand piastres.78 Similarly, a decree from June 16, 1891, concerning the destruction of locusts, provided that district officials could order any person to assist in the destruction of locusts; a refusal would be met with imprisonment for ten to thirty days or a fine of twenty to two hundred piastres.79 In 1892, another khedival decree mandated the abolition of corvée labor in the entirety of Egypt except for tasks required during the Nile floods.80 Some of these measures are discussed further in chapter 4. For the purposes of this chapter, these reforms reveal the abolition of corvée labor to be a rule and its establishment, by law, to be an exception. General conscriptions are inhumane, a sign of “suffering humanity.” The exception to the inhumane is legally regulated corvée labor, the excess that remains from the inhuman—the human. For under a regime of juridical humanity, when the human is declared as the end of the law, that which remains in it after the expulsion of the inhuman is the ultimate human. The human, in other words, is not separate from the inhuman but is produced through law’s expulsion of the inhuman. And because the expulsion of the inhuman is never complete—as regulated corvée labor persists—the human further emerges as the remains of the inhuman. What remains is the peasant laborer who is forced into work as an exceptional measure and whose freedom, rather than labor, is now commodified in the form of a tax. In these reforms, the quest for freedom from forced labor is articulated in terms of exchange value. The ransom, or tax logic, transforms freedom into a thing that can be acquired, bought, and exchanged—in short, commodified. Far from being excluded from the law, the human whose freedom is commodified is the excess that remains after the inhuman has 92

conscripts

been defined by the laws that abolished and expelled unpaid labor. The institution of the exception, or the laborer whose freedom is commodified, is the excess, the means by which the human is established. This formulation departs from Hannah Arendt’s theorizations of the human while also converging with it. In her account, the human is the figure excluded from the law; in mine, the human is the excess that remains in the law after the inhuman has been expelled. But for Arendt, too, the human is bare life that can be disposed of; the human may therefore be the inhuman. How is this the case? In her remarks on “The End of Rights of Man,” Arendt discusses the dynamic of continued violence against the “Man” of the French Declaration of Rights.81 She explains his continual endangerment by the loss of citizenship, observing that the Nazis began the extermination of Jews by first depriving them of all legal status, namely that of second-class citizenship. A condition of “complete rightlessness,” she argues, was created “before the right to live was challenged.”82 Similarly, refugees in Europe had lost their homes and government protection because they no longer belonged to political communities. Both the refugee and the European Jew lost their protection as “humans” upon losing their states. Critics drawing on Arendt’s work have maintained that a person cannot enjoy the protection of “human rights” when he ceases to be a citizen,83 and when he is forced outside the pale of the law.84 The world that Arendt describes is one that follows the categories of the French Declaration of 1789, organized along the divide between citizen and human. It is also grounded in the assumption that only citizens are included in the juridical order of the state. But the condition of “complete rightlessness” does not equate to expulsion from the law; to equate the two is to assume that the sole objective of the law is to grant and guarantee rights. If we view the law as a means of governing the population within its reach, then even the human—Arendt’s “rightless” creature—begins to appear as a subject of modern law. My argument about the rise of juridical humanity signals another relationship between the human and the law. The human, I have been arguing, became the teleology of modern colonial law; it was inscribed in the law as part of the civilizing process. In Arendt’s analysis, when one’s life is reduced to mere biological “animal” existence, he or she ceases to be recognizably human. While 93

history

Arendt might be holding on to a certain idealized notion of humanity as essentially political against which to evaluate the human refugee and the stateless, she also observes that the human of the French Declaration equals animalized life. While I have been using the inhuman, as opposed to animality, to describe the exploitation of Egyptian peasants, Arendt’s understanding of the human as the figure who can be disposed of is crucial to my account. This life that can be disposed of is precisely the life housed in the concept of juridical humanity. It is the excess of the inhuman inscribed as the end of the law. Nowhere is this excess more evident than in Cromer’s writings about forced labor and its persistence in Egypt. In an article titled “What Is Slavery?” published after his departure from Egypt, he asks: “When and under what conditions is forced labour justifiable?” From time immemorial, “a distinction has been made between slavery and compulsory labour.” Recourse to forced labor “in any form, and under whatever safeguards, is a manifest evil.” Yet “resort to an admittedly vicious system becomes not only justifiable, but also inevitable, when it can clearly be shown that the whole community will suffer far more from its abandonment than from its adoption.” This is why forced labor, according to Cromer, is permitted in some of the British colonies and possessions. Forced labor cannot be stigmatized as slavery “when all possible safeguards against the occurrence of abuses” are put in place, and when “it is employed for recognized and indispensable purposes of public utility.” The system, however, becomes that of slavery when laborers are employed “for private profit.”85 Cromer’s writings on forced labor may be indicative of his utilitarianism.86 But this article also reveals, despite itself, an affinity between the inhuman, or slavery, and forced labor. On the one hand, the collapse of the human into the inhumanity of slavery is not inevitable; legal regulation and public utility safeguard against this collapse and establish a difference between inhumane slavery and humane, legally regulated forced labor. On the other hand, this text makes it evident that legally regulated forced labor is indebted to slavery, the human to the inhuman.87 In colonial Egypt, there was no notion of the human as a starting point from which we can chart its thwarted instances as dehumanization; instead, there was a process of producing a human always thwarted by 94

conscripts

the inhuman or the nonhuman. That is why this human could never effectively overcome its own self-proclaimed prehuman history. It is from that history that the human has emerged, and it is to that history that the human is most intimately tied despite numerous narratives about overcoming, evolution, and progress. coun t er-history: t he lost hum a n The story of inscribing the human in law has thus far been one of conscription. Looking back at the colonial past, it would appear that juridical humanity is one legacy of colonialism. Colonialism universalized liberal modernity and juridical humanity, while recruiting Egyptians, among others, to its ethics, discourses, and institutions of juridical humanity. It attempted to make Egyptians, in Talal Asad’s formulation, “conscripts of Western civilization.”88 In this universal conscription, the history of Egypt reveals the important role modern law played. Law was, as Asad reminds us, an “element in political strategies” aimed at “destroying old options and creating new ones.”89 The new options determined the course of history and remain constitutive of the present, while the old ones were lost to many of us moderns. Juridical humanity came to dominate thinking about the human in colonial Egypt and, it may be argued, elsewhere as well. But juridical humanity was not the only prevalent understanding of humanity at the turn of the twentieth century in Egypt. There were also other ethics not easily assimilable to the theories and practices of juridical humanity. Not a concept but a quest, these ethics belonged to mystical Islam and articulated a vision of the “lost human,” while being crafted under the particular conditions of the historical colonial moment. Not the “other” of colonial humanity, these ethics were communicative by the mere fact of their coexistence with the Kantian, juridical, and Darwinist understandings of the human as an end in itself, as an end of the law, as the end of evolution. While they may not have determined the course of history, they created a field of potentialities for the thinking of other forms of life. The text I investigate next is not a mystical alternative, but a counter-memory of colonialism, and does not represent an unchanging mystical tradition. I consider it in proximity to juridical humanity in order to show some dif95

history

ference between two intellectual/political formations occupying the same problem space of colonialism. Little mentioned in the history books of Egypt, Tantawi Jawhari was a mystical Islamist and modernist who attempted precisely to understand another life. Jawhari (1862–1940) was the author of a twenty-six-­volume commentary on the Qur’an (1923–1935), and two less well-known books, Ayna al-insan (Where Is the Human?) and Kitab al-arwah (The Book of Spirits). Ayna al-insan is framed by a conversation with a spirit that appears to Jawhari while he is asleep and awakens him by asking him, “Where is the human?” When asked about his identity, the spirit, a young man in his twenties who has come from the stars, answers that he has two names: truth and existence (wijdan). Some of Jawhari’s conversations with the spirit are explorations of the human. The spirit asserts that the truth of humankind is revealed neither in philosophical definitions nor in scientific opinions. Rather, the truth can be explored in relation to universal substance and the air surrounding the planet. By substance, he means a matter that is singular in its origins but has developed, changed, and taken different forms, in animals, human beings, rocks, stars, fish, and so forth: Substance is one and good for everything. If the heavens were annihilated, the earth destroyed, the animal lost, the plant gone, and if the human perished, beauty faded, glory withered—everything will nevertheless remain in the substance, settled in the primordial matter, and then its trace will remain visible and its element present.90

This substance is unknown to the human, its truth mysterious: “Human beings cannot decipher its essence, and reveal its secret.” They can only know “its apparent characteristics.”91 The spirit proceeds to explain: If we, the learned of the skies (‘ulama’ al-samawat), were to see a stone in a mountain, our sight, hearing, and hearts will be different from yours. It [the stone] is plant and fish and animal. It is fruit, spirit, and sweet basil; it is also gold, silver, brass, tin, heaven, fire, earth, sky, animal, and human. You see it [the stone] an erudite scholar, a fruitful tree, a howling wolf, a singing deer, a lurking lion, a perfect human, a despicable ignorant person, and an acceptable scholar.

96

conscripts

You see all of this because the stone is fit for everything we have described, and it can take all their forms.92

Since substance is capable of taking diverse shapes, including the human, it, the spirit asserts, is capable of good and evil, height and lowliness. Knowledge enables the human to take a better form. But just as substance can be damaging in the form of scorpions and snakes, so can the human inflict evil and disasters with knowledge.93 Through “substance,” Jawhari is able to introduce three important caveats. First, the human is capable of good and evil, because substance can take both forms. Where there are idealized ethics for the human, it, in life and on earth, can be both human and inhuman, good and evil, make war and peace. Second, no force awakens the human. It is rather present, always, as part of substance, just as animals, stones, spirits, plants, and angels exist. The human, then, is an organic life sharing with the inorganic; it is not opposed to the nonhuman.94 It is the stone in the mountain; it is the inanimate, the matter that lacks life but not substance, the dead form. Third, it is humanly impossible to decipher substance. It is hidden, and humans have access only to its signs, the visible manifestations, including the human itself. Jawhari’s human is not only contingent to the world but is an appearance, like other appearances in nature. It is, therefore, not “man as such,” to use Michel Foucault’s description of “man” who comes into existence at the end of the eighteenth century. Jawhari’s human is incapable of fully representing, and all other representations can only be understood by “the learned of the skies.” For Foucault, man appears in the modern age as an “empirico-transcendental doublet.” He is simultaneously the subject that knows and the object of knowledge, the empirical knowledge of the human sciences. Man can begin to be known empirically; his exceptional hidden truth is revealed.95 But in Jawhari’s account, the truth of the human is hidden and cannot be known as such. Knowledge can only enable access to the appearance, the manifestation, the representation. The tragedy of people on earth, Jawhari suggests through the words of the spirit, is that they insist on being trapped in their bodies. But for Jawhari the human is a relational substance, shared with others: plants, 97

history

animals, stars, mountains, stones, and so forth. In this sense, the human extends beyond his body, for his existence, as substance, knows no limits. The prison of earth prevents the human from departing before death. This bodily confinement must be escaped, since with it the human ceases to think with the animals, the plants, and the stars; he imagines, instead, his limited bodily confinement to constitute his humanity. Jawhari’s call is to register the unlimited capacities of the human soul, which transcend bodily chains. Lost while present in the midst of substance, Jawhari’s cosmomorphic account also employs air to signify the truth of the human:96 The difference between a defective human and a perfect one is similar to the difference between the air inside a room surrounding oneself and the air that leaves the trachea, feeds human bodies, mixes with blood cells, generates alphabetical letters, in its rhythms, explains to its listeners wonders of wisdom of its verses, and the pearls of meaning and hazards of science of its bells.97

When allowed to leave its prison to circulate, air, like the human, can connect, feed, speak, explain wisdom, convey pearls of meaning, and sing. But this is no work of representation wherein air stands for the possibilities in the human or wherein the human is represented by air. Rather, a continuity between the human and air is at the core of Jawhari’s thought. Of air, the spirit says: “Air in the atmosphere goes here and there, has known benefits, recognizes distinct blessings; it carries the clouds, ele­vates water drops, kisses the voice, and it is the guardian of languages, the preserver of kinds of sounds, such that it distinguishes between one sound and another, one language and another, one smell and another.”And if this is what the air does, so the human can follow suit: “It can move from the barbaric place it settled in to the status of the free.”98 The human, like the air, can choose either to stay in the room or circulate outside. It can choose, in other words, either to be imprisoned in its body or to connect to the cosmos. The spirit concludes: When I approached earth and I saw you forced into suffering, living eternally in the hell of ignominy, I realized that you were prisoners of this earth. Destined to imprisonment in your bodies, you do not depart it before death. If you do not es-

98

conscripts

cape earth, the chains will add up. You have imprisoned yourselves in ignorance and corrupt governments. Ignorant of your worth, you arrested and tortured it. You abandoned your capacities and buried your wisdom.99

Jawhari draws upon and activates some dimensions of the mystical tradition during the Egyptian colonial historical moment as well as the international politics of the first decade of the twentieth century. His text constitutes both an indictment of humanity and a call for a different humanity. Nowhere in the text is the inhuman divorced from the human. And yet there is a possibility for a different human in the future—a cosmomorphic human. This human is equally an ideal, with civilizing and disciplining aims, who is lost in the midst of substance, yet present as one of its manifestations. This human cannot degenerate into the inorganic or inanimate because they already belong to the human. Absence, the inorganic, is constitutive of the presence of the human. The human is lost but is found in its loss, and as such is unfit for a humanitarianism that is based on the figure of the present-absent human. Jawhari’s human is also significantly different from the human person, especially with respect to the relationship between life and death, the organic and inorganic, in the constitution of the human. In Usul al-qanun (The Principles of Law), Mursi and Mustafa defined the “real person” (al-shakhs al-haqiqi) as all human beings, so long as they remain among the living. The condition of “social death” that characterized convicts did not abolish their legal “personality”; they enjoyed rights necessary to their life. Furthermore, “slaves were considered ‘things,’ and yet they were thought to be human beings, on some level.”100 The term al-shakhs ­al-haqiqi, which I am translating here as “real person,” was used to translate the French personne physique, which the authors defined as the human being, the speaking being. Birth defines the person, and specifically, the birth that results in a viable life; with death, the person and consequently the human cease to be.101 Jawhari’s account, by contrast, relies on a continuity between death and life, the inorganic and the organic. His call to release the human from the confinement of its body is one that thinks death in life. To see the human in a stone in the mountains is to rupture the boundary between what is 99

history

dead and what is alive and to conceive of intimacy between the inanimate and the animate. This is not to suggest that death is not operative, but that it is not the limit of the human, just as birth is not. The human has no bounded existence that can be delimited. Like Amin, Jawhari read and appreciated Darwin and inquired into the ramifications of his thought for understanding the human. In this, Jawhari was not exceptional, as Darwin stood at the center of the Egyptian intellectual scene. His writings were translated into Arabic and various journals publicized and discussed his ideas.102 But to say that Darwinism occupied center stage in Egyptian intellectual life is to say very little; more important are the terms by which Darwin was read, translated, and mobilized. While some, like Amin, focused on evolution and adhered to social Darwinism, others were fascinated by the place occupied by nature in Darwin’s thought and the connections as well as the continuities among the different spheres of the universe.103 Jawhari was of the latter school. In an article about Darwin’s theory, Jawhari responded to an article that had appeared in the newspaper Al-Muqtataf, discussing his book Nitham al-‘alam wal-’umam (The Order of the Universe and the Nations) and challenging it as scientifically groundless.104 In the article, Jawhari summarized his understanding of the hierarchy organizing the animal and plant world in classical Arabic thought and compared it to Darwin’s elaboration on the relationships between different elements of nature. Jawhari further argued that the Arabs considered the circle of being to constitute one hier­ archical chain consisting of ether, elements (‘anasir), minerals (ma‘adin), plants, animals, humans, and the sovereign (al-malik)—all connected to each other. The difference between the Arabs and Darwin was that Darwin limited his explorations to the realm of plants, animals, and humans. This, however, was not to belittle Darwin’s achievements, which like those of the Arabs followed the “principle of matter” (mabda’ al-madda). In this respect, argued Jawhari, Darwin belonged to a group of important European scientists who made discoveries about other forms of matter, such as the stars, the galaxies, and so forth. Jawhari explained that he did not fully adhere to Darwin’s theory nor did he dismiss it. Rather, he found some of its elements to be characterized by “certainty” (yaqin) and others to be “doubtful” (shakk). There 100

conscripts

was certainty about the continuity, harmony, and order that Darwin located in the relation of animals to plants. Furthermore, observing the wonders of animals and plants was beneficial to the human soul, which loves perfection and beauty. Such beauty and perfection in turn resulted in the happiness of minds and the elevation of “normal and political activity,” which was the aim of science and wisdom. The doubt concerned the means leading to such harmony, order, and beauty and the conclusion that such order was self-generated. To establish this doubt, Jawhari quoted Darwin’s own qualification: Analogy would lead me to one step further, namely, to the belief that all animals and plants have descended from one prototype. . . . Therefore, I should infer from analogy that probably all organic beings which ever lived on this earth have descended from one primordial form, into which life was first breathed by the Creator.105

To this paragraph, Jawhari added another sentence that did not appear in the English original, though it may have appeared in the Arabic translation he consulted: “Agreeing or disagreeing with this fact is not of essence.”106 But meanwhile, it has been maintained that Darwin’s second edition of The Origin of Species, which was published only a few weeks after the first, included references to a Creator.107 Darwin, of course, wrote other passages that challenged a vague resort to the unspecified work of a Creator: “But many naturalists think that something more is meant by the Natural System; they believe that it reveals the plan of the Creator, but unless it be specified whether order in time or space, or what else is meant by the plan of the Creator, it seems to me that nothing is thus added to our knowledge.”108 But here, too, as Jawhari would have argued, the point was not to dismiss the work of the Creator but to make it irrelevant so long as it was not specified. Darwin’s theory is less central here than Jawhari’s take on it. Specifically, my concern is with the method with which Jawhari conducted a conversation between parts of Darwin’s thought (the ones he declared certain) and the tradition of Arab scientific thought, in order to advance his mystical view of the human. This version of Darwinism departed from more conventional evolutionism in Egypt, which conceived of the human 101

history

as a product of historical-juridical becoming, the status of person that one achieves through a historical transformation and the operations of juridical powers. This view was in line with the Darwinian articulation of sexual and natural selection as Egyptian and Syrian scientists publicized it in Arabic. But this is precisely the principle that Jawhari rejected in Darwin, even while accepting his discovery of the chain of being and the human’s implication in it. A brief examination of more conventional evolutionism in Egypt should help to clarify this point. In his introduction to the Arabic translation of The Origin of Species, published in 1918, Isma‘il Mathhar summarized and explained evolutionary theory to Arabic readers. To argue that evolutionary theory was not foreign to Arabs, he explained how they were the first to have established that the world of animals, plants, and the inanimate was a unified one, divided only by thin, tentative boundaries that often overlap. Because they were lacking basic scientific methodologies, however, they were unable to reach scientific conclusions. To validate his point, Mathhar quoted a text by Ikhwan al-Safa (the “Brethren of Purity,” authors of one of the most complete medieval encyclopedias of science) describing the structural hierarchy and continuity among different realms of the creation. Mathhar then concluded that their thought already contained the seeds of evolutionary theory.109 Significantly, ­Mathhar translated hierarchy into evolution. He depicted the zones of indistinction that Ikhwan al-Safa located between animals and plants, and animals and humans, in evolutionary terms; he rendered the structural hierarchy organizing the relationships among the different spheres into evolutionary transformation. Mathhar finally declared Al-Hikma al-Ilahiyya (Divine Wisdom), to which Ikhwan al-Safa attributed this hierarchy, to be Darwin’s “natural selection.”110 Translating hierarchy into evolution was accomplished through the depiction of divine wisdom as a historical force that transformed matter through time. The creative divine force becomes, in the hands of Mathhar, a force that not only belongs to matter itself but also more crucially moves matter in the course of time to perfection. At stake, then, is not so much the death of God, but the assertion of the power of history-as-evolution to change matter. Jawhari’s insistence on maintaining doubt about the 102

conscripts

means leading to the order and harmony of the chain of being can then be read not only as a plea to preserve the authority of the Creator but also as a rejection of history-as-evolution, whereas the hierarchy, as well as the connections, in the chain of being—consisting of ether, minerals, plants, animals, and humans—are maintained from the start. Instead of focusing on the evolutionary aspect of Darwinian theory, he focused on the aesthetic order and harmony characterizing creation. If evolutionary theory moved the chain of being through time, Jawhari’s chain of being remained in time.111 The first was historicist, the second cosmological. Because Jawhari insisted on viewing continuity in the chain of being as the remains of time, or as existing regardless of the movement of time, he was also able to see the human as a form of life and of nonlife simultaneously: the human belonged to both the realm of the organic and the inorganic—to the rocks, the stones, the plants, the air, and the stars, to the animate and to the inanimate. There is no linear movement between life and nonlife, or death, in which the human emerges and decays. Rather, the human, at any given point, is made of matter, or of substance, that is shared as well by other forms of life and nonliving forms. The inclusion of the nonliving form, the inanimate, releases the human from the movement of history-as-evolution and hence from the powers that may claim an intervention in the making of the human, or in the making of life. This understanding, accurate or inaccurate, does not avail subjects to projects of humanization, including the colonial ones. If the human is present precisely in its loss of substance, then according to this doctrine, the acts of finding, locating, positing, and making make no human. Crucially, there is a delineation of that which resists being made into the human. At this point, the epigraph of this chapter begins to make some sense. The Conference of the Birds is a book of poems by the Persian Sufi poet Attar, dating to the second half of the twelfth century. Historically speaking, Mantiq al-tayr was irrelevant to the unfolding of Egypt’s colonial history. Nevertheless, the epigraph reveals a certain sensibility regarding the human and the universe whose juxtaposition with the meanings of “juridical humanity” is theoretically productive. Specifically, Attar’s loss in the attempt to know “the essence of the atom” is a loss that is lost with the rise of juridical humanity and its project, which, as I have been argu103

history

ing, consisted in fixing the human in its juridical status and transformed the human into the telos of modern positive law. Jawhari and Attar are not the same. Jawhari owes much of his thinking to the specific modern period he inhabited. But what they both share is the mystical tradition, even though it was articulated and activated, for each one of them, under the specific political and social forces of their times. The differences notwithstanding, when Attar writes that “one is like a figure painted on a wall, and one can only bite the back of one’s hand,” he is suggesting, as Jawhari does, the impossibility of knowing the atom. This impossibility, however, does not stop the search. And the search, the impossible journey, is the way to live life. Jawhari’s account did not belong to a radically different tradition from the modernist one. It was the blending of the times that characterized his writing. Shadows of the French Revolution are visible in the text, as is his admiration for the possibilities it put in place. In chapter 10, Jawhari responds to the spirit’s condemnation of humanity by praising the legal system and its equal treatment of all subjects: “Since the eighteenth century, the judges’ social position has been elevated, and as soon as the French revolution took place, there occurred a revolution in thought; minds have awakened, and the wise have revolted.”112 He continues to explain the progress made in the nineteenth century. Prisoners became like patients, prisons like hospitals, and crime like disease. Soon after, and through the voice of the spirit, Jawhari challenges his own story of progress. A just society requires not only a merciful judge but also a perfect teacher and a just governor. The latter is the most crucial: “The government to the people is like the head to the body.”113 As to the power that judges have over government, Jawhari’s response is that no court will judge a parliament that terrorizes a human nation or a king who leads his armies to destroy another. A just government, or governor, is more important than the judiciary or the rule of law. He adds: “The governor to the nation is like a teacher to a pupil. How is it logical that you [on earth] couple together two opposites and follow negations? You have a just judiciary and you justify the oppression of nations.”114 Jawhari’s emphasis on the need for a just government is distinct from Milner’s call to reform the government. Whereas Milner’s focus is on the rules of an orderly government, 104

conscripts

Jawhari’s is on justice. And whereas Jawhari’s ethical and intellectual interest in the question of the human belonged to the times of modernity, his answers followed a different route. Like Ra’fat, whom I discuss in chapter 1, Jawhari inhabited two temporalities, authoring the demise of one and recording the dominance of the other. His question about the human signals a twentieth-century modernist preoccupation, and his answers, mystical explorations. t er ror In his exploration of the sixteenth-century humanist legal tradition, Peter Goodrich writes about its investigation of the question of signs, text, and personality. He argues that “the legal definition of the person is determined by the theory of images as the form of human appearance, of human presence.” The legal person is a mask “governed in its representation . . . by the law of the image and the drama of masks.”115 The legal subject is a visual fiction drawn upon the natural person. The image crosses the boundaries of natural and legal personalities. In this sense, the law and its memory are inscribed, held, kept, and preserved in the images. This, Goodrich tells us, is taken from the centrality of iconography to the Western church. The sign, the image, “represents an invisible presence” and “manifests a deep structure or law which otherwise escapes the senses, and could not hold (fascinate) the imagination or soul of its subjects to the order of natural forms.” An appreciation of this aesthetic dimension whereby the text is made into an image allows for an understanding of the procedure by which the law “inscribes itself upon everyday life.”116 The text in turn is read not for its rational content, but through its visual images and icons, its tropes and figures. The imagery attaches and binds the reader to the text and to the law. The law inscribes itself “on the soul” and calls the subject of the law into being: “In instituting life, the law found subjectivity as a place, as sign or mark, from which the subject speaks. In analytical terms, the subject is unconscious, for only through law does the subject gain a name and know its place, the space from which it came.”117 This is the power of the law that I have been describing in this chapter, though without considering the aesthetic dimension, that is, the power of the law to call a subject into being where he or she can begin to speak, 105

history

the power of the law to hail and interpellate the subject, as Althusser puts it. This power belongs to the way in which law transmits itself, “captures its subjects and engenders a love that will carry on being from birth to death.”118 But if there was love for the law in Egypt and if the writings of the Egyptian lawyers I examined in chapter 1 are writings of love and affective transmission of positive law, the law was also accompanied by terror. Legal subjects had no place outside the law and could only speak from within it, as Goodrich explains. But the human, too, ceased to be outside the law. This is the terror of the law. It can finally accomplish the work of dehumanization, unless one pursues other texts wherein to become an image, wherein to be inscribed upon. And there is more terror to this love. In Goodrich’s story, the subject becomes an image born once in nature, the natural person, and a second time in law, the mask (personnage). In the story of Egypt, the two have blended together and become the category of the person. The gap between the natural and the artificial was erased, and the two became the human person, as Mauss explains. The terror, then, is in the answer to the following question: If the juridical human contains both the natural subject and the legal person while at the same time erasing the distinction between them, to what plane does the human degenerate upon the withdrawal of the law?

106

chapter 3

Wounds

The saying that “dead men tell no tales” has the lie given to it on every battlefield; this one was no exception. I directed my course to the part of the field and the entrenchments across which the Second Division had come. Vast numbers of Egyptian dead cumbered the ground from immediately behind the parapet where Highland Brigade entered to quite a mile within the works in the direction of the bridge. This portion of the position has an inner double-line of works extending obliquely along it, facing north, and it was among these lines and gun emplacements that the dead lay thickest. They were often in groups of fifteen or twenty, heaped together within the angles of small works into which they appear to have crowded; the main line of entrenchments had also great numbers of dead behind it. . . . Of wounded there were very few to be seen. Too many waves of armed men had crossed this portion of the field. c o l o n e l w i l l i a m f r a n c i s b u t l e r , Autobiography

a l e x a n d r i a was bombarded in July 1882 and much of it fell into ru-

ins. The British commander, Admiral Seymour, had asked the Egyptian r­ebels, who had formed a nationalist government in Cairo and overthrown the European-imposed khedive, to surrender the forts. The khedive, for his part, had also secretly asked the British to shell his subjects into submission. The rebels refused. At 7 a.m. on July 11, 1882, Seymour’s eight ironclads began their bombardment of Alexandria “to restore European prestige.”1 History books tell us that the Egyptians fought well, but after ten hours of bombardment the forts fell silent. The casualties on the British side were five dead and twenty-five wounded. Among the Egyptians, about two thousand were killed and wounded. Writing about the bombardment he had supported, a member of the British government, Sir Charles Dilke, observed that the bombardment “like all butchery is popular.”2 But despite the butchery, the work of invasion required more battles. Britain would emerge victorious only in the battle of Tel el-Kebir in September of 109

nature

that year. British troops had surprised the Egyptian army and carried out what John Newsinger describes as “text-book technological massacre, a model of well-executed colonial warfare.”3 British casualties consisted of 57 killed and 382 wounded; the number of Egyptian casualties ranged between 2,000 and 10,000. An Irish officer in the occupying army described the horrors of the battle in his memoirs, from which the epigraph at the beginning of this chapter is taken. The wounds and deaths due to the battles of the occupation are not themselves the subject matter of this chapter. The state embarked on a humane juridical mission to alleviate suffering and heal wounds other than those that resulted from battles, which, for their part, continued to lead to deaths. Nevertheless, the historical wounds of the occupation do raise the following question: How could a regime that carried out so much violence in its occupation of Egypt enact so many humane reforms in governing it? Talk about wounds circulated among colonial officials in Egypt and Britain immediately after the British occupied Egypt and restored Khedive Tawfiq’s authority. The concern was for the wounds of Egyptian prisoners who were captured during the battles. The archives reveal that as early as October 10, 1882, Sir Edward Mallet, the British governor of Egypt, sent a letter to Earl Granville, the foreign secretary of state, to which he attached a circular dispatch. Mallet had sent this dispatch to British consuls in Egypt requesting that they forward lists of the arrests made within their consular districts in connection with the recent rebellion. The dispatch also called attention to the “orders given by the Khedive and His Highness’ Ministry against the exercise of torture or cruelty towards prisoners.” Should an instance of application of “thumb-screws or other torture” come to their notice, they were to report it to Mallet.4 Reporting on conditions in the prisons, Lieutenant Colonel Sir Charles Wilson, who had visited many prisons since the British occupation, stated that “arrests that were ordered were carried out without any undue harshness to the prisoners” and that no, he had not heard of any cases in which thumbscrews were applied, and that, except for condemned criminals, he had seen no men in chains.5 Other British officials reported that they had heard about forms of cruelty used against the prisoners but that they were unable to verify them. Still others reported on torture, unhealthy conditions 110

wou nds

in the prisons, and, more generally, inhumane treatment. Consequently, immediate instructions were given to treat prisoners “humanely” and decrees were signed to this effect. Other, more specific humane legal reforms would follow, with the declared objective of transforming the treatment of all prisoners and criminals in Egypt. This chapter traces some of these reforms and examines the human named by them and the wounds that persisted in their midst. I ask: How did the project of juridical humanity define and employ the suffering of Egyptians? What sensibility toward suffering did humane reforms promote? Did the definition of the human preexist humane legal reforms, or were those reforms also the medium through which the human was defined? What was the human’s relation to the animal, whose treatment was also targeted by humane reforms? And how is it possible to explain the persistence of wounding? In answering these questions, my argument, briefly, is as follows. Guided by the Benthamian “pleasure principle,” the project of juridical humanity put pain and suffering to use. That is to say, reducing suffering became instrumental to increasing pleasure, and, more importantly, becoming human by law was equated with the reduction of suffering; unreduced suffering, therefore, signaled dehumanization. The reforms that put suffering to use in this way also reflected and constituted a sensibility of humaneness, which located suffering on the side of the inhuman, thus carving out spaces for colonial intervention. Humaneness, then, not only fought suffering but, more crucially, associated this struggle with the achievement of a human status as its target. The human became the end of humaneness as ordered by humane legal reforms. This, then, was one instance of the human as the telos of modern law—one instance of juridical humanity. The first task of this chapter is to develop this argument, by recovering the colonial career of humane sensibilities toward suffering that worked to recognize the humanity of the receiving subject and to inscribe it in the law. To accomplish this and other tasks, I focus on two sets of legal reforms. In addition to discussing the reforms prohibiting cruelty to criminals and prisoners, I also look at reforms intended to prevent cruelty to animals. As a matter of history, Egypt saw the rise of humane societies and legislation aimed at criminalizing certain forms of cruelty to animals and edu111

nature

cating Egyptians to be more humane on the way to becoming “properly human”; not only did cruelty dehumanize its victims, but its practice also dehumanized its agents. Learning to be human entailed learning to distinguish between humane and inhumane cruelty directed against fellow Egyptians and animals. The second, related task of this chapter is to inquire into the making of this distinction and the reconfiguration of pain and suffering that resulted. The appearance of animals and Egyptians together on the stage of penal reform was not unique to Egypt. The humanitarian movements of the nineteenth century expanded, as many historians of Europe have shown, to include animals.6 Both animals and humans were to be treated humanely; no longer did animalization exclusively signal the fate of subjects who had been treated inhumanely. The third task of this chapter is to examine the meanings of the joint appearance of animals and Egyptians in legal reform in Egypt. I argue that in the case of animals, humaneness did not itself derive from the identities of its targets but from the class of species meant to master it and abide by it. Humans possessed humaneness, whereas animals and dehumanized subjects received it. Humaneness, in other words, marked the species difference between animals and humans while collapsing the distinction between them. The investigation of legally induced humaneness in relation to animals and humans enables the examination of both the boundary of the human in relation to nature that shaped colonial law and the accompanying sensibilities toward pain shaped by the presence or absence of a boundary. The colonial history of Egypt is not a history of the gradual erasures of violence and wounds. Egypt witnessed the introduction of many forms of pain-inflicting violence alongside the prohibition of others. The wounds of criminals and animals persisted despite their prohibition. This persistence did not result from a failure of the law to implement its injunction. Rather, the very law that prohibited some types of violence also authorized others. If this was no failure, how did violence persist in an era of humane reforms? And what was the relationship between the persistent violence and the human that was to be delivered out of excessive pain and suffering? Answering these questions is the fourth and final task of this chapter. 112

wou nds

hum a ne r efor ms The first reforms the colonial state introduced were in the criminal justice system, more specifically in prisons. The objective was to institute more “humane” living conditions for the prisoners while at the same time attending to considerations of utility. Frederick Goadby, an English lecturer at the Khedival School of Law in Cairo, explained the new principles of Egyptian positive criminal law. His publications include two books that he wrote while in Egypt—Introduction to the Study of Law and Commentary on Egyptian Criminal Law. Citing French jurist M. Garraud as his authority in the Commentary, Goadby compared criminal law before and in the aftermath of the French Revolution, arguing that prior to the revolution, the law was cruel, arbitrary, and unequal in its application. In England, the state of criminal law was better but still included harsh punishments. In Goadby’s narrative, the advent of Italian reformer Cesare Beccaria directed attention to the “brutality” of the criminal justice system. The continuation of his work in England resulted in a profound change of attitudes. Egyptian criminal law of the reform era embodied that profound change, with some departures owing to the country’s particularity.7 This story of progress and of a decrease in cruelty engendered by Europeans’ Enlightenment ideals was repeated by Egyptian and European lawyers, as discussed in chapter 1. Since then, scholars of European legal history have questioned this story and revealed that humanitarian reforms of the late eighteenth and nineteenth centuries carried other operations with them, the least important of them the emancipation of humanity.8 Michel Foucault’s Discipline and Punish is one such influential account. Discussing the abolition of torture as a public spectacle, Foucault writes that “perhaps, in its time, it [the abolition] gave rise to too much inflated rhetoric; perhaps it has been attributed too readily and too emphatically to a process of ‘humanization,’ thus dispensing with the need for further analysis.”9 Foucault’s own analysis reveals that the abolition of the public spectacle was a new technology of power, directed at the soul rather than the body, and that its objective was the control of the population. This was also the general argument in the scholarship evaluating humane reforms in the English criminal justice system that were introduced during the late eighteenth and early nineteenth centuries.10 Michael Ignatieff, for 113

nature

example, following Foucault, argues that between 1775 and 1840 a new form of central discipline “directed at the mind”—the prison—replaced a cluster of punishments “directed at the body”—whipping, branding, the stocks, and public hanging.11 The new form of authority within the prison came to be considered just, reasonable, and humane. Further, humanitarian reforms were linked to capitalist transformations and altered various technologies of social control through humanitarian language. The dated conception of humanitarian progress has since been replaced with a more complex reading of the criminal justice system. Humanitarian reforms in the criminal justice system, Douglas Hay argues, served the interests of the ruling class by enabling the latter to bend the letter of the law for the sake of manipulative mercy.12 E. P. Thompson contends that reforms mediated and reinforced existing class relations by providing them with ideological legitimization and placing constitutional limitations on the ruling class.13 It has further been maintained that reforms presented a more pleasing image of justice, granting the law greater legitimacy and hence greater efficiency.14 These studies generated important insights into the sociological workings of the criminal justice system and the nature of humanitarian reforms in England. But they also relegated the category of the humane to levels of inflated rhetoric, justification, and ideology without investigating the meanings of the human named by humane reform. Humanity and the human were assumed to be fixed and in need of no further interpretation, while at the same time offering stable grounds for critiquing reforms that only pertained to enacting humaneness. But humane forms of legal ordering, I suggest, are central to the production and materialization of humanity. The proliferation of a legal language of humanity is part of the operative power of law, which universalizes humanity and its attributes. Legal language does not simply legitimize oppressive practices in the name of humanity but can transform these very oppressive practices into humane ones. By naming certain practices as humane, the law also names and attempts to cultivate a particular human. No pure form or ideal construct of humanity exists “out there” against which legal language operates “in reality”; the human at a specific historical juncture is partly a product of legal language/interventions, competing with other forces. 114

wou nds

In Egypt, the rhetoric of humanity represented the victory of human reason and compassion, which was said to overcome the limits of local Egyptian violence, arbitrariness, and cruelty. The meanings of this humanity, however, were left vague. Appearing always in opposition to cruelty and suffering but having no definition of its own was one of the power operations of its deployment. One way to access the meanings of the human is through an investigation of its deployment against suffering in humane legal reforms, such as the reforms in the criminal justice system. Introduced to alleviate the pain of criminals, defendants, and prisoners, these reforms shed light on the human constituted in the battle against suffering. The first set of humane reforms that the colonial state carried out in Egypt abolished the use of the curbash (whip) in criminal investigations and in tax collection.15 Already in 1883, the Ministry of the Interior had issued a circular to all provinces and police authorities prohibiting the whipping and terrorizing of peasants, as these actions negated humanity and the wishes of the khedive.16 This policy was not implemented without objections. J. F. Kershaw, the inspector of native parquets at the Court of Appeals, argued that the judiciary should be empowered to issue sentences of flogging for crimes of violence and gross acts of hooliganism in lieu of, or in addition to, imprisonment.17 His suggestion was rejected. During the same period, the Ministry of the Interior prohibited the practice of chaining offenders by their necks and hands and dragging them through the streets.18 Prisons were a major cause for humane concern during the early years of British rule in Egypt. British officials complained about miserable conditions in prisons and urgently called for reform.19 Dr. Crookshank was appointed as the director general of Egyptian prisons in January 1884. In May of the same year, he reported on the state of Egyptian prisons, the reforms he was able to introduce, and reforms planned for the future. The Alexandria prison, he noted, was one site considered to be in special need of intervention. It was a prison for convicts sentenced to imprisonment and hard labor, who were instead “merely undergoing simple imprisonment for crimes of the worst character.” The prisoners were also held in harsh conditions. The cells, each containing around fifty prisoners, were 115

nature

“low, dark, damp . . . with mud floors.” Crookshank was of the opinion that the prisoners should be engaged in hard labor while enjoying better living conditions.20 Prison reforms were to be based on the English model and the prisons inspector-general, upon a request from the minister of the interior, visited England in 1897 to learn more about British prisons.21 The various circulars of the Ministry of the Interior insisted that prisoners should be treated humanely, which meant improving the conditions of imprisonment, namely the small, filthy rooms without windows or sufficient ventilation.22 The circulars requested that the prison authorities provide the prisoners with a clean environment,23 in addition to adequate nutrition.24 The Ministry of the Interior appointed prison inspectors to monitor the implementation of these instructions.25 In 1891, the Ministry of the Interior issued instructions that prisoners must be examined before being admitted into the prison.26 Later, the General Prisons Decree of 1901, upon the request of the prisons inspector-general, provided for the appointment of doctors to examine prisoners before their admission into prison in order to decide on the appropriate kind of labor for them to undertake.27 They were to make weekly visits to all prisoners and daily visits to all sick prisoners and prisoners held in solitary confinement. If a certain kind of labor was found to endanger a prisoner’s health, it was the doctor’s duty to instruct the prison chief accordingly. Evidence exists that these standards aimed at protecting prisoners were enforced. For example, in 1899 the Ministry of the Interior established a special commission to review the decision of a disciplinary committee in the district of ‘Umum al-Qanal, which called for the dismissal of Dimitri Afandi Sa‘d, an official in the Port Sa‘id prison. Sa‘d was dismissed for failing to treat prisoners equally, forcing prisoners to leave their cells at night without a sanctioning order, and not keeping track of various financial matters.28 Mustafa Afandi Zaki was also dismissed from his post as director of the Asyut prison for various financial misdealings, including the confiscation of money from prisoners and keeping them imprisoned for periods exceeding their sentences.29 Furthermore, Dr. Crookshank, the English humane reformer, was investigated for ordering the whipping of one prisoner, and the procurer-general requested his removal from this office.30 116

wou nds

Egyptian courts, too, used their authority under the law to penalize officers or other state employees who inflicted pain on subjects or tortured them.31 The legal periodical Al-Huquq discussed this reform and praised it for its “sympathy, mercy and kindness.” Al-Huquq explained that the substitution of imprisonment for fines served to decrease the number of prisoners, to increase the income of the courts, and to release many workers for agriculture. It also added that “a nation which fines its criminals, as in European countries, maintains their dignity, resulting in honor outdoing vileness.”32 Another article in Al-Huquq devoted to the same subject argued that French laws, which informed Egyptian penal legislation, were not keeping up with the times. Meanwhile, harsh punishments were no longer used in the Ottoman Empire, where almost nobody was executed, because the sultan pardoned criminals and substituted another punishment for execution. In Egypt, however, the prisons were crowded with productive men who committed actions that were not in their nature.33 Citing prison reforms in the United States, Al-Huquq praised them: “No matter how bad a man is, his reform and return to his nation are normally done with kindness and respect for his human status, not through hurting, insulting his sense, and killing his soul.” In each nation, the article elaborated, there were some who had lost their humanity and were no longer fit for human society, but these were few in number. “The mere presence of prisons is a shame for humanity,” for the best punishment is fining the criminal, or imprisoning him in a place where he could be disciplined, not with iron and stick but with work and learning.34 And yet, the humane reform plan in the prisons was not flawless. In his report for the year 1893, the prisons inspector-general stated that hospitals had been built in large prisons in which almost 1,800 prisoners had received health care. Death rates, however, remained high because budgetary limitations kept the prisons crowded and the prisoners inadequately fed and poorly dressed.35 Furthermore, free treatment was only offered for diseases contracted during the period of imprisonment.36 As for whipping, one report established that in 1901 there were thirty-three cases of whipping in Egyptian prisons.37 As articles in Al-Huquq argued, imprisonment, rather than the imposition of fines, continued to be the preferred means of punishment in practice. 117

nature

The colonial state did not initiate prison reform. Previous reforms had targeted similar problems in the prisons. Rudolph Peters’s work on living conditions in nineteenth-century Egyptian prisons describes a series of reforms that made imprisonment the chief penalty, abolished corporal punishment, and minimized the use of the death penalty. As a result, writes Peters, “Egyptian criminal law during the second half of the 19th century was—at least, before the British occupation—not as cruel and arbitrary as European travelers and British colonial servants made it out to be.”38 Khedival concern for the state of the prisons was primarily motivated by what Peters identifies as practical considerations, such as epidemics and health risks. Whereas it is required by equity and justice that, in accordance with the principles of hygiene, the goals in the governorate and the district capitals be clean and have access to so much fresh air that a person’s health is not impaired, and whereas it has been noticed that some of these prisons do not satisfy these conditions, therefore the governors are instructed to conduct personally an examination and inspection of the prisons in their governorate, together with the chief engineer and the regional health officer.39

Majlis al-Ahkam had issued this order in 1849, testifying to the existence of similar reforms in khedival prisons that also aimed to “control suffering,” to use Peters’s words. Similarly, Khaled Fahmy has established that the abolition of the use of the whip was instituted in Egypt in a decree from 1860. The reasons for the abolition, he argues, were not Enlightenment ideals of humaneness.40 Both accounts of khedival Egypt, by Peters and Fahmy, point to the historical fact that reforms directed at “controlling” pain and suffering in Egypt characterized the law prior to the British occupation and establishment of the new legal system. The colonial story that such reforms were blessings bestowed upon Egyptians by the British is false. This rebuttal of the colonial story is important, but it offers no answer to the question concerning the difference between khedival and colonial reforms. On the one hand, they both seem to have shared the operations of biopower in their focus on the alleviation of suffering. In the first volume of The History of Sexuality, Foucault defines biopower as the modern power that is correlative with the modern nation-state. In contrast to sovereign power, which bars, breaks, and destroys, biopower produces forces, 118

wou nds

makes them increase, and manages them.41 Both khedival and colonial reforms established regulations for the care of the prisoners’ bodies and their physical environment to prevent illness, health risks, and epidemics. Prisoners were not to be treated cruelly or to be tortured but were to be cared for and their bodies nurtured. Their basic needs of food, health, and clothing were to be provided for. Suffering, therefore, was understood to be bodily, and its reduction or control became the objective of state law and its regulations. In this focus on care for biological life, suffering was equated with corporal cruelty or injury. The biological life of the prisoner or the offender was the site of the reforms, and ending excessive suffering was its logic. While biopower characterized both khedival and colonial reforms, the appeal to the “human” distinguished the colonial from the khedival. Colonial humane legal reforms were power operations that constituted the human as their realized end. With the rise of juridical humanity, which declared the human a status to be endowed by the operations of the law, humane legal reforms were the legal practice that performed some of these operations. As already argued, by identifying these reforms as humane, colonial law also named the human protected by them. Humane reforms were not only legal means to teach Egyptians how to be human through the cultivation of a sensibility of humaneness; they were also practices aimed at establishing the human status of the receiving subjects. In this sense they constituted techniques of juridical humanity. A subject in excessive pain is dehumanized, and a subject relieved from this excess—an end accomplished through humane reforms—is thereby humanized. Excessive pain, then, marks a distinction between the human and the inhuman. And humanizing reforms offer juridical humanity its redemptive power. The association between legally reducing pain and becoming human not only constitutes a technique of juridical humanity but also relies on a particular articulation of pain that is purely instrumental. The theoretical works that contributed to this sensibility toward pain, as well as being influential in the humanitarian penal movement in Egypt and elsewhere, were those by Beccaria and Bentham. In Egypt, this articulation was most evident in the humane reforms that aimed to eliminate what was defined as cruelty to animals. 119

nature

p u t t i n g pa i n t o use Jeremy Bentham exerted a direct influence on legislators in Egypt and, more generally, on criminal reform movements. He famously argued that nature placed mankind under the governance of two sovereign principles: pain and pleasure. The principle of utility recognizes this subjection and promotes happiness and felicity through the law and reason.42 Pain in Bentham’s theory is not only corporeal but is also used with pleasure to loosely indicate a range of dichotomous values such as good and evil, happiness and mischief. While one is subjected to both pain and pleasure, the principle of utility always backs pleasure. Because the principle of utility is the property of every object, pleasure is always objectively produced and pain avoided. The utility principle, Bentham argues, is present in man, such that increasing happiness and decreasing pain are moral goals to be achieved. Hence, pleasure and pain are central to any moral assessment of human conduct. The human, in Bentham, is no prescribed ideal construct but a described moral subject who maximizes pleasure and minimizes pain; morality and the aim of human life are reduced to feeling. Nevertheless, there is no becoming human in Bentham’s thought and no work of humanization; the human simply is the subject who maximizes pleasure and reduces pain. Bentham’s philosophy inspired humanitarian reforms in the criminal justice system to reduce the suffering of the subjects trapped in its nets, but he himself rarely, if ever, used humanity-centered narratives to explain his reforms or moral philosophy. Instead, he corresponded with local rulers in many countries, including the governor of Cairo, Mehmed Ali Pasha, in the early part of the nineteenth century, to advocate the introduction of the panoptic principle and other new techniques for the maintenance and production of order.43 Bentham may have therefore influenced khedival prison reforms. While his ideas also left a mark on colonial humane reforms—his name was often cited in Egyptian law textbooks—he was not the theorist who joined liberal humane sensibilities with utilitarianism and articulated a certain version of utilitarianism as humane. In the British context, John Stuart Mill would carry out this work. The absence of the rhetoric of humaneness notwithstanding, what Bentham’s philosophy reveals is how pain came to be measured and instrumentalized—how it was put to use. In his account, the minimization 120

wou nds

of pain is useful for achieving pleasure and for moral action. Bentham, then, cannot simply be understood as a mathematician of pain and pleasure; the reconfiguration of pain as a means to the end of pleasure and morality is at once quantitative and qualitative. Pain’s instrumentalization necessitates its measurement and proper classification; otherwise, it is impossible to decide how much and what kind of pain should be eradicated in the pursuit of pleasure. I want to suggest that Bentham’s instrumentalization of pain, or what I call putting it to use, is the precondition for the argument that excessive pain results in dehumanization. Pain, or its reduction, is mobilized in political projects external to itself. That which may otherwise reside in a human being, connect her to others, produce confessions about itself and the body to which it belongs, begins to be an object of manipulation in utilitarian schemes.44 The manipulation of pain is coupled with its detachment from e­ thics. In Bentham’s account, the reduction of pain is a moral imperative, thereby asserting an opposition between excessive pain and morality. This detachment is more explicitly articulated in Cesare Beccaria’s work on torture. Beccaria famously propounded a theory of criminal justice that joined arguments of utility and of humanity.45 This is evident in his reference to the “interests of humanity,” or in his assertion that if he could demonstrate “that capital punishment is neither useful nor necessary,” he would have “gained the cause of humanity.”46 He urged that penal law be mild and humane and called for the abolition of torture. Torture, in his account, is the infliction of pain used with the intent either to make the tortured subject confess to a crime, to reveal some truths about a crime, or “for some kind of metaphysical and incomprehensible purgation of infamy.”47 That Beccaria considered the abolition of torture humane raises the questions of why the pain of torture ceased to be humane, and what the human who emerges from the new prohibition on pain is. Consider the following: It is confounding all relations to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robust will escape, and the feeble be condemned. These are the inconveniences of this pretended test

121

nature

of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.48

Beccaria challenges the practice of torture that seeks the truth about a certain event through the pain of a tortured body. In arguing against this practice, he directs his attention to what he takes to be a false equation between pain and truth while distinguishing between corporeality and morality. When pain speaks, according to Beccaria, it can only tell lies and disrupt: “The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment.”49 An obstacle in the face of truth, pain is a biological “sensation”; Beccaria speaks of the “muscles,” “fibers,” and “sensibility of the nerves” as producing the impression of pain on the mind. This biological sensibility not only leads one to lie, but can arouse no “moral sentiments.” Of the use of pain for the “purgation of infamy,” he writes: “Can pain, which is a sensation, have any connection with a moral sentiment, a matter of opinion? Perhaps the rack may be considered as the refiner’s furnace.”50 The opposition here is between sensibilities and sentiments; the first is biological, and the second, moral.51 If Beccaria separates morality from pain, the law that authorizes torture assumes the opposite, and it is precisely because of this assumption that the law is intolerable: The law by which torture is authorised, says, Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable right of selfpreservation; but I create in you a contrary sentiment, an heroic hatred of yourselves. I command you to accuse yourselves, and to declare the truth, amidst the tearing of your flesh, and the dislocation of your bones.52

Here the distinction between sentiment and sensibility operates in a similar fashion. The former is linked to pain, which, as we have seen in ­Beccaria’s analysis, is always biological, and the latter is a matter of morality. Having established the two as dichotomous, Beccaria ridicules a law that by authorizing torture assumes that a moral sentiment can arise in the midst of pain. 122

wou nds

I point to these distinctions not because I am interested in criticizing Beccaria’s project of banning torture but rather because they help to reveal both the fate of pain in his theoretical labor and the human that pain articulates. Because Beccaria depicts pain as an obstacle to the cultivation of moral sentiments, which, for their part, continue to define humanity in Enlightenment thought, pain can begin to do the work of dehumanization. What humane reforms accomplish, with their focus on the alleviation of suffering, is twofold. First, they situate the human on the side of the subject who can practice humaneness, now understood as a moral sentiment that is not bodily. Second, they declare the body in pain dehumanized because of pain’s opposition to moral sentiments. This opposition between pain and morality is one way in which pain begins to assume the work of dehumanization. But it is not pain as such that dehumanizes in Beccaria’s account; rather, it is pain’s own biological reconfiguration as separate from morality that dehumanizes a suffering subject. The imperative to overcome pain becomes the means of humanization—and humane legal reforms accomplish precisely this. By moving to eliminate the pain that corrupts, reforms call the human into being. Pain no longer reveals the truth, as in the practice of judicial torture. Because it could not speak of itself and could have no positive association with moral sentiment, pain is now to be manipulated to reveal a truth that is otherwise manipulated by pain. This human resembles the subject of biopower, who can enjoy the good life once productively delivered from excessive pain—who can now be cared for rather than tortured and destroyed. Ironically, however, the overemphasis on pain as the sensation that needs to be avoided in order for a moral subject to emerge ends up reestablishing biological life, not moral sentiments, as the target of humane reforms. Hence the similarity between khedival and colonial reforms: they both focus on biological life. The difference is that biological life, under colonial humane legal forms of ordering, carries the potential for humanization. Care for biological life through the alleviation of pain now enables the cultivation of a human being by bringing him closer to morality. It follows that the alleviation of pain is a means to the end of the human. This explains the ease with which colonial officials could move from describing Egyptian natives as immoral to describing them as dehumanized by their brutal governments. 123

nature

The immoral and the dehumanized went hand in hand because morality was suspended in the presence of excessive pain. To be sure, biology and morality or ethics need not be thought of from within a theory that separates them. Alasdair MacIntyre, for example, considers ethics in relation to biology. He argues that any explanation of virtue must take into consideration that we are biologically constituted and that our development as human beings has its starting point in our initial animal condition. Understanding that condition sheds light on the nature and extent of human vulnerability and disability. It is only possible to notice the role that virtue plays in our lives by reckoning adequately with our animal condition and with our consequent vulnerability and dependence as central features of the human condition. This reckoning points to the bodily dimensions of our existence. Crucial to MacIntyre’s argument is the recognition of corporeality as the precondition of moral virtue. This recognition is absent from Beccaria’s account; he chooses, instead, to compartmentalize virtue and bodily animality as separate entities. This is why, for Beccaria, subjects in pain are only, to use MacIntyre’s description, “subjects of benevolence by moral agents who are themselves presented as though they were continuously rational, healthy and untroubled.”53 nonhum a n hum a nit y I have been suggesting that recovery from excessive pain through humane legal reform signaled the humanization of Egyptians and their elevation to the status of human beings. But archival evidence also reveals that in colonial Egypt the subjects of legal humane injunctions were not only Egyptians. Nonhumans, more specifically animals, were central “actants” in the theater of humane reform.54 Both Egyptian subjects of colonialism and nonhumans made a joint appearance in the practice of colonial legal reform, and both were declared victims of cruelty and in need of rescue. Colonization, introducing British principles of government, was the means of liberating Egyptians and animals deemed to be in need of British rescue missions. The story of rescuing Egyptians by colonization and the story of rescuing animals therefore ran along parallel lines. What can we make of the appearance of the nonhuman animal? If in the case of prisoners humane reforms were the means of humanization, 124

wou nds

what was their effect when targeting animals? Were animals humanized too? Was the appearance of both species central to the formation of humanity? The human, Bruno Latour argues, ought to be located and under­ stood in relation to the nonhuman, and humanity should be defined as emerging out of the association of humans and nonhumans.55 But what is crucial is not only the fact of the association but also its particular terms in colonial Egypt. To suggest, as I will, that the human and animal emerged homologously in colonial legal reform is to say little. More important are the terms of this homology under colonial conditions, that is to say, the concrete similarities that constitute this homology. Indicative of this association between colonial subjects and animals is an 1872 children’s story written in another colonial context—that of British colonial India. The title of the story is To the Children of Calcutta, on Cruelty. Its author was the secretary of the Calcutta Society for the Prevention of Cruelty to Animals. It begins with the following paragraph: Once upon a time (for that’s the way all old stories begin) there was said to be a band of valiant gentlemen called “Knights errant,” who roved about different countries seeking to do deeds of great bravery by releasing captive princesses and knights who were lying chained in castle dungeons belonging to some dreadful giants that I dare say you have read about. These giants were said to be very strong, and very brutal . . . and so they had pleasure only in cruelty; whilst many (so the story said) were cannibals, and kept their poor prisoners only to kill them and to eat them.56

The author, addressing the story to the children of Calcutta in colonial India, explains that whereas these wonderful stories may not be true, they were not altogether false. The story proceeds by recounting the struggles of the brave British knights and their wars against two major evils that inflicted suffering on slaves and animals. The knights, so the story goes, helped to free the slaves from their cruel masters in the colonies. However, what remained to be done was the liberation of animals. This the knights did by establishing societies for the prevention of cruelty to animals everywhere they could with the help of those who believed in their cause. The British author of the story invites the children of Calcutta, the colonized subjects of India, to join the efforts of the British knights to prevent cru125

nature

elty to animals, while reminding them in rephrasing this all-too-famous Benthamian language: “They did not think that animals suffered pain! They thought that, as animals could not speak, they could not feel.”57 To the Children of Calcutta, on Cruelty illustrates the affinities among three important projects of the nineteenth century: the abolition of slavery, the prevention of cruelty to animals, and colonization—the umbrella project that began to think of itself as enabling the first two projects. The fact that objections to slavery did not always result in anticolonialist politics and practices has already been noted. Robert Young, for example, observes that the antislavery campaign was often turned into a pretext for colonization by enabling Britain to halt the slave trade.58 However, what this children’s story suggests, and what the evidence from colonial Egypt discussed below demonstrates, is the relationship between colonization projects and the prevention of cruelty to nonhuman animals. Late nineteenth-century liberal colonialism marked out both the colonized and animals for humane treatment under the law. Lord Cromer, the British consul-general in Egypt who governed Egypt from 1883 until 1907, was one of those “British knights” active in these two major campaigns: establishing colonies and liberating animals. Upon his departure from Egypt, and in recognition of his efforts there to reduce cruelty to animals, Cromer was appointed vice president of the Royal Society for the Prevention of Cruelty to Animals in London. The Egyptian Society for the Prevention of Cruelty to Animals was established in 1883 and Cromer, then still known as Evelyn Baring, was one of its patrons (together with the khedive, the consul-generals of Italy, the United States, and Holland, the procurer-general, and other Egyptian ministers such as Nubar Pasha and Sharif Pasha). The objectives of the society were “the prevention of cruel and improper treatment of animals and the amelioration of their condition generally throughout Egypt.” In addition, the society was to become an “agent in the education of the people by promoting the cultivation of those merciful impulses, which tend to the growth of humanity and ‘prevention of cruelty’ to Man.”59 The society, it seems, was not particularly successful, and after a short while it ceased to exist. Writing in 1892, Cromer did not think that another such society was needed because, in his view, the law enabled the 126

wou nds

police to intervene in cases of cruelty to animals.60 Other local societies were established instead, called Jam‘iyyat al-rifq bil-hayawan (Socie­ties for the Gentle Treatment of Animals). The Egyptian Ministry of the Interior cooperated with these societies. The law, as Cromer explained, provided for the protection of animals. Reforms in the criminal justice system criminalized the injury or killing of an animal belonging to another person, whether through negligence or the violation of other regulations. The Penal Code established a punishment of imprisonment for a period not exceeding one week, or a fine not exceeding one pound.61 A decree of 1895 ordered police investigating penal offenses to refer animals to one of the Societies for the Gentle Treatment of Animals.62 The criminalization of such actions was a novelty in the Egyptian legal system. Prior to the British occupation of Egypt in 1882, when a draft law laying down measures against the spread of certain animal epidemics was being prepared, the Ministry of the Interior declined to criminalize acts violating the propositions of the Draft Code, arguing that such a decision needed to be approved by the government.63 It should be noted that the first two penal statutes of khedival Egypt, from 1829–30, included provisions about animals. They did not penalize cruelty but criminalized slaughtering a female animal without an excuse, killing a male animal under the age of three, and butchering wild animals such as oxen and buffalo. These penal provisions, Rudolph Peters argues, were intended to “maintain the reproductive capacity of the existing livestock and to prevent the slaughtering of draught animals needed for farmwork.”64 Generally speaking, the Egyptian colonial Penal Code distinguished between “domestic animals,” such as dogs, cats, birds, rabbits, chicken, and so forth, and farm animals, such as sheep.65 It mandated imprisonment and hard labor for a person who intentionally killed or severely injured an animal designated for riding, carriage, or hauling.66 This was also the punishment for the poisoning of domestic animals or fish. A maximum punishment of six months’ imprisonment, which could be substituted for a fine not exceeding ten pounds, was fixed for a person who killed, severely injured, or poisoned domestic animals for no reason.67 The intentional killing of a chicken was a criminal act.68 While the law did not elaborate on what reasons could justify the killing, injuring, or 127

nature

poisoning of an animal, the judicial branch did: insofar as the person or his property was subjected to danger or discomfort, such actions against domestic animals were permitted.69 Egypt’s Cruelty to Animals Decree of June 5, 1902, expanded the scope of the Penal Code to include the punishment of an offender who was cruel to animals, whether domestic or farm animals.70 If a person intentionally injured an animal, even if the injury was minimal and had healed in the meantime, the action would still be punishable.71 The above-referenced Article 310 of the Egyptian Penal Code was used when a “lasting injury” was caused by cruelty.72 In 1908, Cromer, reporting to the Foreign Office in London, stated that in actuality, only in cases of serious or wanton cruelty to animals was the owner of the animal prosecuted.73 The Egyptian Ministry of the Interior issued circulars requesting that the police refer animals no longer capable of work to the Societies for the Gentle Treatment of Animals for treatment.74 Depending on their labor power, animals referred to the societies’ clinics would be treated, put to work, or killed. The treatment fees were fixed, and an owner’s failure to pay the fee resulted in the animal’s being made to work until the treatment costs had been recovered.75 If an owner failed to pay for seven days, the animal was sold. In the case of incapacity to work, the animal was killed.76 A decree from 1906 established a thorough procedure for the killing of such animals.77 Statistics indicate that these societies were very active in “rescuing the animals.” As the years passed, their operations became increasingly effective. The societies admitted 1,855 animals in the year 1908, 3,574 in 1909, and 4,491 in 1910. The peak came in 1916, when the societies admitted and treated 8,920 animals.78 More detailed statistics from the year 1920 indicate that the societies admitted 6,181 animals, of which 485 had been mistreated and 2,506 were incapable of work. The societies killed 353 for incapacity to work and 40 died during treatment. Meanwhile, the same year, the courts heard 605 cases, sentenced one person to prison, and fined the remainder. The amounts of the fines ranged from ten to one hundred piastres.79 Cromer was satisfied with the work of the societies and the police. Writing to an advocate for animals in Britain, he stated that “although cases of cruelty are still unfortunately far too common, at the same time, from what 128

wou nds

I myself see of the condition of animals in the streets of Cairo, I should say that the states of things now compares favourably with that which existed a few years ago.”80 Doubtless, humane justifications may have been used to mask other operations aimed at controlling the Egyptian peasantry. This argument resonates with David Oshinsky’s work on the post-slavery era in Mississippi and the Black Codes, which among other things criminalized cruelty to animals by “free negros.” The objectives of the Black Codes, ­Oshinsky argues, were to control the supply of labor, protect the freedman from his own “vices,” and ensure the superior position of whites in southern life.81 But there may be more to these reforms than the objective of control. Humane treatment entailed caring for animals, making them work, and killing them when they were no longer of productive use (the hunting of animals was never prohibited in Egypt but rather was regulated82). A 1910 report by Paul Flex, secretary of the Egyptian Society for the Gentle Treatment of Animals, provides the clearest articulation of the operations and objectives of humane reforms directed at alleviating the suffering of animals. Flex stated in his report that much progress had been made with regard to animals: there had been a decrease in cruelty toward them in addition to a drop in cases of the employment of animals incapable of working. Ignorant peasants, however, Flex added, thought that only visible injuries or injuries in the legs required that animals should be rested. The peasant, Flex argued, had not yet learned that invisible injuries or injuries to the back also required treatment and rest.83 Humane reforms, then, were meant to reform Egyptians. Not only were they to be delivered from the useless pain that dehumanized them; they were also to learn how to become human by learning to recognize and refrain from penalized cruelty. This function of humane reforms to prevent cruelty to animals is clearly articulated in the writings of the liberal philosopher John Stuart Mill. In one newspaper article, he discusses a case in which the suffering of humans was weighed against that of animals. It was the case of an English man who was charged before one lord mayor “with having most cruelly beaten one of the horses he was driving in a wagon.” The horse fell, and the man struck the horse more brutally when it was down. The lord mayor expressed “great indignation” at the man’s conduct but sentenced him, upon learning about his large family, to a fine less than the 129

nature

maximum allowed by the law: “You deserve the highest punishment, but I cannot think of punishing your wife and children.”84 In contradistinction, Mill maintained that the punishment should have been even harsher than the one prescribed by the law. As to the suffering of the wife and children, Mill writes: A man capable of the act of which this man is found guilty, must be one of two things. He is either a wretch who wantonly ill-treats a helpless being, for the pleasure of tyranny, because it is in his power and cannot resist; or an irritable, violent creature, who on the smallest provocation . . . flies into an uncontrollable rage, and cannot restrain himself from wreaking a savage vengeance.85

A man who inflicts pain on animals is in Mill’s account a violent creature, a tyrant, unworthy of the title “human” and worthy only of the title “man.” Later in the essay, Mill announces that the man is in effect an animal: “Disgusting enough it is that animals like these should have wives and children.” The man’s family will benefit by punishing the man, for they “are more objects of pity for being compelled to live with such a man.” A more severe punishment would have taught him to be less brutal to his horses, which in turn “would have made him less brutal to his human victims likewise.”86 Mill, of course, knows absolutely nothing about the man’s treatment of his family, but he also does not need to know. For within Mill’s logic, he who can make animals suffer can make humans suffer, too, and vice versa. There is an astonishing continuity between the two species that rests not in the resemblance between animals and humans, but in their belonging to a suffering collective consisting of “objects/subjects of pity.” Learning how to be humane to animals is an exercise in learning how to be humane to human beings and consequently how to become fully human. Similarly, humane reforms in Egypt attempted to cultivate a sensibility of humaneness among Egyptians, who learned to avoid certain cruelties through the threat of punishment. As we will see below, that did not mean that all violence against animals was eradicated; only the eradication of some forms of violence was deemed necessary to becoming fully human. The clinics established for the treatment of animals throughout Egypt continue to operate to this very day. Egyptians remember the role that the British played in their establishment. The societies and the reforms 130

wou nds

associated with them made possible the reforming of Egyptian inhuman subjects, who in turn had to redeem their humanity. There was no expectation that animals should be treated like humans, but they should be treated humanely. This, then, was an action aimed at rescuing animals that at the same time asserted the potential humanity of Egyptians. They were now learning, through the means of criminal law, to treat animals humanely, in order to become humans themselves. In other words, two objectives were accomplished simultaneously: on the one hand, the rescue of animals, and, on the other, the rescue of the colonized from their inhumane past through admission as new members into universal humankind by practicing humaneness. Humaneness, as Keith Thomas shows in his historical exploration of the relationship between man and the natural world in England from 1500 to 1800, was a novel sensibility that we can trace back, in relation to animals, to the eighteenth century. Thomas brilliantly suggests that there was nothing new about the sensibility that prohibited unnecessary cruelty to animals. Many medieval scholastics held this view, and it was repeatedly urged in the early modern period. But these voices condemned cruelty because of the human consequences it brought, not because of a concern for animals themselves. Brutalizing beasts had a “brutalizing effect on human character and made men cruel to one another.”87 What Thomas calls “a more radical view” that would prohibit cruelty with no regard to human consequences emerged when considerate treatment of animals became a religious obligation: “Cruelty, later writers would urge, was an insult to God, a kind of blasphemy against his creation.”88 This perspective on animals would shift in the eighteenth century, Thomas argues, and begin to signal an emphasis on the feelings of animals and on the discovery that they too can suffer. The animals’ experience of pain became fundamental to those who crusaded on behalf of animals. Thomas writes that “this was a new and altogether more secular mode of approach. It was now possible to attack cruelty to animals without invoking God’s intentions at all. The ill-treatment of beasts was reprehensible on the purely utilitarian grounds that it diminished their happiness.”89 Thomas’s historical narrative suggests that it is not the abolition of cruelty as such that is worth attention, but what the abolition signals in 131

nature

particular historical contexts. Locating the rise of the sensibility of humaneness in an era of secularization, he does not consider the question of the relationship between utilitarian sensibility and the figure of the human that was facilitated through it. He establishes too great a historical divide between the argument that brutalizing animals brutalized the human as well and the Benthamian utilitarian argument that focused on the suffering of animals. Bentham’s famous statement, “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?”90 is taken here to signify a shift in sensibilities. This view overlooks the disciplining effect on the practitioners of humane injunctions and focuses exclusively on the subjects in pain, whether humans or nonhumans. But while humane treatment of animals may have been motivated by care for the animals as such, their contribution to the cultivation of the sensibility of humaneness, and the making of the human, is equally crucial. Mill not only combined the care for the human and the animal and established continuity between the two, but he also declared the “man” an animal for lacking humaneness. The humane treatment of animals, then, was central to the humanizing ­powers of the law. And the separation between corporeality and morality was reinforced in these reforms, for the question was never whether animals could reason or be virtuous; it was always whether they could suffer, a question in whose articulation pain was detached from morality. t h e wor k of a n im a l s Humane reforms for preventing cruelty to animals reveal the extent to which nonhumans marked the humanity of Egyptians. The story of colonial Egyptian humanity includes a role for the animals. Nonhuman animals were not the other of the human; rather, their presence facilitated the cultivation of the particular colonial humanity of Egyptians. The “man” in Mill’s story could metamorphose into an animal because of his treatment of animals and back into a human with the threat of punishment. The boundary between animal and human, positing the animal as the radical other of the human, was not fixed. In relation to humane reforms, animals and prisoners emerged as homologous targets of biopower operations. The two species were bodies that needed to be delivered from excessive pain. Their pain was instrumentalized to the end of the human. 132

wou nds

By recounting this story and pointing to the homology between animals and humans, the point is not to reveal the poverty of animalized humanity, where animal and human become indistinguishable in their reduction to biological life. If guided by Hannah Arendt’s explorations, we might reach this conclusion. In her now classic essay “The Rights of Man and the End of the Nation State,” she equates the reduction to biological life (or the animalization of the human, or indeed her dehumanization, in the sense of the loss of political life) that occurs when one exits the political community and the law protecting it, with the pain, suffering, or death that ensue from this reduction and expulsion. In Arendt’s formulation, once an individual exits a political community and the law protecting it, he becomes a human stripped of all meaningful human qualities—an animal.91 Arendt helps to show the fate of the human in a world structured around nation-states. Her formulation can be employed to disclose the poverty of the human proclaimed by the colonial state. However, she also uses the animal as a way to reveal the shortcomings of the human and, in some sense, to maintain the hierarchy of the human. My argument about Egypt has a different trajectory, one that is different from the Agambenian formulation of the “zone of indifference” between human and animal.92 The aim is to explore the terms of the association between animals and humans in colonial Egypt, and how those specific terms can further our understanding of colonial humanity and politics. Why are animals important to the telling of this story? What different mark do they leave, not already left by the account of reforms in prisons? Bruno Latour argues that social theorists have focused exclusively on human agency, or human action, as the stuff of social relations. The social appears as if it were a fixed substance, like “wood” or “steel,” that we attach to another word to declare it social, as distinct from the natural or the technological. He suggests that instead of this view of the social, we need to trace networks and connections that are only temporarily fixed and which include human and nonhuman agents.93 What if we take Latour’s invitation, and reassemble the juridical and the political? The animal has been a central figure in political-juridical thought. Arendt’s and Agamben’s works draw on a long tradition of political thought, starting with the Greek separation of zoê from bios, in their attempts to understand a 133

nature

modern politics that brings about their fusion: animalized humanity and humanized animality.94 But even with the recognition of the animal figure as part of modern politics, the asymmetry between man and animal remains operative. In fact, modern politics are criticized precisely for their work of hybridization. Rather than critique this hybridization, we could ask what this particular homologous association between animal and human tells us about juridico-political powers in the nineteenth century. For different associations, linkages, and connections have always existed between the animal and the human, and the question is how they are temporally fixed to produce modern colonial politics—or any other politics. Both the human and the animal became targets of juridico-political forces that operated by relieving bodies from pain. The presence of animals, and the specific legal reforms penalizing useless pain inflicted upon them, enabled the cultivation among Egyptians of new ethical sensibilities of humaneness that did not stem from the vulnerability, dependence, and biological limitations of human beings and animals. Rather, humaneness reflected both the capacity to manipulate pain, by measuring and calculating what otherwise remained arbitrary, and its instrumentalization toward another end. Humans and animals made a joint appearance because they metamorphosed into bodies suffering useless pain while awaiting their redemption by a political project that would put pain to use. This political project in the case of Egypt would take the shape of colonialism. The problem with humaneness was not that it should have erased all suffering; if not worthy of critical attention for other reasons, this would be clearly impossible. But there is a difference between putting pain to use (which in itself may have resulted from instrumentalizing relationships) and sharing, for example, pain and suffering, as Donna Haraway would have it.95 The second option has no heroic end; it begins from conditions of inhumanity and instrumentalization that already constitute both the human and animal, as we have seen in chapter 2, and proceeds without any promise of redeeming the human. The second option is by no means tragic, though some may find it so, but works through a series of struggles with itself and with others. It is instructive here to point to another relation between animals and humans, articulated by Egyptian intellectual Rafi‘ al-Tahtawi (1801–1873) 134

wou nds

in the khedival period. Al-Tahtawi visited Paris in 1826, and his scholarly work constituted an attempt to grapple with the question of adjusting to the West. His writings reveal the two facets of the temporality he inhabited: time past (khedival) and time future (colonial), mixed and not yet fully separated. In a chapter titled “On the Human,” al-Tahtawi begins by asserting that the human is an animal who enjoys the capacity of speech. He explains the physical differences and similarities between the human and animal, while emphasizing the main distinction of the human: his capacity to articulate his thoughts. This capacity endows the human with authority over the rest of creation. However, the human is not always superior to animals, al-Tahtawi insists. Animals are more powerful than humans and can inflict pain on them. Animals, he adds, can protect themselves and attack their own kind as well as others, but the human is deprived of these powers. He is exposed to numerous disasters: his skin, for example, cannot protect him against severe cold or heat. Whereas God gave the trees “thick skin,” it did not offer the human the same protection. The human is born powerless and weak. And for the entirety of his life, he suffers illness and pain and cannot enjoy happiness without first going through pain. Al-Tahtawi proceeds to explain how the rest of creation is stronger and more capable of protecting itself against pain. The human, on the other hand, cannot achieve any of this protection, and so he embarks on a long journey of training, experimenting, and suffering. Only this journey will enable him to live on, for he cannot obtain full knowledge of life without confronting obstacles and challenges and without working his way through the pains of life.96 To be sure, for al-Tahtawi, the pains of life are not humanizing, that is, they are not understood as a means to an end. Rather, pain is the condition of every human, and it is by working through it, as opposed to overcoming it, that the human can go about living. Pain is not an obstacle to be overcome, an event to be controlled; rather, pain is the ground from which human action becomes possible. Al-Tahtawi’s examination of the relation between human and animal is not one equating pain and suffering, for only the human seems to be destined to a life of endless pain and suffering. Rather, it is an examination 135

nature

of power relations; whereas forces of nature, including animals, can unleash their powers against the human, as God has empowered them to do, the human, through endless painful experiences, can also attempt to fight back using his capacity to reason. In other words, it is through the articulation of power relations, and the recognition that the pleasure principle can never be satisfied, that al-Tahtawi theorizes the association between human and animal. The admission of pain, together with the relations of violence between human and animal, allows al-Tahtawi to conceive of a different human. If in the colonial rescue missions the association between human and animal sheds light on the constitution of the human as a body out of pain, in al-Tahtawi’s analysis the association between human and animal produces an animal who can fight pain and a human who has to work his way through it. This conception of humanity carries different political operations; it does not allow for colonial rescue missions, nor does it invite humanizing colonialism or humanitarian interventions. The colonial history of animal laws, then, relates to the fate of the human by making it difficult to fully capture colonial humanity without a consideration of animal reforms. Furthermore, in Egypt, animals, and prescribed relationships with them, were central to the constitution of the juridical. Conventional wisdom has animals stand outside the law, which is equated with rights. Because animals in the nineteenth century had no rights of their own, they were considered outside the law. This is why Arendt can declare that the humanity of rightless creatures who are excluded from the law is in effect “mere animality.” Frederick Goadby, of the Egyptian Faculty of Law, similarly excluded animals from the law in his Introduction to the Study of Law. Animals, he argued, like slaves and natural persons, are outside the realm of law and of right:97 “A human being who did not enter into the field of legal rights and duties would, in the eyes of the law, be not a person, but a thing. If such a natural person, in spite of his personality, be treated as a domestic animal and regarded as the property of another, he becomes in law the object, not the subject of rights, as thing and not a person.”98 Even with the advance of humane reforms to prevent cruelty to animals, they were not subjects in the law. On the surface, Goadby’s text repeats the exclusion of the slave and the animal from the law by defining them as things, not persons. Such a “thing” 136

wou nds

becomes in law an “object,” not a “subject” of rights. To be included in the law, one has to be a subject. In other words, Goadby begins with the definition of the law as right and can therefore exclude objects that have no rights. But what if we reverse the argument and explore connections between objects and subjects as they give birth to the juridical? Animal regulations shed light on modern law as nonhumans and humans constitute it, where none are bearers of rights. Animal regulations enable the reassembly of the juridical to include animals, not as creatures with rights but as subjects with effective consequences. To proceed in this way is to suggest that positive law, which claimed to have emancipated the human by moving away from paradigms of natural law, requires nonhumans as much as it does humans. Meanwhile, and paradoxically, the law posits a human said to be free of law’s animality. This is because the self-description of positive law is itself based on relations of exclusion—in this case of the nonhuman. t h e pe rsist e nc e of v iol e nce In his Metamorphosis, Franz Kafka recounts the story of Gregor Samsa, who awakes one morning to find himself transformed into a gigantic insect. Upon discovering the changed nature of their son, and although in shock, the family members provide Gregor with food and clean his room. Their caring albeit distant treatment changes when Gregor leaves his room and crawls into the living room, that is, when he transgresses his inhuman bounds and moves into the human universe. They starve him and then beat him to death. I begin this section with Kafka’s story because it resembles the story of Egypt, in its mixture of violence and care as well as the metamorphosis of humans and animals. The story invites the difficult question of whether the family’s treatment of Samsa is human or inhuman. Kafka brilliantly implicates the family’s violent treatment in the preservation of their own humanity, for it is the threat resulting from the fluid boundaries between the human and the insect that prompts the family to kill their own son. Their care for Gregor and his killing emerge, in Kafka’s story, as two sides of the same humanity. The persistence of wound-inflicting violence in colonial Egypt in the midst of humane reforms invites similar questions, specifically, what forms of violence persisted under the regime of colonial humanity, and how might one explain this persistence? 137

nature

Upon his return to England, Cromer accepted the posts of president of the Research Defence Society and chairman of the Entomological Research Committee set up by Lord Crew with the goal of encouraging entomological research. His acceptance of the first post put him in conflict with the antivivisectionist members of the British Royal Society for the Prevention of Cruelty to Animals. The latter passed a resolution calling for him to resign his vice presidency of the Royal Society. The Council of the Royal Society, however, repudiated the actions of the members and passed a resolution of its own, according to which Cromer should continue to hold the position of vice president.99 Later, Cromer explained his reasons for accepting the presidency of the Research Defence Society: In the first place, I have an abhorrence of cruelty to animals, and have at times been fortunate enough to help in some small degree in the furtherance of measures tending to obviate and mitigate such cruelty as is now practiced. Deeply convinced as I was of the necessity for promoting scientific inquiry, I certainly should not have associated myself with the Research Defence Society had I not, as a preliminary measure, fully satisfied myself . . . that the main accusations brought against the experimentalists were wholly devoid of foundation. . . .

Second, I felt strongly that vivisectionists, and not their opponents, were the true humanitarians; that they were . . . fighting a cause in which not only the whole human race, but also the brute creation, were deeply interested. . . . The consciences of lovers of animals—in other words, those of the vast majority of the inhabitants of these islands—may now be at rest. They may support scientific research in the full assurance that in doing so they will benefit themselves, their friends, their relations, and their descendents, whilst at the same time they will not be giving their adhesion to any principle or practices which the dictates of humanity, reasonably interpreted, could condemn. . . . The vast majority of inoculations involve no pain, or none that may not be truly called trivial; that all experiments involving operations involving pain are conducted under anaesthetics; that the anaesthesia is effective; that the law already provides safeguards against the unnecessary infliction of pain; that if any additional safeguards could be suggested which could be 138

wou nds

untruly or vexatiously restrictive, they should be sympathetically considered; and finally, that in those rare instances where some pain was inflicted, the results achieved justified its infliction.100

The theme of putting pain to use is repeated. Cromer suggests that lovers of animals, and more broadly, humanity, should rest easy when pain is used for the cause of humanity and circularly regulated by this same humanity. Following the publication of the report of the British Royal Commission on Vivisection, and on the eve of his retirement from his post as president of the Research Defence Society, Cromer published an article in the Times reiterating these views, explaining that experiments are legitimate if adequately safeguarded by law and faithfully administered with a view to minimizing suffering as much as possible.101 These were Cromer’s activities after his departure from Egypt and upon his return to England. However, in 1893, while still the consul-general of Egypt, Cromer denied that vivisection was taking place in Egypt.102 The subject of vivisection, however, would return to demand Cromer’s attention again. In 1906, Member of Parliament George Greenwood asked the secretary of state about a series of vivisectional experiments performed on dogs, monkeys, and other animals in the Wellcome Research Laboratories, Gordon College, Khartoum, in the Sudan. The question was whether or not the British government or their representatives in Cairo had approved these experiments.103 The acting governor-general in Khartoum communicated an explanation to the British representatives in Cairo, writing that “no ‘vivisectional’ experiments have been conducted at the Wellcome Research Laboratories, but from time to time hypodermic inoculations have been given to living animals in order to further the diagnosis and cure the obscure tropical diseases to which men and animals were exposed when living in the Sudan.”104 Fighting these diseases was of vital importance to “both whites and natives, and even to plant life, which during the reign of the Mahdi and Khalifa became overwhelmed with parasites, etc.” Furthermore, “in these regions every aid that science can give to combat disease is needed.”105 Dr. Andrew Balfour, who supervised these experiments, explained that “the diseases induced could scarcely be called painful complaints. 139

nature

Doubtless they entailed some suffering, produced emaciation and in a few cases interference with vision but, as far as one can tell, there was no acute pain, and it is worthy of note that in nearly every instance the animal took food freely to the very end of life.” He also added that the “lot of the dogs, which were drawn from the pariah class,” was happier than if they had been left in a starving condition. “The experiments . . . were carried out with every possible care and in as humane a manner as possible. The animals employed were well-housed, properly tended and were provided with ample food and water.”106 Insects, however, though nonhuman, were not to be treated humanely as (other) animals were. As discussed in chapter 4, insects were to be battled, especially in the British colonies and possessions. For insects, as Cromer explained, preyed upon and annihilated the crops upon which humanity largely depended for daily food or which furnished the raw materials for vast industries.107 The same logic sanctioning experiments on animals while prohibiting unnecessary pain was also operative in authorizing the infliction of pain in prisons. The criminal justice system was, and remains, unimaginable without pain, whether directed at the body or the soul. Practices directed at the body continued to prevail in the criminal justice system even after the humanitarian reforms of the nineteenth century. The innovation was in the discovery that pain, too, could be measured and that suffering was not an abstract condition. As with animals in laboratories, the law was to set the limits of sanctioned pain. The measurement of pain allowed its employment for useful ends. Pain that was not employed for proper ends and pain that was not adequately measured were not humane. The law set both the ends and the appropriate measure, and in so doing established the definition of the humane and humanity from which law was generated. Consider the report on prisons discussed above, in which Dr. Crookshank discussed prison discipline. The previous system, he argued, had maintained discipline by force, and prisoners “were subjected to cruelty.” Special rules were therefore necessary to regulate the punishment of prisoners for offenses committed during confinement. Previous means of punishment included the whip, strokes, the indiscriminate application of heavy iron chains and thumbscrews, and the withholding of bread and water for 140

wou nds

twenty-four hours. “These cruelties were not only inflicted for punishing unruly prisoners, but in by far the majority of cases to extract false evidence against innocent people, or for backshish [bribes].” The report described in detail how these means were employed. As for the whip: The prisoner was made to lie on the ground face downwards, and held in that position by a man sitting on his back, while another one held his arms; and [his] ankles were then tightly fastened to the middle of a thick stick (“naboot”), about 5 feet long, which was twisted round once or twice, and then held, well raised above the ground, by two men, whilst a warder, with rhinoceros’ hide whip, inflicted as many as 500 blows across the soles of the feet; the prisoner frequently dies within a few hours of collapse, or if he recovered from the immediate effects is unable to walk for weeks after.108

According to the new rules, the report continued, punishment was “regulated according to the character of the prison offence committed.” Corporal punishment was used only for “aggravated offences.” Other punishments were solitary confinement, a diet of bread and water, performance of the most disagreeable prison duties, leg irons, and chaining prisoners together. The use of the whip, classified as corporal punishment, was limited to twelve to twenty-four lashes. To prevent any abuse of the use of the whip: The Director of the prison alone has the right to order a prisoner to be punished, and except in cases of great emergency, corporal punishment is not inflicted without orders from the Director-General. In all cases where corporal punishment has been administered a Report must be forwarded immediately to the DirectorGeneral, which is recorded in the punishment book and a copy forwarded to the Minister of the Interior.109

This report, and the reforms discussed in it, established the following conceptual changes. First, as has been noted with regard to the classification of punishments,110 here, too, various forms of pain were to be classified and inflicted accordingly for respectively classified offenses. With respect to punishments in general (not specifically to the punishment of prisoners), this logic meant that if an ‘umda (village chief) attacked someone, suspecting that he had committed a crime, his actions were not classified as torture; rather, the latter entailed “harsh cruelty,” directed at weaken141

nature

ing the will of the suspect and leading him to confess. The physical attack would fall under “use of cruelty by a public official,” as the attack was not relevant to any official investigation being undertaken.111 The report also sheds light on the version of humanity that the colonial state introduced in Egypt. In this report, punishments could become humane if administered, regulated, and put to use. That is, the classification of offenses and punishments and the assignment of punishment according to types of offense transform some violent punishments (whipping included) into humane punishments. The humane, in other words, is achieved by means of the correct classification of pain and its appropriate allocation to set ends. Humanity is not realized through the exclusion of others and their different treatment. Rather, humanity is conceived in a process of mastering the classification and administration of that which is within it. Humanity is truly universalized when, in the colonies, pain is properly measured, administered, and instrumentalized. Only pain that serves an end is admitted. Useless, noninstrumental pain is rejected. Various legal measures were introduced in Egypt to further transform certain pain-inflicting punishments into humane ones. A decree from 1893 detailed the offenses for which the whip should be used: hard-labor convicts refusing to work, disobeying orders, encouraging disobedience, attacking prison employees or other prisoners, intentionally destroying clothes or property belonging to prison authorities, or attempting to escape. The article also stated that the punishment of lashing would require the approval of the prisons inspector-general.112 The Prisons Decree of 1901 defined as violations those prisoners’ actions that required some form of disciplinary punishment. These included disobeying the prison chief’s orders; disrespecting an official or a visitor to the prison; laziness at work; cursing, impolite utterances, or voicing threats; impolite behavior; attacking another person; singing, whistling, or making noise; leaving the room or assigned location without permission; destroying or breaking anything in the prison; giving something to another prisoner or taking it from him without permission; and failing to follow orders or prison regulations.113 The punishment for such actions was solitary confinement; putting the prisoner on a punishment diet for no longer than seven days; withholding from the prisoner, for no longer 142

wou nds

than thirty days, a privilege given to his rank; or delaying the prisoner’s promotion to a higher rank.114 A more severe punishment was inflicted for offenses such as attempts to escape, disturbing the peace, attacking other prisoners, and intentionally destroying or attempting to destroy prison property.115 The punishment in such cases was transferring the prisoner to another prison and sentencing him to hard labor for a period not exceeding six months; delaying promotion of the prisoner to a higher rank for a period not exceeding six months; whipping the prisoner (twenty-four lashes for those eighteen years of age and above, twelve lashes for younger prisoners); or chaining the prisoner for no longer than three months. Transfer to another prison and physical punishment required the approval of the minister of the interior.116 Additionally, the whipping of a prisoner younger than eighteen years of age was performed with a stick.117 To administer the infliction of pain humanely, the Prisons Decree also provided that a doctor must examine all prisoners subject to an administrative punishment of whipping, in order to verify their physical capacity to be punished.118 The Committee for Judicial Surveillance issued a circular in 1904 in which it addressed the whipping of juvenile offenders.119 The committee stated that in passing sentences of whipping, “the judge should take account both of the gravity of the offense and of the age and the general physique of the offender.” A boy approaching fifteen years of age would be considered more responsible for his actions than an eight-year-old. The older boy “will also be less affected by any given amount of punishment.” The maximum penalty should be, broadly speaking, imposed on “boys of strong physique who have already been convicted, or are guilty of offences marked by special callousness or indicative of strongly developed criminal tendencies—that is, in cases in which the judge hesitates whether a reformatory or even a prison sentence would not be the right one.” With regard to the numbers of strokes to be delivered, the committee suggested that the following rule be implemented: excluding exceptional situations, the sentences should be six strokes in cases of contraventions, and twelve strokes in other cases. The committee emphasized that this was a suggested rule but was not to be rigidly enforced. The committee added that a sentence exceeding six strokes should not be passed on very young boys, 143

nature

“whose physical development is not equal to that of a normally developed boy of twelve years of age or thereabouts.”120 Traces of this logic of humanity as the measurement of pain are also found in legal scholarship. Amin Shumayyil, editor of the legal review ­ l-Huquq, asked: “What would be more reasonable and less evil? . . . Kill A the killer and take away his precious life, or leave him tortured in hard labor which is living hell, with nothing following it but the grave. The answer is of course hard labor.” Shumayyil argued that humans desire ­alternatives to taking life as a means of deterring others from committing crimes. Such alternative means, however, were not present in all historical times, “because the human at the beginning of his genesis was more inclined to cruelty and harshness, but with the evolution of time and with the establishment of his social organizations, this nature was softened and his tendencies changed. . . . [Today] human nature refuses a series of old habits from the harshness era, disapproves of them, and sees ignorance and cruelty in that age, despite the fact it [human nature] was part of it.”121 This logic of measured and instrumentalized pain was also operative outside of prisons, although it was most explicit inside. Article 113 of the 1904 Penal Code illustrates the same point. This article criminalized government officials’ cruelty and attached a punishment of imprisonment (not exceeding one year) or a fine of twenty pounds. In one of its verdicts, however, the Court of Cassation ruled that the use of force necessarily involved in making an arrest or in keeping a person under arrest did not constitute an offense under Article 113 of the Penal Code, even if the arrest or detention was, in fact, illegal.122 Separated by more than a century, these painful strategies of humanization were strikingly similar to Bentham’s jurisprudence. Bentham’s arguments for the protection of animals have been studied extensively since the advent of animal rights advocacy.123 What is less known is his position on the question of torture, a subject on which he produced two manuscripts. In these, he justified the use of torture in some circumstances, and further maintained that under certain conditions, torture was more easily justified than punishment and should be made a regular part of the penal system.124 Torture, for Bentham, was the infliction of pain on a person for purposes of coercion: to “compel him to do something or to desist from doing 144

wou nds

something.”125 Bentham treated torture as analogous to punishment in general, for punishment was yet another means of compelling obedience and essential to the very being of a court of justice. The problem with imprisonment, he argued, was that it might last longer than necessary, if its objective were fulfilled before the end of its duration, or that it might not last long enough. Torture, on the other hand, allows for its termination as soon as the purpose for which it has been applied has been achieved.126 ­ entham’s conclusion and proposed policy was to legally regulate, rather than B outlaw, practices of torture in order to ensure their adequate employment. In the case of colonial Egypt, humane reforms were directed at the ­alleviation of suffering. Suffering, in turn, came to be understood as resulting from the harsh, disproportionate, and ineffective exercise of cruelty. The project of juridical humanity did not aim at eliminating wounding but rather at preventing what it defined as unproductive and disproportional cruelty, that which exceeded or fell short of its objectives. As long as violence was administered and classified, and as long as it was potentially productive, it could be humane. Torture became a means of punishment, whipping a means of disciplining, chaining in irons a means of controlling, and experiments on animals a means of bettering the lot of street animals. In the process, useless pain began to horrify—to count as cruelty—and humanity bore no fixed meaning. While informing the law, humanity was simultaneously established by it. The relationship between law and humanity was therefore one of performativity. n on i n s t ru m e n ta l pa i n The theoretical equation between humanity, a life that is blessed with less pain, and a law that delivers this promise, makes it difficult to “think” the persistence of suffering and pain in the fabric of humanity and in the modern law that sews it. The main difficulty does not lie in locating pain and violence as such in the law or in the constitution of the human, for the rule of law, as will also become evident in the chapters that follow, openly sanctions the infliction of regulated pain. In this sense, there is nothing remarkable about the recovery of the pain that modern law itself declares in the open to be necessary. The recovery effort is undertaken in order to reconstruct what Talal Asad calls the “paradox of cruelty” 145

nature

constitutive of modern law: modern law wishes to combat premodern suffering, yet continues to instrumentalize it toward modern law’s own ends—and, consequently, to destabilize its grounds. Furthermore, the recovery effort sheds light not only on the persistence of violence and pain but also on the specific work they accomplish in their deployment: bringing about the end of humanity by “humanizing” the inhuman and the nonhumans of the world. This is the argument that Talal Asad advances in his reflections on cruelty and torture, pain and suffering.127 It may be added that it is not violence as such that deserves our critical attention, but its particular operations. Far from blinding us to the violence of the law and of humanity, the difficulty with the critical response to the liberal equation between dehumanization, on the one hand, and violence and illegality, on the other, is that it tempts us to recover the persistence of violence and pain from within the instrumental logic of the law, where pain is a means to the end of the human. In that sense, then, it forecloses other explorations of violence and pain. One is absorbed in law’s instrumental logic and has no way to suspend it in order to further think of pain outside of law’s logic. Walter Benjamin, in his “Critique of Violence,” attempts precisely that “release” of nonjuridical violence from the juridical logic of means and ends. He does so through an insistence on “divine violence” that does not threaten but strikes, does not build but annihilates—indeed, a violence that knows only the end of destruction, and in this sense knows no end. Drawing partially on Benjamin, I ask whether one can move beyond the “juridical” for thinking about the violence of the juridical. Benjamin’s and Asad’s understandings of the violence of the law follow law’s instrumental logic closely, although they complicate it by elaborating on unacknowledged ends of the law’s violence. These are no longer the ends of restoring order and peace, as liberal theory has it, but the end of redeeming the human, in Asad, and the authority of the law itself, in Benjamin. So far, I, too, have followed their analysis. But in conclusion, I want to ask whether there is a way to think through the pain-inflicting violence of the law outside the framework of instrumental logic. Is there a way to avoid reproducing the means-ends relationship, not only by introducing another end but also by suspending this vocabulary altogether? 146

wou nds

Let me answer this question by returning to the question I started with: How could a regime that enacted so much violence in occupying Egypt enact so many humane reforms in governing it? I have argued that once the human is defined as a body delivered from pain, humanitarian and colonial interventions become more able to accomplish such delivery. This very definition of the human, at the core of humane reforms, is itself productive of more violent interventions. These are not limited to the battles of occupation; they also include such practices as vivisection for the sake of humanity and well-administered torture that puts pain to proper use. Thus, the very human cultivated by the law, through the sensibility of humaneness, begins to inspire its operations. In its capacity as the end of the law, the human becomes its launching ground. This is how we can explain the persistence of wounds in the midst of humane reforms. But if we accept this explanation, the means-ends understanding of the relationship between law’s violence and the human will need to be reversed: the end begins to inform the means. The trouble is that when means and ends collapse into one another, when the human becomes both the end of the violence of the law and its launching ground, from where could the criterion for regulating violence originate? Absent distinct means and ends, would not this seemingly instrumental violence be in fact also arbitrary? The next chapter pursues some aspects of these questions.

147

chapter 4

Battles

Their very commonness may have been responsible for their having received so little attention, for, like the sun and the rain, they were taken as a matter of course. As locusts were associated with drought, fleas with dogs, and flies with horses and cows, so all insects were, in primitive, and even in modern times, thought to be inevitable: a gift or a scourge from Heaven. It seems remarkable that from the dawn of man to the present generation so little actual knowledge was accumulated about such annoying, destructive, degrading, and abundant forms of life. e . o . e s s i g , “A Sketch History of Entomology”

t h e f i r s t t w o d e c a d e s of the twentieth century witnessed inter-

national mobilization against a major enemy that invaded the colonial state of Egypt. If it had succeeded in escalating the destruction it engendered, it would have made the victory of the British in the battle of Tel el-Kebir pointless.1 Like the British, it arrived from the outside, but unlike them, it was not a competing European colonial power. Though it will later be classified in accordance with the nation-states from which it originated, the reach of this enemy was potentially universal. Like all colonial powers, this enemy recognized no territorial or national boundaries. Its armies were massive but often hidden and hard to locate. Arriving creeping, or in waves, they were always a threat, a danger that could not be ignored. But unlike the British troops who occupied Egypt in 1882, the forces of this enemy were nonhuman; they consisted of insects, specifically particular populations of worms that targeted cotton fields: cotton worms.2 It made sense, therefore, that they became the enemies of human-led colonization projects. The losses to the British and to the world cotton industry were tremendous. The colonizing forces of nature imposed bloodless destruction and annihilated a vast area of cotton fields. In 1904, for example, the cotton worm caused damage 149

nature

estimated at £200,000, and in some provinces it infested a third or even half of the cotton fields.3 Cotton worms posed the greatest threat to the British colonization of Egypt, where the peasantry cultivated cotton for the international market and to pay off Egypt’s debts to international bondholders.4 Given the presumption that peasants had failed to arrest this new wave of nonhuman colonization, they too, along with the cotton worms, became the target of the colonial state. In the words of Moritz Schanz, a delegate of the German Colonial Economic Committee at the International Cotton Conference held in Egypt during autumn 1912, the peasants were “fatalistic” and took no notice of the directions that the government issued to combat the cotton worms.5 The colonial aspiration was not to eliminate the peasants, as it was the insects. In the absence of chemical methods for solving the problem at the time, and because the worms had to be picked off the cotton plants manually, the only weapon available to the state was the labor of peasants. The state’s objective was therefore to recruit them in the fight against nature’s attacks. Securing this objective seemed to call for penalizing measures, as teaching the peasants methods of removing the worms was not enough to persuade them to undertake their new task. New penal reforms forced particular forms of human labor on the peasants, that is, new ways of relating to nature in the process of labor. Actors in the international cotton market welcomed this aggressive labor-penalizing plan. In a report that the Delegation of the International Cotton Spinners’ and Manufacturers’ Association published about its visit to Egypt in 1912, a sense of satisfaction concerning the measures taken against the insects and the peasants was expressed: By Khedival decree all leaves on which the Cotton Worm (Prodenia litoralis) are found must at once be picked and burnt. Children and men from 9 to 25 years of age may be requisitioned by the Government for that purpose at the rate of pay ruling in the district. If the owner of an infected field does not attend to the picking of the eggs, the Government authorities have the work carried out for him and charge him with the cost; he is also liable to imprisonment. The Director of Agriculture is proposing that not only shall such delinquents be punished by imprisonment, but also by hard labour; this to consist in picking the infected leaves in other people’s cotton-fields.6

150

bat tles

This delegation was one of many that operated in Egypt, whose cotton fields attracted many scientists, merchants, and capitalists. The worms affected each and every one of them. This chapter recounts the story of the worms’ visits to the cotton fields of Egypt, as well as the colonial scientific and legal forces that the state marshaled in the battle against these new, destructive colonizers.7 Crucial to the battle were the different legal schemes enacted to regulate the relationship between peasant laborers and nature. The k ­ hedival decree referred to above is only one such instance. This decree was part of a broader capitalistic-scientific articulation of the status of nature; international and Egyptian actors in the penal and scientific/ agricultural fields took the invasion as an occasion to reflect upon the idea of nature and to theorize its meanings and powers in preparation for the war against some of its forces.8 By documenting this legal-scientific war on insects, this chapter probes the meanings of nature and the human laborer that both the war on insects and the penalization of peasants engendered. Colonial officials and scientists argued that peasants’ labor had failed to exhibit the characteristics of fully developed human labor—namely, mastery and control of nature, the initiation of some natural processes and the elimination of others. The response was to introduce agricultural legalities that compelled the labor of peasants as a way for them to attain humanness. This chapter then elaborates on another dimension of colonial juridical humanity engendered by agricultural legalities that targeted peasants as laborers. I ask: What does the encounter between peasants and nature, which colonial law regulated in the case of the insects’ attacks, reveal about the cultivation of particular human laborers in relation to nature? And to what extent was this war productive of new ways of becoming a human laborer, a laborer that satisfied the requirements of capitalist modernity and early twentieth-century theories of nature? To address these questions, it is important to account first for earlier law-induced campaigns that aimed to establish the humanity of peasants. Of the different population groups in Egypt, the peasantry was, from the beginning of colonial rule, one important target for the humanizing objectives of colonial law and state. Constituting the bulk of Egypt’s population, the wretched peasants were, from the perspective of the colonial humanization machinery, subjects always objectively available to incite the activation 151

nature

of the state’s disciplinary operations. As discussed in chapter 2, talk of the inhuman conditions of the peasants and the necessity of elevating their status to that of the human was abundant. British officials were not the only ones who targeted the peasants for reform. The Egyptian nationalist elite proposed additional schemes.9 For the British colonial officials and other international merchants and scientists, however, the peasants’ availability for having their human status cultivated was associated with their fulfilling, through their labor, the British market demands for increased cotton production. Without the peasants, the fertile nature of Egypt was useless; they were capitalism’s main conscripts. The international movement for the abolition of slavery and the discovery of more productive humane methods of labor found one of its sites of operation in Egypt.10 Methods for exploiting peasant labor, therefore, had to be efficient, and like pain and cruelty, were measured and calculated, in this instance for the ends of increased production and more efficient labor. While slavery was not a significant method of labor exploitation in Egypt, forced labor (or corvée labor) was. Hence, legal humane reforms called primarily for the elimination of the use of the whip against the peasants and an end to the regime of forced labor. The whip and forced labor were practices whose visible signs of violence confiscated the freedom of peasants and hence called into question their qualification for free wage labor. The elimination or regulation of these practices was to contribute to humanization. What was the relationship between these two campaigns targeting the peasants: the one that penalized them when their labor failed to master nature and free Egypt from its ravages, and the other that humanized them so that they could become free laborers? How did the state reconcile humane reforms that regulated the use of force against the peasants and agricultural legalities that cultivated human labor through penalization? And if the regulation of forced labor was a technology of humanization, wasn’t their penalization upon failure to eradicate cotton worms a new institution of forced labor? In answering these questions, I develop the following argument: Colonial humane reforms aiming to minimize the unfreedom of the peasants excluded free laboring activities from their fields of operation. These reforms limited their mission to the regulation of force and unfreedom, 152

bat tles

exercised through forced labor and the whip. Agricultural/penal legalities, on the other hand, included laboring activities as a site for the cultivation of human labor. Meanwhile, the penalization of peasants did not contradict the humanizing reforms. Penal law, by the late nineteenth century, had purified itself conceptually from force and unfreedom—the hallmarks of the inhumane in relation to labor. But the penalization of the peasants in the war on insects revealed another concern for the human, this time against the forces of nature: the peasants were required to counter nature as a way of practicing human freedom from nature. Put differently, the exclusion of free laboring activities from humanizing reforms stemmed from their supposed freedom; their inclusion stemmed from their supposed subjugation or unfreedom in relation to nature. In both cases, the human came to be opposed to unfreedom and to force, whether it was the force of forced labor, of the state, or of nature. The colonial state could finally realize itself as free from forced labor, so that it, too, could gain its freedom. As Gyan Prakash puts it in relation to India, the colonial state there privileged the present as free of power because it valued freedom. This in turn resulted in the “representation of history as a process leading towards the realization of the lost human essence—freedom.”11 Significantly, force remained operative. Force was either relegated to the realm of private property or took on the conceptual appearance of penal­ization. Therefore, penalized labor, while it recalled the institution of forced labor, also departed from it in that penalized labor no longer registered the practices of unfreedom in the colonial legal liberal regime that regulated forced labor and freed labor from the state. hum a nizing the peasa nts In the second half of the nineteenth century, Egypt became an important producer of cotton for the world markets. With the American Civil War, four million slaves gained their freedom in the nation that dominated world cotton production. This disruption of the relationship between cotton production and slavery led to a search for new sites for the cultivation of cotton. Paradoxically, the emancipation of slaves in North America accompanied the intensification of imperial control over potential cotton-growing countries. One country where British colonial bureaucrats and Manchester 153

nature

manufacturers in the textile industry embarked on a race to grow cotton for world markets was Egypt; India and Brazil were two o ­ thers. By 1883, cotton from these three countries captured a full 31 percent of the continental European market—almost twice as much as in 1860.12 The production of cotton for the world market started decades before Britain occupied Egypt. Cotton production quintupled between 1860 and 1865. By 1872, merchants shipped more than 200 million pounds from the port of Alexandria to European destinations. By the time Britain occupied Egypt, the latter was relying on cotton production alone, which made it more difficult to resist colonization.13 Crucially, cotton production in Egypt and elsewhere did not rely on slave labor but on wage labor and sharecropping. And while forced labor was used, gradually being abolished by the 1880s, its primary utility was for public works projects that maintained and extended the country’s irrigation system. This labor was not enslaved or coerced; it was enmeshed in debt. As historian Sven Beckert puts it, “[by] 1865, it had become clear that a novel combination of land, capital and state power had to be found to secure the fabulous amounts of inexpensive cotton needed by the cotton manufacturers the world over.”14 The lesson the war taught the manufacturers was that labor, not land, constrained the production of capital. Indebtedness, Beckert ­argues, became the new technology of labor management. Moneylenders and, later in the nineteenth century, banks advanced money to peasants and obtained unlimited title to their labor as well as to their property.15 In Egypt, the result, according to Gabriel Baer, was the rapid growth of a class of medium landowners at the expense of an ever-increasing number of landless peasants.16 Alan Richards estimates that by 1907 the class of landless peasant laborers stood at 37 percent of the population.17 The peasants constituted the most important population for the colonial state and for the cotton merchants: “the Ministry of Agriculture, the Royal Agricultural Society, the State Domains and the ‘Fellaheen’ are the corner-stones on which the whole of the cotton growing industry of Egypt rests.”18 Cotton merchants relied on state power and legal regulation to enable conditions of heightened production. J. McFarlane wrote in 1909: “The Egyptian fellah is not only a good workman, but he possesses considerable physical courage. Under good government, and with 154

bat tles

better economic conditions, he will certainly recover his manlier virtues, and there is little reason to doubt that, in time and with care, he will again become worthy of the land in which he lives.”19 How did the colonial state elaborate on its projects of care for the peasants? What areas did it isolate for its reforms to target? In a memorandum submitted to Lord Cromer (then Evelyn Baring) in June 1888, Mr. F. S. Clarke compared the present condition of the agricultural population of Egypt with its condition under the rule of Khedive Isma‘il: Much has been written of the misery and the oppression formerly endured by the fellah. The courbash [whip], the corvée [forced labor], the bribery and extortion on the part of the Mudirs [district governors] and the village Sheikhs, the injustice of the incidence of the land-tax, the hardship of the military conscription, and the corrupt management of the Irrigation Department, are all mentioned as having contributed to render the condition of the peasant one of almost unparalleled poverty and wretchedness.20

Clarke then proceeded to outline the reforms that the British introduced to alleviate the suffering of the peasantry. Until 1871, he argued, taxes were not determined in any rational way. They were neither proportionate to the quality of the land nor to the ability of individuals to pay them. The statutes passed after 1871 regulating the assessment of land tax were virtually ignored. The government continued to order the collection of taxes whenever the needs of the treasury required it. Unable to produce the requisite money, taxpayers were obliged to sell their standing crops at half their value, borrow money at high rates of interest, sell their cattle, or part with their land.21 Furthermore, the central authorities did not supervise the exaction of taxes, which was carried out arbitrarily. Imprisonment and the whip were used freely to enforce payment. Forced labor, according to Clarke, was another disease from which Egypt suffered. It was an unjust system resulting in a “waste of time and labor” because its “management was in the hands of irresponsible and corrupt officials.” Worse, forced labor was not used for “the public interest alone.” It was employed for the “cultivation of the vast estates of [the khedive] Isma‘il Pasha.”22 Irrigation work, upon which the fertility of the soil de155

nature

pended, was also unsuccessful, since the Irrigation Department administering it was mismanaged and hence abusive to peasants. The engineers had “arbitrary powers as regards the regulations concerning the construction of dams, sluices, and pumps, and they naturally carried out such works for the convenience of the richer and more influential proprietors, who, doubtless, will repay them for their services.” As a result, the “poor suffered, and the quantity of water obtainable for the fields depended on the means at the disposal of the proprietor.”23 The British occupation, Clarke continued, relieved the peasants. First, the use of the whip was prohibited. Second, forced labor was partially abolished and the number of men forced into work gradually fell. This partial abolition was accomplished as the result of “superior engineering skills, whereby a great deal of useless labor [was] dispensed with, and in part to the use made of the Barrage, which had been abandoned for many years, and which [was] now being repaired and strengthened.”24 Furthermore, the introduction of “money ransom” lightened the burden of forced labor. An individual who was liable to be called for forced labor could redeem himself by paying an amount of money determined according to the province in which he lived. In addition, the Irrigation Department brought about improvements in the general welfare of the population in its just supply and distribution of water to all people. Finally, the general indebtedness of peasants to local moneylenders had decreased, resulting in a continuous decline in the amount of land expropriated. The peasant came to know the amount of tax he had to pay and when it would be demanded from him. The peasant was “gradually emerging from the oppression and misery in which he had been plunged from time immemorial.”25 In this narrative, taxation, forced labor, the whip, and irrigation administration were the primary areas of reform. These were in effect the famous three Cs that Cromer also spoke of: corruption, courbash, and corvée. Clarke’s report was not exceptional but rather one of many reports emphasizing the benefits that the agricultural population stood to gain from colonial reform.26 Some of these reports went further and argued that colonial reforms were not sufficient, as they had not yet brought about the desired results. Reporting on the state of Egyptian peasants, W. Willcocks, secretary of the Aborigines’ Protection Society in Britain, wrote that the 156

bat tles

“keystone of the British occupation of Egypt was the fact that the fellaheen were with them.” The British, however, had lost the friendship and confidence of the fellaheen with their failure to ensure fair treatment at the hands of the local Egyptian authorities. Willcocks suggested two additional reforms to maintain peasant loyalty and devotion to the British: first, that perennial irrigation be provided in Upper Egypt, where peasants owned small lots of land; and second, that state lands in Lower Egypt should be divided into small plots of three to five acres and sold at reasonable prices to landless peasants.27 The use of the whip in the collection of taxes and in criminal investigations was banned in 1883.28 In 1921, the Ministry of the Interior prepared a report evaluating the reform, based on information gathered from British consuls throughout Egypt. Some of them stated that the whip was no longer in use. One such statement was made by Russell Pasha, who began his career as a subinspector for the Ministry of the Interior in rural Egypt and worked his way up to the position of chief police inspector in Cairo. Other British officials reported that, whereas officials themselves did not use the whip, others used it in private domains to force peasants to work. Most of the British consuls could not testify with certainty that the whip was not used in private domains, and one argued that inspectors used the whip at the request of landowners. Some also indicated that ‘umdas (village chiefs) used whipping as a means of punishment. The British deputy-consul in Mansura, a Mr. Kent, stated that the whip was only used against notorious criminals, owing to difficulties in gathering incriminating evidence against them. Thus, we learn that the use of the whip was not entirely abolished. Only state officials were penalized for using the whip in the collection of taxes and in criminal investigations; but state officials, with the exception of those overseeing forced labor, no longer interacted with peasants in their laboring activities, which were relegated to the private domain. The ban on the use of the whip did not apply to landowners. What is the logic organizing these humane colonial reforms in relation to the peasants? What are the reforms’ sites of application? The different reports concerning the reforms reveal that they concerned themselves with a great deal but not with one major activity: the free labor of peasants. Reforming taxation and irrigation was of course necessary so that 157

nature

the peasants could find some utility in cultivating cotton. The more distinctive humane reforms, the prohibition of the use of the whip and the regulation of forced labor, expanded the space of freedom of peasants and minimized the use of force against them. Crucially, these reforms did not intervene in the free laboring activities of the peasants. The ban was on the use of the whip by state officials, not by landowners or managers of private estates. The objective of the regulation of forced labor was to free, as much as possible, the laboring activities from the state, not to subject them to its force. Freedom, then, from the force of the state and its officials was a hallmark of these reforms. Free, unforced agricultural wage labor, the activity in which the vast majority of Egyptians were engaged, was not addressed by the humane reforms. Peasants’ humanity consisted precisely in this abandonment of free labor. What facilitated this view of the humane is that criminal law purified itself conceptually from force and unfreedom in relation to labor. By 1883, the year of the first Penal Code, which replaced previous statutes, decrees, and regulations, criminal legislation had for the most part expelled labor from its purview. As recounted in chapter 1, lawyers and colonial officials considered the codification of the penal and civil codes to be markers of progress in relation to the khedival past. To them, one of the main ills of the khedival legal system was its exploitation of the peasants by either forcing labor or punishing failures of duty. Often cited as an example of this force is the Cultivation Statute of 1829 (Qanun zira‘at al-fallah wa-tadbir ahkam al-siyyasa bi-qasd al-najah [Statute for Successful Peasant Cultivation and the Application of Government Regulation]).29 Indeed, the Cultivation Statute, together with the legislation that followed, concerned itself with rural crime and included as crimes the management of the laboring activities of peasants by punishing over seventy failures of duty.30 These failures included abandonment of cultivation, neglecting the plowing of the land, and failing to fertilize and macerate flax.31 As Sir John Bowring, advisor to Mehmed Ali Pasha (governor of Egypt from 1805 to 1848), put it: “The excuse alleged for forcing a particular cultivation in Egypt is, that the lazy habits of the fellaheen would induce them to abandon cultivation altogether, or at all events only to produce the articles necessary for their own consumption, 158

bat tles

and such as required the smallest application of labour, were not the despotic stimulant applied.”32 But while punishment was used to force peasants into production, the statute’s name did not indicate its penalizing character but rather registered the peasants as laborers subject to the state’s dictates. Criminality was not the mediating legal framework. Meanwhile, the other penal legislation, Qanun-i siyasiye, of September 1829, which historian Rudolph Peters located in the Egyptian archive, did not record the laboring activities of the peasants.33 In contrast to the Cultivation Statute and the khedival legacy that followed, colonial criminal law as of 1883 established itself as autonomous and independent of other fields of power, such as agriculture and administration. In this capacity, it was therefore less of a site of force and subjugation of the peasants as laborers. Yousef Nahhass’s classic work on Egyptian peasants, The Peasant: His Economic and Social Conditions, reflects this understanding of the 1883 reform.34 Originally published in French in 1901, the book details “the miserable reality of Egyptian peasants” from the eighteenth century onward. It examines the living conditions of peasants in their homes, in society, on their land, and as agricultural laborers. Nahhass argues that the precolonial legal system exploited peasants because it did not recognize rights that protected them against the arbitrary practices of local officials. For Nahhass, one main reason for peasants’ misery was the absence of a separation between the judicial and the administrative branches.35 With the establishment of the national and the mixed courts, this relationship between judicial and administrative authorities disappeared. Peasants might have found these courts to be “too complex for the ignorant peasant,” but they nevertheless believed that the courts “guaranteed them equality and justice.”36 While Nahhass’s book lauded the colonial legal system in general, a criminal law textbook, titled Al-Wajiz fi al-qanoun al-jina’i (The Basics of Criminal Law), praised the related developments in criminal law.37 Published sometime between 1904 and 1907, its author, ‘Umar Mustafa, was both a lawyer and an instructor in the Khedival School of Law and the Police School. Parts of the book articulate the march of penal progress from the Greeks and Romans to his own time. Many changes manifest this progress for Mustafa: for example, that “criminal jurisprudence 159

nature

was considered part of civil jurisprudence and was not an independent branch as is the case today. Independence from civil law began to appear toward the end of the thirteenth century.”38 Mustafa narrates this growing independence up to the penal codification movement of the nineteenth century, which, he argues, effected a coup in penal jurisprudence. Instead of a medium of revenge and torture, punishment became a tool for the defense of human society, the maintenance of order, and the protection of the self, dignity, and property. Penality became a fully scientific field. As for Egypt, his discussion of the Cultivation Statute is descriptive; but in his discussion of the khedival penal statute of 1855, he criticizes its lack of specialization: the statute was not limited to crimes and punishment but included unrelated matters such as the disciplining of officials and the enforcement of payment of taxes. In this sense, the 1883 Penal Code constituted a departure, representing what he suggests was a more humane criminal system. Mustafa was able to celebrate the 1883 penal reforms and to dismiss the khedival legal order because the restructuring of the field of penality enabled the disassociation of colonial criminal law from force, violence, and unfreedom, specifically in relation to labor. By the end of the nineteenth century, there were already processes in place separating the fields of agricultural labor and penality. Unlike during the khedival period, colonial penal policies came to be confined mainly to criminals threatening the cultivation of cotton from the outside, not to laborers engaged in its cultivation. Criminal law—previously associated with the suffering of peasant laborers—became purified from the direct management of agricultural labor. Until the cotton worm attacks, penal codification enacted in the colonial era introduced new practices of punishment for “rural crimes” but made no reference to failures of labor. The annual reports of the British advisor to the Ministry of Justice testify to this purified structure. The sections on crime in these reports make no reference to questions of disobedient laborers or the management of labor. The reports of the procurer-general follow the same logic. For example, in his report on the work of the national courts for the year 1891, the procurer-general detailed the offenses examined by his office, and references to crimes of labor are notably absent from the 160

bat tles

report.39 The offenses mentioned consisted in crimes, misdemeanors, and contraventions. The crimes and serious misdemeanors included murder, attempted murder, aggravated assault, robbery, attempted robbery, theft, the destruction of crops, cattle poisoning, misappropriation, arson, obtaining by false pretences, rape and indecent assault, forgery, and corruption.40 Similarly, a circular from the Ministry of the Interior issued to the various districts explicitly stated that, whereas the police should be engaged in tracing criminal activity, agricultural inspectors should work on the collection of revenues, gathering peasants for public works (forced labor), and carrying out other administrative tasks. A separation between the penal and the agricultural-administrative realms was effectively instituted.41 The establishment of a Ministry of Agriculture in 1912 signified the birth of a separate governmental field of intervention—nature. The Ministry of Agriculture was also separated from the Ministry of Public Works, which undertook the construction of the irrigation system. Agriculture was understood to be a separate and distinct field of knowledge requiring its own expertise. The judge became the guardian of the Ministry of Justice, the mudir (provincial governor) the guardian of the Ministry of the Interior, the scientist the guardian of the Ministry of Agriculture, and the engineer the guardian of the Ministry of Public Works. By freeing peasants’ labor from criminal law during the first three decades of the colonial state, the law also filtered out practices of force and unfreedom—what became the hallmark of the inhuman in relation to labor. The marker of the new criminal law was that of independence from other fields of power. The humane reforms abolishing the whip and regulating forced labor only intensified this dissociation between the field of penality, on the one hand, and force and unfreedom, on the other, in relation to labor. Progress triumphed. Left behind were free peasants to be managed by the technology of private property. The cotton fields continued to be inhabited by peasants, who woke every morning to work the fields; they spent long hours there, cultivating a crop that they could not use for their own consumption and earning wages barely sufficient for their survival. None of these activities, as recounted in the Egyptian collective memory and depicted in the literature of the time, were mentioned in the texts of colonial reform. Left in the fields, these experiences were 161

nature

excluded from the chain of reference that produced the final efforts of the project of humanization.42 Where was the new free labor free to go? Who managed peasants’ labor once it was freed by the state? Private property became the new technology of management. Governmental figures for the year 1894 show that 42.5 percent of the land in private ownership was held in estates of fifty acres and above; this proportion grew to 45.1 percent in 1907.43 The increase resulted mainly from the sale of 450,000 acres of Da’ira Saniyya land (land owned by the ruling khedival family) between 1900 and 1906, most of which was purchased by large landowners or land companies. Meanwhile, medium estates broke down into increasingly smaller properties. Roger Owen’s calculations of the division of property show that by 1907, of 1,700,000 rural families, just over one-twelfth owned sufficient land to secure an adequate living for themselves; another two-thirds possessed some property, which was not sufficient to satisfy their needs; and a quarter owned no land at all. With the steady growth of the population, the reality grew even grimmer.44 Under British colonial rule, the majority of the rural population either did not own sufficient land to make a living or else were landless; in both cases, they either had to rent land or become wage laborers.45 The calculations of Fatima ‘Abd al-Wahid, for example, indicate that the percentage of small landowners (those who owned five acres or less) stood at 92.6 percent of the total landowners in 1914.46 ‘Abd al-Wahid further states that the average area of land owned by those in this group in 1914 was 1.006 acres, which had fallen to 0.82 acres in 1934.47 In addition, the vast majority of small landowners were unable to rent land, as they could not afford the rent and landlords did not trust that they were capable of meeting the financial responsibilities. This group of peasants were compelled to work for others. In 1929, deprived peasants constituted 88.61 percent of the total rural population.48 What Egypt witnessed prior to the British occupation was a gradual transformation to rural wage labor and sharecropping. Peasants worked for other landowners under various relationships of labor. Some were permanent wage-laborers, while others were seasonal laborers. There were also those who worked on plantations that were divided into small plots 162

bat tles

and leased to peasant tenants: this was the sharecropping system.49 By the time Britain occupied Egypt, the process of creating rural wage-laborers and sharecroppers was already under way thanks to land confiscation. Unlike the early nineteenth-century precolonial state, the late nineteenthcentury colonial state was created from the lack of a need to supervise the labor of peasants. The colonial state emptied itself of those specific responsibilities, which were instead relegated to private landowners (on large estates or otherwise), who employed peasant workers or leased land to them.50 This transfer of responsibility produced a state defined in part by its relationship to private property, which was the new legal technology of labor management. Private property replaced state law, the reconfiguration of which as positive law enabled it not to assume labor management. This process of relegation was itself constitutive of the state and positive law. The boundaries of the state and positive law that separated them from the economic realm did not mark given exteriors. To look for fixed boundaries is to assume that the state, the law, and the economy were preestablished entities with given, bounded structures that could be posited beside each other.51 The relegation of labor management was essential to the strength of positive law as part of the colonial economic and political order. Colonial positive law could now live up to its promise to Egyptian peasants, to liberate them from force, precisely because it no longer cared for their free labor. It could abandon them, in their freedom, to private employers as subjects governed by private forces and make their absence from the force of law a measure of their redemption. Humanizing reforms targeted many aspects of peasants’ lives but excluded their chief activity: their free labor. This exclusion marked the humanizing practices of juridical humanity. And yet, the specific jurisdiction of humane reforms, which excluded free labor, was not the only site where peasants’ humanity was cultivated. The singular focus on humane reforms limits the exploration of the human to how reforms cemented it—which I have to this point considered as the main site for the production of juridical humanity. To recall, chapters 1 and 2 examined juridical humanity in relation to the questions of history and temporality. Reforms were an important site for that analysis because they inscribed Egyptians in a progressive temporality aiming toward 163

nature

the human telos. Chapters 2 and 3 also examined the persistence of the inhuman in the human as well as the regulation of violence and its instrumentalization toward the ends of the law and the human. In these chapters, too, reforms, fashioned as temporally progressive, were a crucial site because they offered the promises of redemption and delivery from pain. But restricting the analysis of juridical humanity to humane legal reforms limits it to what the colonial state or colonial law labeled as humanizing, civilizing, and redeeming, that is, to legally induced becoming. Meanwhile, in colonial Egypt, sites where juridical humanity was being cultivated were not limited to legal reform or legal becoming. They also consisted in legal practices and particular legalities, regardless of whether or not these were reformist, temporally transitional, or oriented toward the future. These legalities forced a formation of the human who was not the telos of the humane. As such, these legalities invite an exploration of the human in relation to concerns other than pain and suffering. For juridical humanity, as the historical exploration of the treatment of animals in chapter 3 began to show, also asserted itself and articulated its domain by cementing a relationship with the nonhuman, specifically with nature. And legalities governing nature were as crucial in the cultivation of the human. Nature, in modern colonial Egypt, as with liberal modernity more generally, was another site against which, or upon which, the human was being cultivated. Because nature, too, exercised force, freeing peasants from its force, which was representative of unfreedom and necessity, was a critical technology for the cultivation of the human. Two forces of nature demanded the attention of the colonial state— the Nile and insects. Recurrent floods of the Nile required governance;52 continual attacks of insects incited campaigns to eradicate them. The Nile and the insects were powers to contend with, or to resist. They, and the nature they belonged to, exercised what I call, following Lauren Daston and Fernando Vidal, “authority.” Daston and Vidal probe the moral authority of nature and examine how it “works in different times and places, why it is a force to wield or to escape, and to which domains it does (or does not) apply.”53 In what follows, the focus is on the political authority of nature, and in particular on the legal campaigns against one force of nature’s authority: insects. Crucially, the laboring activities of the peas164

bat tles

ants resurfaced in these legalities and became part of the state gaze, its positive law and its security apparatus. The resurfacing of peasants’ free laboring activities in these sites did not simply constitute a trace of that which was erased from the state gaze, a specter from the khedival order that governed peasants’ labor by punishing it. Rather, something novel was at stake. By governing peasants’ laboring activities, colonial law secured the presence of a human peasant laborer—a laborer able to practice freedom and mastery over nature. Such freedom and mastery turn out to be important episodes in the history of juridical humanity in colonial Egypt, which also depended on particular articulations of the authority of nature, on the particular ways the exertion of its powers came to be understood. t h e au t hor i t ies of nat u r e Scholarship on colonialism and racism presents an important critique of the nature-culture distinction. Colonialist discourse and practices located the colonized on the side of nature, that is to say, on the side of that which is fixed, eternal, and non-evolving, but also universal.54 By pointing to the constructedness of this distinction, students of colonial histories have revealed the colonial power operations of this distinction and the political ends toward which it was deployed. By suggesting it is fabricated, this scholarship has demonstrated that the association of the colonized with nature is an effect of discourse. But nature during colonialism was not only the Other against which culture or society constituted itself. Further, the colonized were not always on the side of nature in the sense that they were temporally fixed, because nature itself was not always eternal, stable, and objectively given.55 In colonial Egypt, nature came to be understood as consisting in powers that exercised authority over Egypt, the Egyptians, and the colonizers. This authority, following Daston and Vidal, is a problem—a research problem, which, as they argue, posits the question of nature beyond controversies over social constructivism or realism. This problem has less to do with judging the existence and (il)legitimacy of nature’s authority, and more to do with investigating its jurisdictions and workings.56 In Egypt, the principal articulations of nature’s authority were three related propositions: first, nature was the source of knowledge about 165

nature

Egypt; second, nature determined Egyptians, on the one hand, and revealed plasticity and adaptability, on the other; and third, nature was a constellation of forces, friendly and hostile, and a site of battles with the human. These articulations, as we shall see, authorized different figures of the human, but their convergence assumed a human laborer who is both part of nature and at war with it—a human laborer, split into two and at war with herself. The first articulation of nature’s authority consisted in its being the primary source of knowledge about Egypt and the Egyptians. Exemplifying this authority is the English scientist W. Lawrence Balls, a botanist to the Khedival Agricultural Society from 1904 to 1910, and a botanist with the Department of Agriculture until 1914. Upon his return to En­ gland, he published Egypt of the Egyptians, The Cotton Plant in Egypt, and The Development and Properties of Raw Cotton. The first was a work of politics, the second and the third works of science. But his scientific study of nature contributed to his treatise on politics. In his Egypt of the Egyptians, he explicitly established his claim to know Egypt by knowing its nature: We know an Egypt that is not the Egypt of the tourist and the temples but a land of dust and crops, of mud and flies, where everything goes wrong but comes out right; our knowledge is not to be found in the book. But it has given us a point of view; we have learned humility of a sort, and we have seen that Egypt is naked earth, water, sun, and air, producing plants by the interminable labour of a population which knows its immediate business quite well, though it does not trouble about the future.57

I will return to the failure that Balls locates in nature’s human inhabi­ tants—the peasants. More relevant here is his articulation of its first authority: how his knowledge of Egypt derived its authority from the direct experience of Egypt’s nature. The equation between Egypt and its nature was not unique to Balls or to the life sciences. Discussing the discourse of international development and how it constitutes itself as external to the object it describes, Timothy Mitchell points out that objectifying Egypt in this way is partly accomplished through associating Egypt with nature: “The naturalness of the topographic image, so easily pictured, sets up 166

bat tles

the object of development as just that—an object, out there, not as part of the study but external to it.”58 The association between Egypt and its nature engenders power operations, which Mitchell shows include the authorization of projects that construct their own object of development while simultaneously disavowing this construction by exteriorizing it as part of nature. In Egypt, the Nile was one element of nature that came to stand for Egyptians, enabling technological and political interventions to service the natural and to stand outside of it. Asserting the importance of a wellmaintained irrigation system, Balls directly equated nature and Egyptians: “The history of the Egyptians themselves as apart from the history of their governors,” he wrote, “is largely a history of the water supply.”59 To elaborate more on this idea, he continued: “If a hostile power were to obtain possession of the Sudan, and spitefully to divert the Nile, which is an engineering possibility, there would not be a living thing left in Egypt after six months of summer, plant or animal, except desert scrub and vermin.”60 The only life Egypt knows, then, is the one given to it by the Nile. Nothing in Egypt exists without the blessing of the Nile. Crucial here is not simply the importance of the Nile, but the reduction of Egyptians to their surrounding nature, to what nature has given them. This is not the “natural man” whose historical fall during the Enlightenment was chronicled and theorized by Anthony Pagden.61 At stake here is an understanding that nature endows human subjects with everything they have. Nature, the Nile in particular, is solely responsible for the making of Egyptians. The second authority of nature begins to emerge: this authority is its capacity to both overwhelm and to overdetermine, much like the economic base in certain Marxist variations that determines the superstructure. Yet, if nature is so overwhelming for Egyptians, how exactly are they expected to step outside of it in order to instrumentalize it? If nature is so determining, where does change stem from? Or to put the question in concrete terms, if the Nile has dominated the history of Egyptians, how are irrigation works, necessary for expanding the cotton-cultivated land, to be pursued? The determinism of nature must therefore become more flexible in the hands of those others who can help Egyptians. Consequently, 167

nature

another relationship between nature and the human subject is articulated for the Nile water to be not only constitutive of Egyptians but also constituted by them. Balls continues: Egypt was made by the Nile, and is at the mercy of the Nile; man has harnessed the Nile and brought it into subjection, but not entirely. As the years go by the control he exerts on the river will be more and more perfect, and time may come when Egypt will always be able to have the exact amount of water needed at any time by every plot of land in the country.62

The Nile, Balls therefore adds, must be “trained.” And “training the River,” as he put it, is a process that entails recovering land from sandbars and backwaters and compressing the river into a deep, straight channel, “instead of wandering around the shallow crooked one, and the history of all Egypt is repeated on a small scale.”63 Outlining a number of other methods for what he also calls “controlling the Nile,” Balls cautions that it will be years before some of these projects are carried out, if ever. But in a section titled “Romance,” he writes, Not less impressive than the cliff of masonry at Assuan is the idea of a lone white man sitting in the heat of Africa, ordering machines to move sluices in accordance with telegraphic instructions flashed up from headquarters 4,000 miles down-stream, and thus setting free water which, more than a month later, will reach its destination on the land of some peasant who would otherwise have lost his crop.64

This future can escape the determinism of nature through the work of white scientists who can regenerate Africa with the help of technology. By this point in the text, nature’s plasticity and adaptability triumph over its determinism; it is less fixed and more flexible and docile. If it is possible to discipline human beings in prisons, factories, clinics, and schools, it is also possible to discipline nature. Both can be trained. We move from a view of power located in the base of nature to a view of power as networks of actions and reactions, control, discipline, and resistance. The colonial enterprise loosens the authority of nature over Egyptians, introducing a new concept of nature that is readily available to engineering projects. But the story is never fully optimistic, because it has been identified as romantic. 168

bat tles

Recounting plans for electricity, Balls cautions once again that those who know Egypt will also know that this is looking a very long way ahead; at the present day there will be more corpses than crops if such a system were to be introduced. Still, seeing the enormous strides which have been made by the central authorities in the last three decades, it is safe to assume that at some future time the people they serve will also advance—not in bulk but by an individual here and there—and the face of the land will be changed, even as the Nile itself.65

This moment in the future will witness the progress of some Egyptians together with the conquest of nature, its transformation and the loss of itself. Nature no longer derives its authority from its eternity and permanence. If that was once the fate of nature, it was because human power did not master nature’s forces and direct them in precolonial times. The construction of the irrigation network constituted such human power. Crucially, however, human technological interventions did not triumph over nature but continued to draw on nature’s first authority, as signifying Egypt, to legitimate the technological. Egypt’s canals, bridges, dikes, and ditches are not simply human artifacts; they facilitate the arrival of the Nile water to land awaiting its fertile magic. As Nile water signifies prosperity and blooming fields, irrigation work could color itself with the Nile’s blossoming qualities and realize its work as part of nature, or in its service. This in turn naturalized irrigation as an unproblematic site for the maintenance and preservation of nature and life. The depiction of irrigation as work in the service of a given nature purified it from the politics in which it was implicated. One such depiction was the following report by Cromer: It is estimated that the reservoir now supplied about a quarter of the water which will be eventually necessary for the needs of Egypt. . . . Sir William Garstin points out that there are two methods of increasing the supply. One is to store the required amount of water in reservoirs constructed in the Nile Valley. Another is to prevent the present waste of water in the vast Bahr el-Gebel. . . . After a thorough examination of the question, Sir William Garstin and his coadjutors have arrived at the conclusion that, “if Egypt is ever to be granted the volume required for perennial irrigation throughout its entire areas, it will be necessary to make use of both methods for adding to the water supply.”66 169

nature

The significance of this paragraph, which includes a reference to a report by William Garstin, the British advisor to the Ministry of Public Works, was the relationships it established among irrigation work, Nile water, and the state of Egypt. Irrigation work came to connect the state with nature, with the Nile. Consequently the state, with its irrigation projects, came to support the Nile. The state could be constituted as part of nature; its irrigation interests were said to complement nature. This representation was not only accomplished on the scientific-discursive level. The actual expansion of the irrigation system into territories previously not irrigated by the Nile contributed to this equation between the territory of the state and irrigation, on the one hand, and nature, on the other. The expansion of irrigation technology, in other words, forged a link between the Nile and the state, making Egypt part and parcel of its technological and natural configuration. Nature no longer determined Egypt from the outside but became itself Egypt. Balls’s collapse of Egypt into its nature resurfaced. The plasticity of nature exemplified in the irrigation network presupposes or invites particular ways of being human. Hannah Arendt’s reflections on the concept of nature and the human condition are helpful for distilling a possible human-nature relationship implicit in modern irrigation works. She argues that in modern times, progress came to be associated with man’s attempt at conquering and transforming nature with the objective of liberating man from nature. Rather than contemplating the order of nature, modern science, with its skepticism about the senses, aims to discover what is beyond natural phenomena, beyond what is available to man’s senses and mind.67 This attitude of mastery of nature reflects a reordering of the vita activa that Arendt elaborates upon in The Human Condition. Vita activa is a term denoting “human life in so far as it is actively engaged in doing something.”68 A tripartite structure that reflects the basic phenomenology of human life, the vita activa consists in labor, fabrication or work, and action.69 Important to this discussion are work and action. Work, or fabrication, corresponds to the activity in which human beings fabricate their world as a durable construct, using the uniquely resilient materials “borrowed” from nature.70 Action corresponds to the fact of human plurality, which ­Arendt views as the basic 170

bat tles

condition for politics.71 To act is to initiate new ­beginnings inherent in birth, or natality. In Arendt’s words, “The new beginning inherent in birth can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting.”72 For Arendt, the modern concepts of history and nature point to a re­artic­ulation of the vita activa. Fabrication no longer draws on nature but takes history to be the site of work, as when men begin to make history. Action, on the other hand, is directed to nature: “We act into nature as we used to act into history.”73 Human beings have redirected their capacity for action into a new realm, that of nature. As Arendt explains, “The world we have now come to live in is much more determined by man acting into nature, creating natural processes and directing them into the human artifice and the realm of human affairs, than by building and preserving the human artifice.”74 In Arendt’s conceptual scheme, the construction of the irrigation network exemplified a relation to the Nile that was instrumental. Irrigation work was a classic practice of fabrication, or work, in which natural sources were made durable for human use. But Balls’s reference to the unknown future, when a sole white man will operate the entire irrigation network of Africa, is akin to the redirection of action to the realm of nature to create new, future-oriented natural processes. Meanwhile, however, human interaction with nature in Egypt was not limited to the Nile and to the irrigation network. Other forces of nature presented additional powers, and, I argue, authority, that did not map out on the dichotomy of permanence and determinism versus conquest and mastery. The insects that attacked the cotton fields showed that nature was neither simply an object to be drawn upon for purposes of fabrication nor a site for the initiation of human-made processes carrying unpredictable outcomes. Rather, nature consisted in its own life forces, which the Arendtian conceptual scheme cannot explain. This is mainly because Arendt fails to account for nature’s own life forces that act upon the human, interact with human beings, and initiate new beginnings. All power, and therefore all possibilities for politics, are in her account the product of what the human does and how he does it: labor, work, or action. Arendt’s depiction of nature as either a site or a resource, not a constellation of forces that unleash themselves, results in a view of the human as a subject that acts upon nature but is 171

nature

never acted upon by nature.75 This view also precludes an appreciation for the politics of nature.76 Contending with nature’s authority in terms of its forms of life, friendly and hostile, did not only result from the specific threat that the insects presented—the destruction of the cotton crop whose production was an occasion for Egypt’s colonization. Also crucial were the nineteenth-century transformations in the study of nature that had increasingly become focused on life, resulting in the demise of natural history and the rise of the biological sciences. By the first two decades of the twentieth century, when the cotton worms’ attacks had intensified, the study of nature was no longer conducted through the tradition of natural history but rather through the multiple disciplines of science. Natural history had fragmented by the mid-nineteenth century into separate disciplines, including zoology, botany, and geology.77 Physiology decisively transformed the sciences by helping to create the specialized and highly technical departments that would become known as biology.78 The biological sciences took their modern form during the nineteenth century. The study of living things became the defining marker of the nineteenth century. As Michel Foucault argues in The Order of Things, in the eighteenth century “life itself did not exist,” only living beings who appeared through the “epistemological lattice of natural history.”79 Human beings, therefore, came to be seen as one species in a complex whole.80 The interest of scientists shifted to detailed structures and their function in different forms of life. One consequence of this process was the rapid specialization of the life sciences into a number of distinct disciplines: embryology, cytology, genetics, and so forth.81 The story of the insects that attacked the cotton crop of Egypt and their study at the turn of the twentieth century by scientists and capitalists reveals this newly acquired appreciation for nature’s active forms of life. Insects did not reflect the givenness, stability, and permanence of nature but rather demanded that scientists and capitalists attend to nature’s forces—her acts of assistance, enhancement, destruction, and elimination. For scientists, colonialists, and capitalists, many insects constituted forms of life that intervened in capitalist production, obstructed it, and in the case of colonial Egypt, were a formidable enemy against which the colonial state had to contend. And while some human beings were enemies 172

bat tles

of colonialism, the ranks of insects consisted in friendly populations that were beneficial to humanity, agriculture, and capitalist production. These demanded and received protection: It is, indeed, not too much to say that one of the greatest obstacles in the way of development of the Tropics is the existence of the disease-carrying insects and ticks. On the other hand, it must not be forgotten that many insects are beneficial to man, chiefly those which parasite or by other means hold in check the noxious kinds, and it is of great importance that accurate information should also be obtained regarding their life history, with a view to securing the full benefit of their protective action.82

Cotton insects were different; they jeopardized the product of human labor. This is why, although insects had attacked crops since the beginning of agriculture, Balls listed them under a section titled “Nature’s Revenge,”83 as if they had been sent by nature in return for its exploitation. With capitalist mass agricultural production, and monocultural practices, new concentrated spaces for insects’ attacks became available. In Egypt, cotton worms either destroyed the significant parts of the crop or resulted in the deteriorating quality and quantity of cotton. Cotton worms were first identified in Egypt in 1886, but 1910 is a good point at which to stop and chronicle the war against them. In this year, Egypt witnessed a sharp fall in cotton production. The Seventh International Cotton Congress, held in Brussels, discussed this decrease. Four hundred delegates from the cotton-spinning industries of eighteen countries were present at the congress. A. H. Dixon from Manchester, a representative of the English Federation of Master Cotton Spinners’ Associations, submitted a paper examining the reasons for the decrease in cotton production. He asked why it was that the better crops in 1891–92 and 1892–93 were produced from an acreage not more than three-fifths the acreage of cotton in 1909–10. Dixon mentioned eight reasons for what he called the “almost total collapse of this season’s crops”: deterioration of the seed, infiltration or water logging, oversupply of surface water, cotton worm, bollworm, deterioration of the soil from overcropping, artificial manures, and climate. The causes for the decrease in quantity and quality were mainly attributed to natural and chemical forces that the Egyptian authorities failed to ad173

nature

equately address. Dixon recommended the establishment of an agriculture department, confined entirely to agriculture and capable of dealing with this great question from every angle—a question he described as being “undeniably of vast importance to the world at large.”84 During the congress, the International Federation of Master Cotton Spinners’ and Manufacturers’ Associations adopted a resolution with regard to the cultivation of Egyptian cotton. The federation communicated its resolution to Sir Edward Grey, secretary of state for foreign affairs. The communication requested that Grey use his influence to secure adoption of the reform and subsequently to inform the federation of the Egyptian government’s steps to meet its requests. The resolution urged the Egyptian government to establish an agricultural department, with the following goals: first, obtaining detailed statistics of areas sown and the yield produced from as many different localities as possible; second, investigating the different factors affecting the cotton; and third, making proper provisions to make sure any recommendations were being correctly carried out.85 Years later, the 1927 International Cotton Conference recommended the formation of a Joint Permanent Committee of representatives of the countries using Egyptian cotton, together with representatives of authorities and merchants from Egypt, “to consider from time to time, any problems relating to Egyptian cotton.”86 The decrease in cotton production caused considerable worry to different actors. The cotton textile trade of Britain, the largest of all staple industries outside of agriculture, was arguably imperiled by the gradual absorption of raw cotton by the United States and other countries, while the production of cotton was not materially increasing. The fear was of a permanent price increase in the global cotton market and a decrease in the output of mills, bringing about a national disaster for Britain.87 Concerned British MPs questioned Edward Grey about the explanation that the authorities in Egypt offered for the failure of the cotton crop after a promising start, asking whether assurances had been given to prevent the recurrence of such a failure.88 In response to this failure, the discipline of entomology provided the knowledge for conceptualizing the authority of insects, that of the particular forces they unleashed, and for countering their attacks. Liberating 174

bat tles

themselves from the tradition of natural history and its Aristotelian beginnings, by the nineteenth century the practitioners of entomology had led the discipline to a new era of specialization; the formation of entomological societies institutionalized the development of the discipline.89 Some of these entomologists would become instrumental to the colonial project in Egypt and elsewhere. According to the account of F. C. Willcocks, an entomologist with the Sultanic Agricultural Society, it was another entomologist who discovered the presence of one major population of insects injurious to the cotton crop—the pink bollworm. One Mr. Andres, an assistant entomologist, who was conducting work at the society’s laboratory, sent out a request to the district inspectors of the society for unripe bolls. Upon inspecting them, he was reportedly astonished to find the pink bollworm quite common. Willcocks writes: “Mr. Andres then realized the importance and grave menace for the future of the Egyptian cotton crop to be apprehended from the pink bollworm. A short pamphlet in Arabic was prepared and issued by this Society.”90 Willcocks authored the two-volume study The Insects and the Related Pests of Egypt.91 In the first volume, which he finished writing in 1915 and published in 1916, he narrated the story of the foreign pests’ arrival in Egypt and their discovery. Willcocks’s account of the pink bollworm begins with its world history, arguing that it originated in India and was first introduced into Egypt during the period 1903–1910. Making a public appearance and detected in 1910, the pink bollworm was the most common cotton pest in Lower Egypt by 1912. During these years, the pest altered “its status” and increased “from a comparatively few individuals to sufficient numbers for the species to be easily found.”92 This is why most conventional methods for eradicating the pest would have been futile, since “the pest had already obtained too strong a grip on the country and was in all probability present in very small numbers at a number of points.”93 The only measures that could have stopped the introduction of the pest were better laws preventing the introduction of foreign insect pests and plant diseases, but these had yet to be enacted in Egypt. In Willcocks’s opinion, the pink bollworm that originated in India was especially destructive at the beginning because it was a new pest “finding ex175

nature

ceptionally favourable food and climatic conditions and possibly freed from natural enemies the attacks of which it may have been subjected to in its native country.”94 Because of its work, “an enormous number of the ripe bolls were, practically speaking, only shells containing little or no pickable fibre.”95 Willcocks’s description of the worm grants it the status of a foreign enemy waging war on Egypt. Pink bollworms attack from the outside, invade, and destroy. But they also have natural enemies that can counter their attacks: parasitic insects. The task of entomologists was to classify these parasitic insects, determine whether they were native to Egypt, and discover whether they would also fight against each other. “It is quite possible that we have several classes of parasites to deal with; namely primary parasites—that is to say, insects directly parasitic on one or both of the bollworms or other larvae found in cotton bolls—and secondary or hyper­parasites which are parasites of the primary parasite.”96 The result in the latter case would be that one class of parasites neutralizes the natural enemy of bollworms. Describing the balance of power between the different pests and their parasites, Willcocks writes: As regards the parasites which may have been present in Egypt before the advent of the pink bollworms, there is always the possibility—one is perhaps justified in saying probability—that they will suffer to a much greater extent from the attacks of their own or hyperparasites. . . . This of course would tend to leave matters in favour of the pink bollworm which under such circumstances will undoubtedly increase again, since we have ample evidence to show us that it is a very dominant species.97

Nature emerges as divided into friendly and hostile powers. The hostile ones will probably be victorious in degrading the quality and quantity of the cotton crop. And yet, the fact that the pink bollworm had not destroyed the cotton crops was a testament to the persistence of some natural enemies. Noninsect enemies also helped to check the pink bollworm, such as spiders, birds, toads, and frogs. In the final analysis, however, in the battle among the forces of nature, as well as the battle against them, new forces would have to be recruited to achieve a different victory; the peasants, as will be shown, would constitute these recruits, or better, conscripts. 176

bat tles

One of the main dangers that Willcocks foresaw was that of the pink bollworm becoming “a cosmopolitan cotton pest.” The worm had already been shown to be the inhabitant of all of the chief growing areas except the United States, South America, and China.98 And even though thus far there was no “cosmopolitan pest” that presented serious threats, Willcocks cautioned that the particular worm Gelechia gossypiella “has a good chance of eventually gaining this distinction.”99 Hence, measures had to be taken to prevent this enemy from triumphing. They were determined on the basis of the life histories of the different varieties of the pink bollworm. The course of action consisted in what Willcocks called preventive measures that would ward off or severely reduce the severity of the attacks, as well as direct measures “in fighting the pest in one or more of its stages when it has already made an appearance in the field and commenced its destructive work on the cotton.”100 Gelechia fed on three plants—cotton, okra, and hemp. Willcocks recommended destroying okra and hemp, the less economically productive plants, in which Gelechia would continue to breed during the winter or spring until the cotton was in a condition to be attacked. A favorite vegetable in Egypt, okra was grown in small patches almost everywhere in Egypt. The bollworm Decree No. 19 of 1912 made its destruction compulsory. In addition, Willcocks proposed destroying all larvae wherever it was known to occur. Despite the fact that the danger of the infection of seeds was uncertain, he also called to make their disinfection compulsory. As to the destruction of the infested bolls, Willcocks concurred with the decree of 1912, which made the handpicking and burning of infested bolls compulsory. This measure, he added, “is not one that should weigh heavily or be impossible for the small cultivator.” This is because cotton farmers were used to picking bolls that they could use for other purposes; therefore, it would not be “a heavy task as may appear at first sight for them to pick all the bolls off, burning those of no use and treating the others in the manner described.”101 Because the Egyptian peasant was eager to get in the cotton crop immediately, he would be “very inclined to grudge the few days required for complying with the law and remove the plants before they are pulled up.”102 In other words, the law that made the destruction of infected bolls compulsory and, as we shall see, that penalized 177

nature

the peasants for failing to do so, appears in Willcocks’s examination to be a reflection of their own working habits, not an external imposition. Peasants would not be conscripts; they would be volunteers in the war on cotton worms. Willcocks was not the only scientist who articulated the authority of nature as a constellation of forces, friendly and hostile, and thus located nonhuman forces in a paradigm of war. Balls articulated a similar authority in The Cotton Plant of Egypt, which reflected his expertise in the heredity and physiology of cotton; the book itself, published in 1912, was a study of the physiology and genetics of cotton. On his account, his research method differed from previous methods used to research cotton, which inspected the crop on a large scale, whereas his examined the details of a few plants. Physiology, according to Balls, offered answers concerning the signs of failure of the cotton crop starting in 1905 and culminating in what he identified as the catastrophic failure of the 1909 crop. Locating the life of the cotton plant in two stages—from sowing to flowering and from flowering onward, Balls identified the conditions under which the plant lived. In the first stage, it lived under the control of aerial conditions; in the second, the soil conditions provided the limiting factors.103 Enemies of the cotton plant were in both spheres, the air and the soil. In the soil, Balls identified “the sore-shin fungus,” a “facultative parasite” attacking cotton seedlings in the Egyptian fields: “The fungus was ubiquitous in Egypt, and its sterile mycelium must be regarded as a gigantic network, stretching through the soils of all country.”104 If the cotton worms risked becoming cosmopolitan enemies, these parasites infiltrated the soil. Checking their entry was much more difficult. Balls also wrote that the temperature of their living conditions affected the fungi: cold temperatures and dampness enabled the attack. Of the fungus’s operations, he wrote, “It is strictly aerobic, grows freely on most culture media, though with difficulty when the nitrogen is present as urea, and forms resting cells very quickly on asparagin media, while it can infect cotton seedlings under perfectly sterile conditions.”105 The solution therefore was to treat the seeds with high temperatures, which protected them against the fungus but maintained their quality.

178

bat tles

Plant sciences had a significant role to play in many struggles to establish the sovereignty of nation-states. Efforts to map and standardize the names of native species contributed to making a country’s natural endowment legible.106 But plant scientists were also important players in colonization projects. Their articulation of the authority of nature as consisting in forces, friendly and hostile, and their resort to the paradigm of war mobilized particular colonial practices. Since many colonial powers were interested in the continued production of cotton in Egypt, it was not uncommon for scientists, Egyptian politicians, merchants, and colonial actors to collaborate in this war that became the primary medium with which to combat nature’s authority. The paradigm of war was central to these diverse actors. Moritz Schanz, who was a German delegate at the international conference held in Egypt during the autumn of 1912, described cotton worms through the model of war and counterattacks.107 Like Balls and Willcocks, Schanz spoke of nature in Egypt as a host to enemy populations. In the cotton fields of Egypt, he argued, a large number of such pests, principally belonging to the animal kingdom but also those of a fungoid character, cause damage. But the most dangerous were butterflies, which destroy crops in whole districts. His description of one particular species illuminates the forces of life that characterize nature, its attacks, and the results of their combination. The Earias insulana, Schanz argued, was one of the more difficult varieties to keep in check and was particularly destructive. Recorded in Egypt as early as 1865, the small butterfly, which has a length of only 9 mm., is easily recognized by its green fore wings and its silvery white dark-bordered hind wings; it lays its very small bluish-green eggs from the beginning of August outside the bolls or on the flower buds, the young caterpillars which come from these eggs penetrate in the most cases first the young shoots, later on the young buds and the young bolls; they feed on their contents, especially on the soft, juicy seed kernels and then they attack other bolls. Young bolls dry up in the consequence of these attacks and die, more developed bolls open in the consequence of the attack prematurely, and their fibre does not mature. . . . Indeed, the insect may destroy a quarter of the whole crop, and the second and third pickings suffer mostly from its attacks.108

179

nature

Natural antagonists of these enemies, Schanz added, were nonexistent in Egypt. As long as the Ministry of Agriculture did not introduce them from abroad, there was only one effective remedy: to manually pick and burn the infected cotton leaves. Compulsory work was therefore necessary. Schanz welcomed the government’s introduction of compulsory work to fight the cotton worm, labeling as culprits the peasant laborers who refused to be forced into labor.109 Nature has long been used in human-led war efforts; insects, in particular, have been employed as weapons of war. Historian Jeffrey Lockwood shows several ways in which insects were used as weapons: to destroy agricultural crops and livestock in order to starve an enemy, to directly attack humans, to spread disease. Although farmers have battled pests for millennia, inducing hunger and poverty through entomological warfare became a military strategy when scientists mastered the industrialscale mass production of insects.110 A British scientist warned in 1938: “It would not be very surprising, for example, if insect pests . . . were not [dispersed] by hostile airplanes in the course of a future war.”111 As of the 1940s, such use had intensified. And yet this use was not entirely modern; modern means of technology only intensified the use of insects for military purposes. But insects did not become weapons of war in colonial Egypt; rather, they constituted the enemy of the colonial and capitalist state. They exercised nonhuman authority, against which the colonizing powers fought back. Scientists as well as legal actors were the principal commanders in the counterattack. Lawmakers sought the recommendations of scientists, cotton merchants, and colonial powers and translated them into a modern legality of war. In this sense, law became a strategy of war.112 Further, this scientific and legal war on the insects enforced a particular version of human labor. Some of nature’s forces were at war with the colonial capitalist state. But other forces of nature were constitutive of Egyptians, whose labor was necessary to waging the war on insects. What, then, did being a human laborer mean in Egypt? How was this laborer to interact with a nature, now split in two: constitutive of the Egyptian subject and at the same time a force with which the Egyptian human laborer was forced to contend? 180

bat tles

forcing a nd t r a ining hum a n l a bor All labor, Karl Marx argues, is a process in which man and nature participate. Labor appropriates particular nature-given materials for particular human wants. Insofar as labor creates use value, it is necessary for the human race, enabling “a process between man and nature,” and therefore “life.”113 In colonial Egypt, this truth had concrete meanings. The specific labor peasants performed, that of agriculture, entailed an ongoing encounter with nature. If peasants were capitalism’s main conscripts, in a cotton-producing country such as Egypt, nature was its main field of operation. As such, nature, as Marx further argues, was not a mere provider of matter that laborers appropriated and changed in form. Rather, the process in which man participated was constitutive of what Marx calls “human labor.” What is human labor according to Marx? And what were its meanings and operations in colonial Egypt? For Marx, nature is not only a resource; it is also a necessity. Useful labor itself is a “nature-imposed necessity.”114 Natural forces assist man in his labor. He can “work only as Nature does, that is, by changing the form of matter.” In relation to use value, nature has followed the same pattern throughout the history of the human race; it is akin to the ahistorical. But Marx also suggests that nature has no role to play in the production of commodities. For exchange value “is a definite social manner of expressing the amount of labour bestowed upon an object.”115 He objects to the argument that locates the power of nature in commodity production and emphasizes instead that nature’s forces do not produce owners of money or commodities separately from men whose sole possession is their own labor power. The relationship between the owner of money or commodities and the free laborer, as he states, “has no natural basis, neither is its social basis one that is common to all historical periods.”116 Once again, nature, despite its changing forms, is akin to the ahistorical. Precisely for this reason, nature plays a role in all labor processes insofar as these processes produce use value. This role is not to be historicized; it has been present throughout human history and, as such, is constitutive of labor that is “exclusively human.” For Marx, human labor is different from “primitive instinctive forms of labour,” which are equivalent to “the mere animal.”117 Whereas instinctive labor, too, is a process in which 181

nature

man interacts with nature, this interaction does not qualify as human; it is merely animalistic. Human labor, in its interaction with nature, is distinctly purposeful and accomplishes what Marx calls “realization”: But what distinguishes the worst architect from the best of bees is this, that the architect raises his structure in imagination before he erects it in reality. At the end of every labour-process, we get a result that already existed in the imagination of the labourer at its commencement. He not only effects a change of form in the material on which he works, but he also realises a purpose of his own that gives the law to his modus operandi, and to which he must subordinate his will.118

Human labor is imaginative, purposeful, and carries the power of realization, of making real that which is still an idea. In labor, then, the distinction between the real and the ideal is erased and instead both sides mesh in the process of labor. Crucially, human labor, as distinct from instinctive labor, has the capacity to make reality and to transform it. Further, human labor does not simply work upon nature and transform it. In the labor process, “man of his own accord starts, regulates, and controls the material re-actions between himself and Nature.” Man, Marx writes, “opposes himself to Nature as one of her own forces, setting in motion arms and legs, head and hands, the natural forces of his body, in order to appropriate Nature’s productions in a form adapted to his own wants.” Labor, then, is a process that man, who is also part of nature, can appropriate and redirect. The human laborer, in other words, intervenes in nature, not from the outside but from the inside, from the very condition of already belonging to it. Nature is both the subject of the work and its instruments. Nature is the soil, the water, and all things that labor separates from their environment and that have become raw material. Nature is also the instrument of labor, or as he writes, “the conductor of his [the laborer’s] activity.” The laborer makes use of some substances of nature to submit others to his aims. In this process, nature reveals itself to be an organ of the human laborer’s body: “Thus Nature becomes one of the organs of his activity, one that he annexes to his own bodily organs, adding stature to himself in spite of the Bible.”119 Consequently, the change that labor enacts does not only happen to nature but to man as well: “By thus acting on the external world and changing 182

bat tles

it, he at the same time changes his own nature.”120 Human labor makes and transforms reality; it also transforms the laborer himself, his nature. For Marx, to be sure, human labor, like human history, is a general form regardless of the concrete social conditions under which it is carried out. Its only other is “instinctive labor.” Further, for Marx, this view of human labor, in its encounter with nature, is only characteristic of the production of use value, not exchange value. Labor in colonial Egypt produced cotton as a commodity for the world cotton markets. So, what were the details of human labor, in relation to nature, under capitalist relations of production, and did human labor in Egypt no longer follow Marx’s own formulation? Was nature no longer operative, as Marx suggests in his critique of political economists who “naturalize” commodities? Or did nature play a different role and exert a different authority in the labor process that produced exchange value? As the previous section establishes, one of nature’s authorities in colonial Egypt consisted in a constellation of friendly and hostile forces. Egypt’s nature—its water, soil, and air—was fertile with economic possibilities and full of competing authorities. War was the paradigm that organized the relationship with the insects. Thus, to be a human laborer meant to redirect nature’s forces and to battle against them. To be a human laborer meant to practice freedom over nature. While distinct from instinctive labor, labor was human insofar as it combated the life forces of nature, insofar as it combated force. Just as Egypt’s peasants were far from being docile subjects always ready to produce cotton—and hence, the institution of forced labor was never fully eliminated—so Egypt’s nature was not simply the mythologized ancient fertile land of the Nile. The vitalism of nature, its unexpected life forces, and the multiple possibilities of cultivation that peasants could have pursued necessitated interventions aiming to direct it. In response to the attacks of nature, such as the attacks of cotton worms, the colonial state reenlisted the conscripts of the cotton market, Egyptian peasants, to participate in the battles against nature’s own forces of life. Penal law dictated this warring relationship with nature. We have seen how European actors outside of Egypt focused on natural, chemical, and environmental factors to counter the insects’ attacks. But they also recommended that Egyptian authorities look for ways to translate these factors 183

nature

into actual policies. Consequently, the Egyptian government appointed two commissions to investigate the causes of the cotton failure. The members of the first commission included representatives interested in cotton production, while the second included scientific experts. The special subject of the commissions’ investigations was “the best method of dealing with the insects which prey upon the plants and which last season were exceptionally destructive.”121 The government also took the following actions: The administrative measures prescribed by the Law of 1905 for the destruction of cotton-worm were put in force throughout the country. [Seventy-seven] special inspectors and 167 assistants at a cost of £E.5,500 were appointed to supervise the operations, and 110,000 children requisitioned to pick the contaminated leaves in localities where labor was scarce. There were 10,000 prosecutions of cultivators for neglecting to destroy the worm, and 650 omdehs and sheikhs were punished administratively for neglect of duty in this connection. Unfortunately the efficiency with which the campaign was organized and carried into execution was to a certain degree neutralized by an especially severe visitation of this pest. As for the bollworm, which in 1909 was even more destructive than the cotton worm, the Khedival Agricultural Society has made a very thorough investigation into its history, and, as a result of its recommendations, a Decree has been passed prescribing certain measures on the part of the fellaheen which will, it is hoped, help to reduce the ravages associated by this insect.122

The Ministry of the Interior prepared a preliminary notice setting out the measures to be taken for the year 1911 in view of the great spread of the cotton worm in 1910. The ministry was to appoint a special cotton worm inspector for each district or group of districts in which the worm had appeared in the preceding year, in addition to a number of subinspectors and temporary assistants. The governors of the provinces would be responsible for the administration of the campaign, receiving reports and issuing all necessary orders while making use of their available staff. The inspectors would do their utmost to help the governors and were requested to be in constant movement through the districts to which they were posted. Subinspectors were instructed to patrol the districts, superintending the work of all those concerned. They were to report any laxity observed to the governors and draw up proposals on how to proceed. The assistants were re184

bat tles

sponsible for the work in a number of villages combined, including the one they lived in. They superintended the work of the ‘umdas, shaykhs, and the fellaheen. They were the ones charged with supervising the actual picking of the infected cotton leaves and their burning. They also ensured that the ‘umdas’ lists of areas infected by cotton worms were correct and that these lists were punctually sent to the districts. They kept all officials informed and supervised the distribution of the assistants’ work and their payment.123 Faced with nature’s attacks, the Egyptian authorities put in place the administrative machinery with which to improve cotton production. This machinery was made up of inspectors, subinspectors, and assistants. During those years nature could not be overcome by the introduction of scientific improvements; the worm needed to be picked manually from the cotton leaves, hence the need for peasant labor. Here, free peasant laborers made a new appearance as the site of the problem and an object of penal intervention. As mentioned above, in 1910 approximately ten thousand cultivators were convicted for failing to destroy the cotton worm. Convictions were based on Law No. 3 of 1906. In its ruling in 1910, the Court of Appeal mandated that any person who failed to report the appearance of a cotton worm was to be punished. It stated that the words “appearance of the cotton worm or its eggs” in Article 1 of Law No. 3 of 1906 refer to the existence of the worm or its eggs independently of whether the person whose duty it is to report them is aware of their existence. In a prosecution for failure to report the appearance of the worm, the accused cannot, therefore, rely on the fact that the damage done by it was so small that its existence might reasonably have escaped his notice, or that he did not know the distinctive marks of the worm by which he could have identified it.”124

In another decision, the Court of Cassation found Ibrahim ‘Afifi, a landowner, to have neglected his duty as stipulated by Law No. 13 of 1905. Articles 6 and 2 of the law prescribed the measures to be employed for the destruction of the cotton worm and provided for the punishment of persons who, “charged with the supervision of the stripping of the leaves and their removing and burning, are guilty of any act or negligence which could result in these leaves not being burnt.” This law, the Court of Cassation found, penalized “every act of commission or omission on the part 185

nature

of the person entrusted with such supervision, which could impede at any stage, the process of burning the leaves, and independently of whether the leaves, have in fact, been burnt or not.”125 The court acknowledged the “exceptional broad breadth” of this law but argued for its legitimacy given the disastrous consequences of the cotton worm. Targeting both landowners and peasant laborers, the conviction was said to be necessary for the protection of Egypt’s productivity. However, peasant laborers in particular were considered to be responsible for the spread of the worm. Ronald Graham, the British advisor to the Ministry of the Interior, who led the campaign against the worm, stated: The ignorance and apathy shown by the latter [peasants] in many places is remarkable, and not a few of them contend that the worm is sent by God and that it would be wicked to deprive it of its share of the crop. The local authorities have done everything possible to dispel this impression by collecting cultivators and explaining the true facts of the case to them. Additionally, and early in the campaign, a large number of contraventions were inflicted for not reporting the presence of a worm. Heavier fines have been inflicted than ever before. In districts badly affected, the local police have been used to see that the fellahin cleared their fields properly. Owing to these measures, and the severe loss suffered last year by the cultivators, the latter seem to realize the situation better than they have ever done before and are cooperating [in a] satisfactory [way].126

In 1913, Law No. 6 was passed to ensure that worms did not spread into the clover crop. The instructions were that clover should not be irrigated after May 10th of each year. Violations of these instructions would result in imprisonment for no more than two months or a fine not exceeding twenty pounds. An administrative body was to rule on these contraventions. In addition, upon proof that the cotton worm was preying on a plot of land in which clover was cultivated, all clover had to be uprooted. Alternatively, owners or leaseholders were instructed to plow the land. If they failed to do so, the administrative authority would carry out this work and demand reimbursement for the expenses incurred.127 Harsher decrees with graver penalties were later introduced. For example, in 1918 another decree was issued on the measures to be implemented in “resisting the cotton worm.”128 Article 5 of the decree stipulated that 186

bat tles

the Ministry of Agriculture could recruit males between the ages of nine and twenty-five who were accustomed to agricultural work to assist in the destruction of the cotton worm. The ministry would pay these individuals according to what it, and the provincial governor, saw fit. Article 6 of the law provided for imprisonment for a period of one month accompanied by forced labor or a fine not exceeding three pounds in the following cases: a cultivator who failed to report the presence of cotton worms to the ‘umda or the shaykh; an ‘umda or shaykh who failed to report the presence of cotton worms to the Ministry of Agriculture; an owner or leaseholder who failed to carry out the procedures for the destruction of the cotton worm; and a person who assisted those between the ages of nine and twenty-five to avoid the duty of destroying the cotton worm (Article 6). In addition, the law provided for a penalty of one week’s imprisonment in cases of failure among those recruited in accordance with Article 5 to report to duty or those who were negligent in destroying the cotton worm (Article 7). Similar decrees and regulations were introduced in the following years.129 Thus the Cultivation Code of the precolonial past was repackaged for natural disasters. The war against the worms was central to the colonial project in Egypt and to British imperial expansion more broadly. Insects directly threatened imperial policies. Cromer, who in 1909 became president of the Committee for the Development of Entomological Research in the British Colonies and Protectorates in East and West Africa, elaborated on this relationship between insects and colonialism: But apart from disease in man and his cattle, there is the widest field in the Tropics for investigation into the life-histories and habits of the numerous insects which prey upon, and not infrequently annihilate, the crops upon which humanity is largely dependent for daily food, or which furnish the raw materials for base industries. The success or failure of the colonisation of these countries will be profoundly influenced by the insect enemies to their crops, and unless great loss in their resources and disappointment are to ensue, the necessary defensive measures must be effectively organized.130

Depicted in this way, all means in the war on worms, the harshest included, were justified. The conscription of peasants was necessary to the 187

nature

prospect of successful colonization. Crucially, penal law did not merely recruit the peasants for a particular type of labor, that is, eradicating the insects. These penal-agricultural legalities also recruited the peasants for a particular war with nature, one in which being a human laborer meant mastering nature, combating it, fighting against it, and hence exercising freedom against force. But because nature was also constitutive of Egyptians—the second authority of nature—the fight that they waged was also against themselves. Because nature was understood to be productive of Egyptians, the requirement to fight against its forces also meant that human laborers had to fight against themselves. In this way, peasants were to be freed twice: once from their own nature and once again from nature outside. Free labor triumphed. In colonial Egypt, and under conditions of capitalist production of cotton for world markets, human labor emerged as a relationship not of conflict but of war, not of instrumentalization and constitution but of ­defeat of nature and of the self. And freedom was gained in this war. The new authority of nature, and the war paradigm that articulated it, was partly responsible for this formation. Far from being a mere instrument, the penal law was a strategy of war, an ally in the particular warring relationship between the human and nature. To be sure, not all labor was cultivated through the mechanisms of penal law. Another strategy was to train a new generation of peasants. Reporting on the state of Egyptian peasants, Balls writes that the peasant today is already intelligent and displays “appreciated skills.” He adds: “Without adhering to any fetish of Progress with a capital letter, we may expect that the tendency of the future will necessitate the development of a superior grade of Egyptian, a mental race possessing the physique of his ancestor.”131 To that end, Balls trained some Egyptian peasants so that they could “act in place of college-educated scientific assistants, whether Egyptian or European.” In a section titled “The Scientist Fellah,” he reports on the experiments he carried out with peasants. He chose someone from the lowest class of laborers in Cairo. While attending to the experimental garden he was cultivating, this person also studied both Arabic and En­ glish. He learned how to keep a record of experimental cotton plants and was then trained in the use of chemical substances and various labora188

bat tles

tory instruments. Then he became leader of a group of young men chosen for their general intelligence. Within a year and a half, these men became accurate plant observers, able to count, weigh, and keep records of long series of routine determinations. Balls adds that “it was extraordinarily interesting to watch the development of personality.”132 At the end of this period, because of these eight men who were hired at the cost of a single college-trained assistant, Balls became confident “that there is clever adult material amongst the fellaheen.” The training provided what the fellaheen most notoriously lacked—powers of observation and accuracy. Balls, it may be said, performed many experiments. Like the future of the Nile as he imagined it, his experiment with laborers was an open-ended process. He stated the continuing nature of his projects in Egypt clearly: “The two essentials to . . . development are: first, complete control of the Nile in its course and throughout its course; second, retention of the physique and industry of the fellah class.”133 Once again, nature and Egyptians met, both becoming sites for open-ended experimental processes. Colonialism, as it applied its actions to nature and to humans, became precisely this experimental process. Thus, Balls could conclude by saying that the old desire of the British “to teach Egyptians to govern themselves is by no means extinct, nor—within limits—is it altogether impracticable, provided we recognize that the attainment of the ideal can only be reached by a long process of selection, and not by the quick-acting panacea of education.”134 The colony was not merely a site for experiments.135 Colonization was an experiment in producing new nature and new humans. As it turns out, the colonial critique of the precolonial state—its force, unfreedom, and oppression—was homologous to the scientists’ critique of nature’s forces and destruction. Both carried a similar vision of freedom, the one from the precolonial state and its formations of force, such as forced labor, the other from nature and its hostile forces. And yet for both, freedom from force meant the forcing of freedom.136 forced l a bor ag a i n ? Compelling peasant laborers to destroy cotton worms entailed elaborate penal measures. What was the relationship between these measures and the khedival criminal legislation, such as the Cultivation Statute, that I men189

nature

tioned briefly at the beginning of the chapter? And what was the difference between penalized labor and forced labor? Was Egypt in the presence of a khedival institution that resurfaced in the colonial era, this time dressed as penal positive law? Robert Tignor argues that the British did little to alter the path by which Egypt was transforming itself from the beginning of the century.137 His temporal articulation questions the radical distinction between the khedival precolonial trajectory and the colonial path that the modernizing metanarrative of colonialism espouses. Such a distinction, Tignor points out, is only true on the surface. Indeed, the penalization of the Egyptian peasantry recalls the institutions of forced labor that the khedival state used to modernize Egypt. It also, on one level, recalls the Cultivation Statute that punished failures of duty. But the fact that this penalization took place in a legal culture that disengaged criminal law from force and unfreedom, and relegated the management of labor to private property, must also change the meaning of penalization. For the criminalization of labor not only forced labor through the threat of punishment but also concealed that force by defining it as a response to crime. That is to say, while force was clearly still operative in the era of penalized labor, it was either relegated to private property or had gained the conceptual appearance of penal punishment. Force persisted, even as it was simultaneously eliminated by restructuring it as punishment for a crime. But its persistence suggests that cultivating free human labor against force, that of the state and that of nature, went hand in hand with resorting to force, this time on the part of the state. Christopher Tomlins, a legal historian of America, argues that historically speaking, it makes little sense to speak of free versus unfree labor. Instead, he proposes examining constellations of un/freedom characteristic of every age in which one is the condition of the other.138 With such an idea in mind, how might we understand the different constellations when comparing penalized and forced labor? The institution of forced labor directly registered the unfreedom of labor, whereas penalized labor turns the failure to labor into an act against the social. The first documents the inhuman in the human; the second presents itself as a triumph of the social. But crucially, with penalized labor, a criminalized laborer is no longer a laborer but a subject governed through the threat of criminalization.139 This shift to criminalizing laborers who were governed in 190

bat tles

the past by force further solidified the purification of modern criminal law from force and unfreedom. Egyptian laborers were no longer forced, but now they were criminalized. Illuminating here is Marx’s critique of political economy and the distinction political economy makes between the criminal and the laborer. Political economy, therefore, does not recognize the unoccupied worker; the working man, in so far as he happens to be outside of this work relationship. The cheat-thief, swindler, beggar, and unemployed; the starving, wretched and criminal workingman—these are figures who do not exist for political economy but only for other eyes, those of the doctor, the judge, the grave-diggers, beadles, etc. Nebulous figures which do not belong within the province of political economy. Therefore as far as political economy is concerned, the requirements of the worker can be narrowed down to one: the need to support him while he is working, and prevent the race of workers from dying out [emphasis added].140

Political economy, of which Marx presents a critique, recognizes the figure of the laborer only as he exists inside labor relationships. The criminal, making his living from criminal activity, is situated outside of labor relationships and does not appear in the domain of political economy. Elsewhere Marx also argues that the changes that took place in Europe between the fifteenth and eighteenth centuries, accompanied by the expulsion of farmers from their land and their transformation into workers, resulted in denying these farmer-workers the means of survival that had been available to them in earlier times. These men, however, suddenly dragged from their wonted mode of life, could not as suddenly adapt themselves to the discipline of their new condition. They were turned en masse into beggars, robbers, vagabonds, partly from inclination, in most cases from stress of circumstances. Hence at the end of the fifteenth and during the whole of the sixteenth century, throughout Western Europe a bloody legislation against vagabondage [was passed]. . . . Legislation treated them as “voluntary” criminals, and assumed that it depended on their own good will to go on working under the old conditions that no longer existed.141

The transformation to capitalism, in other words, resulted in the criminalization of the conditions of survival for those thrown off the land, who 191

nature

had no choice but crime to secure their livelihood.142 The criminal was a figure who failed or refused to become a laborer. Both were members of the same family, even though they came to appear as distinct. As in Marx’s account of the farmer-worker in Renaissance Europe, the Egyptian criminal peasant during the colonial era was he who refused to labor on a particular occasion, or he who refused to practice freedom from the forces of nature. Indeed, political economy may not see him, for as a criminal, he had ceased to be a laborer from the perspective of political economy. Crucially, however, criminal law did account for these peasants and it did not see them as laborers, or forced laborers. Marx’s critique of political economy is relevant to modern criminal law, which ceased to see its own forced labor. But both his critique and the history of Egypt reveal empirical associations between laborer and criminal. In colonial Egypt, these two categories were distinct only insofar as they were the product of processes that disengaged penal policy from labor management and constituted its field of intervention as that of criminality. The criminal, not the agricultural laborer, came to constitute the figure threatening agriculture. Peasants penalized for deserting the war on worms were now in the company of criminals, who defied the project of juridical humanity. Forcing labor therefore was restructured as punishing crime. In the discursive absence of force and presence of punishment, juridical humanity, which posited itself against force, triumphed. Given this difference between penalized labor and forced labor, what was the relationship between the articulation of forced labor as criminality and the precolonial arrangement, exemplified in the Cultivation Statute? In a rich and excellent study, the historian of Egypt ‘Imad Hilal recovers the history of criminal legislative acts during the first three decades of the nineteenth century, that is, during Mehmed Ali’s reign and the decades prior to British colonization. These acts included decrees (or what Hilal calls in Arabic al-awamir al-qawanin) issued by Mehmed Ali, individually proposed administrative regulations or programs (lawa’ih al-afrad), and statutes (qawanin juz’iyya). Among these was the Cultivation Statute, which was proposed by an administrator and approved by Mehmed Ali143 and took the name Program for Successful Peasant Cultivation and the Application of Government Regulation.144 Hilal’s study of the different legislative acts 192

bat tles

that concerned punishment reveals that some of the sovereign decrees, the administrative regulations/programs, and the statutes concerned themselves directly with the management of the laboring activities of the peasants through their punishment. These legislative acts also included protective measures against the abuse of peasants by administrators or others. Agricultural labor was always under the gaze of the khedival state and its sovereign. In this sense, there seems to be little difference between the penalizing measures in the colonial war on insects and the previous measures of the khedival state. But what may also be inferred from ­Hilal’s account is that during this period, state law captured the peasant as an agricultural laborer, not as a criminal. Even though all these decrees, regulations, and statutes included clauses that stipulated punishment in cases of failure to labor, criminality was not the main mediator between the peasant laborer and the state. The Cultivation Program, as Hilal also argues, was mainly concerned with administrative and agricultural issues; the penal clauses were secondary. That is to say, the frame that mediated the relationship to the peasant was that of agriculture and administration. The Cultivation Statute reveals a similar relational frame. Unlike the Cultivation Program, the Cultivation Statute was primarily concerned with the punishment of failures of duty and other rural crimes, such as theft, transgression, and so forth. Crucially, it still isolated the rural population as its subject. Peasants entered the field of penality in their capacity as a rural and agricultural population. Further, because the fields of agriculture and penality were not separated, peasants retained the identities of both laborers and criminals. Under the purified regime of positive law, peasants who failed to labor were documented as criminals only. Despite its disavowal of its own force against labor, the criminal field, along with private property, was an institution that restructured forced labor. A similar dynamic may be found in the American “New South.” The new Southern institution of black convict labor very much resembled slavery and was vital to economic development. From the very outset of Reconstruction up until the Great Depression, convict labor was leased to plantation owners. Forced penal labor was also employed in the new industries of the American South (railroad construction, coal mining, brick making, and the processing of turpentine and lumber).145 In the Ameri193

nature

can South, black criminals were forced into labor, while in colonial Egypt rural laborers were forced into crime, by the criminalization of their very failure to carry out certain laboring activities. The criminal justice system in the American South used forced labor as a means of punishment; the criminal justice system in colonial Egypt forced peasant labor by criminalizing it. In both cases, a deep historical association is revealed as operative between the field of labor and the field of penality. And because the punishment of crime was for the defense of society, force and unfreedom lost their discursive and conceptual space. Law in colonial Egypt could now claim itself to be a site of free labor and an opponent of force. And since this force also included the force of nature, law unleashed its own operations to fight this force. The juridical cultivation of human labor consisted in a series of forced battles against different forces—those of the khedival state, of nature, and of the self. The law established and maintained itself in this circular battle of force and of forces. di v i n e v iol e nce These circular juridical battles between forces are akin to what Walter Benjamin, in his essay “Critique of Violence,” calls mythical violence or the violence of the law. Mythical violence is law-making violence. It is a manifestation of the power of fate over humans. It is powered by the logic of ends. All violence that breaks the law will be countered by lawpreserving violence. But this law-breaking violence threatens to become law-making violence. Benjamin likens this cycle to mythical violence. It brings guilt and retribution. Benjamin distinguishes between mythical violence, which is law-­making violence, and divine violence. He proposes divine violence as “pure means” or means without ends. By divine, he means that which opposes itself to the mythical: This very task of destruction poses again, in the last resort, the question of a pure immediate violence that might be able to call a halt to mythical violence. Just as in all spheres God opposes myth, mythical violence is confronted by the divine. And the latter constitutes its antithesis in all respects. If mythical violence is law-

194

bat tles

making, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythical violence brings at once guilt and retribution, divine power only expiates; if the former threatens, the latter strikes; if the former is bloody, the latter is lethal without spilling blood.146

This text is far too ambiguous for one to conclude programmatically what such bloodless violence might be. However, the attacks that the insects unleashed on the cotton fields of Egypt might qualify as bloodless, boundless, and destructive of our attachment to the law. Might it be that the insects’ attacks were an instance of divine violence, which nevertheless ultimately failed to break down the cycle of the battle of forces? There is a quotation in an earlier section from a report by Graham, the British advisor to the Ministry of the Interior, who wrote that “the ignorance and apathy shown by the latter [peasants] in many places is remarkable, and not a few of them contend that the worm is sent by God and that it would be wicked to deprive it of its share of the crop.” Graham’s dismissiveness of the peasants was historically unfounded. As a matter of history, in other places as well as in Egypt, insects were treated as the agents of a superhuman power. They were put on trial in order to establish whether they were sent by God or not, and only if their origin was proven to be nondivine were they eradicated; otherwise, they were expelled to a different region.147 There is much more to be said about insects on trial; the point here, however, is that Egyptian peasants’ convictions were not historically unique. And because they were not, their appreciation of the insects’ attacks as divine must be interrogated on its own terms. Insects attacked the cotton fields of Egypt and jeopardized the British colonial project. They introduced another authority, and thus threatened the colonial capitalist state, but they did not qualify theoretically as Benjaminian divine violence because they were incorporated in the mythical violence of the law. Still, in so doing, they revealed the overwhelming power of modern colonial law, which combated any challenge to its own violence and rule. The universality of the rule of law now stretched over the earth and the skies, over humans and nonhumans. The rule of law not only replaced the rule of man but it also replaced the rule of nature. Meanwhile, other struggles, or perhaps forms of nonmythical violence, against colonial rule and its 195

nature

rule of law continued to circulate. But before we get to these, we may ask, exactly how did this law govern Egyptians, and what other formations of force, or of violence, did it unleash as part of its mission? And how did the regime of juridical humanity, which took peasants as its main conscripts, go about establishing its new sovereignty?

196

chapter 5

Red Zones

The worker would work for one week and in the end they tell him you would not get your money. The daily wage was six piasters and he was whipped. It was the wisiyya [estate] employees who whipped him, and if they did not do that, how were they going to earn their living? r e e m s a a d , Social History of an Agrarian Reform Community in Egypt

t h e p r i n c i p l e a dv o c a t i n g a “government of laws, not of men”

was central to the operations of the colonial state in Egypt. This principle describes one important tenet of liberal legality and in particular of the doctrine of the rule of law. The principle is also constitutive of the liberal critique of sovereign power. The accomplishments of the colonial state, or so its story went in colonial Egypt, consisted in substituting a regime of law for a regime of khedival sovereignty. Implicit in this transitional narrative was the understanding that men, including sovereigns, were material bodies with explicit social and political existences and hence capable of injustice, terror, and cruelty. The rule of law, by contrast, establishes the law as a set of disembodied rules. While standing at a distance from men, rules inscribe themselves into social life, directing it and regulating its norms from afar.1 The rule of law resembles aerial technologies of warfare—planes operating from the skies, viewing their targets through the mediation of abstraction. The rule of law places its rules on higher planes, untouched by the biased, particularly mortal, and material bodies of its subjects. This self-abstracting technology, which disavows its own concrete applications, constitutes another historicizing force of positive law: the rule of law associated the rule of men with despotism, chaos, and factual decisions, while claiming their historical overcoming through a polity of rules in counterpoint to one of personal discretion. This historicizing force claims to have overcome what it defines as ter199

pow ers

ror, excessive violence, and cruelty. Nevertheless, the rule of law recognizes the possibility of its own violence much more than normative theories of the law that are concerned with the transition from sovereign power to a regime of rules, such as that expounded in H. L. A. Hart’s The Concept of Law. While Hart provides a clear example of the normative theory of law, departing from an understanding of law as based in sovereign power, he allocates no discursive space for law’s violence. Hart refashioned legal positivism by departing from John Austin’s theory that defined law as the “command of the sovereign.”2 Instead, Hart introduced a positivist theory of law based on rules. Rules, he wrote, “cannot themselves have the status of orders issued by the sovereign, for nothing can count as orders issued by the sovereign unless the rules already exist and have been followed.”3 In Hart’s scheme of things, the rules, not the sovereign, are the grounds of the law and, we may add, of the human. In its articulation of modern law’s treatment of sovereign power, Hart’s 1961 theory resembles some aspects of the colonial rhetoric of the rule of law. Anticipating Hart, colonial officials in Egypt put forward an argument about the antagonistic relationship between sovereignty and modern law and in the process granted specific meanings to both. They argued that British rule in Egypt brought about a shift from a regime of sovereign power to the reign of law. But in the rhetoric of colonial rule, violence played an important distinguishing role. According to this rhetoric, the governance of Egyptians prior to British occupation was undertaken by sovereigns who were despotic and unconstrained by fixed principles. The result was a regime of violent terror. Thus, one of the tasks that British officials assumed was to rid Egyptians of their earlier regime of sovereign power and to insert in its place a new juridical order based on a state-centered, abstracted system of unified principles applicable to all. The figure of the sovereign in colonial rhetoric, which in earlier premodern traditions did not necessarily exclude the possibility of justice, was now not only archaic, delivering inconsistent decisions, but given to arbitrary cruelty, or inhumanness. The rule of law, on the other hand, constituted a normative universe of progress and regulated violence. As a normative universe of progress, the rule of law also held out the promise of a future further detached from the past and always 200

red zones

yet to be. The more dichotomous the relationship between sovereignty and the rule of law appeared, the more potential enhancement for the human one could see in the open temporality of infinite progress. But how did this become the figure of the sovereign and the normative universe of the rule of law, and what are the operations of this distinction between the figure and the universe? This chapter investigates how, as a matter of history, sovereign power and the rule of law can be understood other than through the meanings attributed to them, whereby the former is associated with excessive violence and the latter with regulated violence. The chapter also probes whether the rule of law prevailed over what it defined as sovereign power.4 I ask: What was the fate of precolonial sovereign decisions under the colonial government-by-law? How did sovereign decisions survive in the new regime, and what were the features of their colonial juridical proliferation? And more generally, what is the relationship between violence, sovereign power, and the rule of law? To what extent was this relationship constitutive of juridical humanity in Egypt? This chapter advances the following arguments: first, the decisions of precolonial sovereigns (the khedival rulers of Egypt prior to British occupation) persisted under the colonial government yet were reconfigured under the new colonial legal order. The persistence of the earlier form of sovereignty took the form of a system of large estates inherited from the khedival era. Khedive Isma‘il, the ruler of Egypt from 1863 to 1879, developed these large estates; they housed peasants, who first produced sugar and later cotton for the world market. The decisions of Egypt’s old sovereigns, which gave birth to these estates, continued to circulate and multiply within colonial law and to shape its history. Meanwhile, however, they also marked exteriorized geographical spaces in relation to the law. Under the new colonial regime of the rule of law, spaces of sovereign power became what I call “spectral legalities.” They were “spectral” because they originated from past legalities that survived into the colonial present, which also reconstituted them. They defied the colonial liberal definition of sovereignty and the rule of law, and the distinction between them; their history in Egypt reveals meanings of khedival sovereign power and rule of law other than those articulated in colonial liberal rhetoric. 201

pow ers

Spectral legalities were spaces of juridical exteriorities that played a critical role in constituting the new property regime ushered in by the colonial rule of law itself.5 In this sense, they enjoyed new powers under the colonial regime. Significantly, it was their colonial iteration, more than their khedival history of sovereign power, that corresponded to the particular meanings and operations of sovereign power that the rule of law claimed to have overcome. This chapter retells the story of the consolidation of a regime of private property, consisting in the privatization of large estates where peasants cultivated cotton for the world market and lived under legalities constituted and executed by these estates’ private owners. Under inquiry is the fate of the privatized estates in relation to their history when one sovereign, Khedive Isma‘il, with his family and officials, owned most of the plantations. From this follows my second inquiry, which traces the different formations of violence that these two regimes (sovereign power and private property) enabled. The second argument that follows from this inquiry is that the privatization of violence against peasants on the cotton plantations delimited the reach of law’s regulatory powers and purified the concept of the law from the business of labor management on the estates. Meanwhile, however, peasants were subject to the law, and in particular to its capacities, in new ways. The formation of a purified conception of state law and a rule-of-law regime that excluded the estates from its conception was different from the khedival regime of sovereignty that recognized its own violence and included all estates under the sovereign’s law. In an attempt not to collapse the khedival into the colonial—continuing to define all sovereign power as the evil that threatens and pollutes the rule of law from without—I attend instead to the different notions of justice and the relation to violence that accompanied each regime. Important to the arguments in this chapter is the careful consideration and theorization of a colonial juridical humanity that did not govern “privatized” violence; rather, colonial juridical humanity “willed” violence out of the concept of state law. Such humanity produced, even exacerbated, the unregulated violence on private plantations. Through a reading of a number of criminal murder investigations on the estates, the chapter dem202

red zones

onstrates that “privatized” violence was inscribed into the project of juridical humanity. Just as pain was put to use, here too, in the cultivation of the human, the human that emerges is constituted by new formations of violence, even as the rule of law claims, and in some sense achieves, the historical juridical overcoming of khedival sovereign power. t h e h i s t o r i c i z i n g f o r c e o f p o s i t i v e l aw Widely cited in Egyptian law textbooks of the time, Montesquieu’s Spirit of the Laws addresses the distinctions between despotism, republics, and monarchies and the principles of law corresponding to each. Montesquieu argues that one of the key markers of despotism is fear, such that “man’s portion” under despotic governments “was like that of beasts,” consisting in “instinct, compliance, and punishment.”6 Republics and monarchies, on the other hand, offer man a different place based on virtue and honor. Montesquieu writes of the sovereign or prince in despotic governments that he is “no longer supposed to be a man,”7 for he is above all men and laws: Again, as the law is only the prince’s will, and as the prince can only will what he knows, the consequence is that there are an infinite number of people who must will for him, and make their wills keep pace with his. In fine, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sudden manner of willing.8

The seven “wills” in the two sentences above are evidence of Montesquieu’s critique of the proliferation and arbitrary multiplication of the sovereign’s will. This critique of will is typically liberal in its identification of the proliferating sovereign’s will with caprice and arbitrariness. This pluralism is opposed to a government of universal, abstract, and singular laws applied to all. As he writes elsewhere, under “moderate governments, the law is prudent in all its parts, and perfectly well known, so that even the pettiest magistrates are capable of following it.” In a despotic state, on the other hand, “the prince’s will is the law.” But because the magistrate is unable to follow a will he does not know, he “must certainly follow his own.”9 This results in a plurality of laws: some represent the will of the sovereign and others the will of the magistrates, who can only second-guess the will 203

pow ers

of the sovereign. Montesquieu’s narrative is also orientalist: many of the examples of contemporary despotic regimes he lists are from the East, including that of the Ottoman Empire. Perhaps it is precisely this recurrent reference to the Ottoman Empire that explains the frequent references to his writings in Egyptian-authored law textbooks: his writings offered Egyptian jurists a theory that explains the need for a historicizing force to deliver Egypt from Ottoman despotism to the reign of positive law. Of importance is also Montesquieu’s theorization of the relationship between land and sovereign power. About the sovereign’s relationship to the land, he writes: Thus, in Turkey, the sovereign is satisfied with the right of three per cent on the value of inheritances. But as he gives the greatest part of the lands to his soldiery, and disposes of them as he pleases; as he seizes on all the inheritances of the officers of the empire at their decease; as he has the property of the possessions of those who die without issue, and the daughters have only the usufruct; it thence follows that the greatest part of the estates of the country are held in a precarious manner.10

What Montesquieu laments is the absent institution of private property and the sovereign’s practice of gifting lands. This practice, together with the rendering of usury as natural, causes misery to the inhabitants of the land: “Misery therefore pours from all parts into those unhappy countries; they are bereft of everything, even of the resource of borrowing.”11 Crucially, then, Montesquieu associates the practice of gifting lands with sovereign power. Monarchies bring about moderate elimination of this practice, and republics institute a regime of private property that eliminates this practice together with the proliferation of sovereign wills. The genealogy of sovereign command, which is commonly understood to be a characteristic of the juridical-political, passes through the materiality of land and resources. The liberal regime of law, together with the principle calling for a “government of laws, not men”—the rule of the universal and the abstract, not the concrete and the particular—not only moves away from the sovereign’s proliferating wills to the era of liberal legality, but also moves toward a new relationship to the land. These two movements, as we shall see, are related. 204

red zones

Lord Cromer’s Modern Egypt exemplifies the first movement. In this book, he draws a comparison between the Egyptian administrative and legal systems and “highly civilised European States.” He writes: If one unacquainted with mechanics enters a factory where a quantity of steam machinery is at work, he is for a moment deafened with the noise, and his first impression will not improbably be one of surprise that any delicate bit of workmanship can result from the apparent confusion which he sees before him. Gradually, however, he comes to understand that the rate at which each wheel turns is regulated to a nicety, that the piston of the steam-engine cannot give a stroke by one hair’s-breadth shorter or longer than that which it is intended to give . . . and that generally, each portion of the machinery is adopted to perform a certain specified bit of work and is under such perfect control that it cannot interfere with the functions of any other portion. He will then no longer be surprised that, with a little care in oiling the different parts of the machinery, a highly finished piece of workmanship is eventually produced. If on the other hand, he finds on examination that the confusion is even worse than at first sight appeared, that the movement of each wheel is eccentric in the highest degree, that the piston is liable at any moment to stop working . . . that a strong centrifugal force is constantly at work impelling the different parts of the machinery to fly out of their own orbits . . . he will then no longer look for the production of any highly finished article. Indeed, he will be surprised that the mechanical chaos before him is capable of producing any article at all.12

The construction of difference between chaotic Egypt, represented by the second factory, and highly coordinated European states, represented by the first, follows the orientalist lines of representation in Montesquieu’s account. Egypt is depicted as having an ineffective legal system, whereas Western systems of government perform to perfection.13 However, this passage is also concerned with distinguishing the ways in which the two different legal orders define the limits of their operation and organize the legal space inside them. The first legal order is based on particularistic, deviant, eccentric, arbitrary, and exceptional action. The second legal order favors generalizable features: patterned, bounded, and state-centric action. The second also represents the idea of the law of the land, according to which the same state law is applicable to all, regardless of personal 205

pow ers

characteristics, and is imposed as heteronymous law within the boundaries of a given territory.14 Cromer’s Modern Egypt, as well as the reports he wrote while in residence in Cairo, are full of references to the arbitrariness of the old legal regime in Egypt and the justness of the new, British-administrated legal order. Cromer understood the mission of the British as bringing about a transition from “arbitrary government to a reign of law.”15 He recognized that the precolonial administration used “methods” of law. There existed, for example, a “rude code of Civil Law,” which enabled the “worst illegalities to be hallowed by a legal sanction.”16 What was absent, though, according to Cromer, was a “system of justice,” for law and justice were completely divorced.17 The Ministry of Justice, under British rule, ascertained that justice in Egypt was administered according to “fixed principles.”18 The reign of law, which the British upheld in Egypt, was a system of abstract, unified principles that guaranteed justice. The British “system” of “fixed principles” replaced the “methods” of the past; in place of the khedive’s arbitrary sovereign decisions, the British insured a uniform legal system guaranteeing the “protection of the most humble individual . . . against the caprices of his ruler and of the Government agents.”19 What follows is not a historical refutation of the colonial representations of the precolonial Egyptian legal order by arguing for the coherence of that order. This refutation has been accomplished by historians of the khedival era, most notably Khaled Fahmy and Rudolph Peters.20 Instead, the account below portrays a more complex picture of constitutive coexistence in the colonial era between the rule of law and what it constituted as sovereign power. Specifically, khedival sovereign p ­ owers are shown to have been reconfigured during the colonial era when they became functional to a regime of rule of law. The colonial law that emerged out of this constitutive coexistence was not a system of monolithic, singular, and universal legality accompanied by some necessary sovereign exceptions inherited from the past and contaminating the present. As I shall detail in what follows, colonial law is better described as a map containing multiple “spectral legalities.”21

206

red zones

sov e r eign t im es, sov e r eign loss Just as Montesquieu elaborates on the two movements of will and of land, the historicizing force of the colonial law in Egypt moved on similar tracks. The decisions that set in motion the story of these two tracks consisted in the property-accumulating sovereign decisions practiced by Khedive Isma‘il during the 1860s and 1870s, before the British occupation of Egypt. The British defined the khedives’ accumulation of extensive holdings of property as a glaring manifestation of despotic power, which they then sought to remedy. In 1883 Donald Mackenzie Wallace wrote that peasants under Khedive Isma‘il were obliged to give their last piastre to the tax collectors and were always in danger of being compelled to give up their land “to gratify the insatiable land-hunger of an unscrupulous autocrat.”22 This was because Khedive Isma‘il, Wallace stated, desired to transform Egypt into a private estate planned and owned by himself: Isma‘il Pasha, at the death of his father Ibrahim, found himself in possession of about 15,000 acres, and one of the chief objects of his ambition even at that time was to acquire as much land as possible. . . . When he unexpectedly became the Khedive in 1863, he had abundant opportunities of pandering to his insatiable land-hunger. . . . He conceived the design of amassing by agricultural enterprises and speculating a gigantic private fortune, and he unscrupulously employed for this purpose the pecuniary resources and political power of the Government. . . . At the end of the fifteen years he had acquired by more or less legitimate means about 950,000 acres, nearly all first class land. This enormous mass of landed property comprised 51 estates, varying in size from under 1,000 to over 100,000 acres, and scattered sporadically all over the country, except in the lower portion of the Nile Valley . . . where they are so closely grouped as to form almost a compact whole, the area of which would make a good sized province.23

Khedive Isma‘il might have been motivated by greed, as Wallace suggests, but another logic was at work in the formation of large estates. As Timothy Mitchell points out, when Isma‘il came to power in 1863, he was searching for new methods of controlling the ways in which crops were grown, as the old methods failed both to fix peasants in place and to compel peasant labor to produce crops. Isma‘il therefore began to reorganize the whole country as a system of large agricultural estates.24 He directly owned some 207

pow ers

of these estates, which were organized under the Da’ira Saniyya, as the administration of the khedival estates was called. As for the estates granted to his family, officials, and occasionally servants, they were known collectively as “domain lands.” The area of such lands ranged from tens to thousands of acres. The following is an example of such an endowment, as decreed by Khedive Isma‘il in 1863: We have decided that three hundred acres are to be granted as an estate to his lordship Nuri Bey, Governor of Sharqiyya. We have given an order to his excellency the Inspector of the Lower Nile to have the said lands surveyed, their boundaries defined, and the list of boundaries sent to the treasurer. As soon as the list of boundaries reaches you, you are to record them and issue from the tax register, the required title deed in the name of the aforementioned and send it to him. This is the reason we have written this to you.25

This decree and others like it manifested the logic and workings of sovereign power. Khedive Isma‘il allocated certain areas to himself, his family, and his officials. The “arbitrariness” of his decision, from a rule-of-law perspective, was that he made no reference to any written law; the decree was his personal order, his words as they were stated, which declared some people to be the owners of specific areas of land. There was no purchase, no contract, no legal process of transferring property, only the command of the sovereign. Such logic and workings of sovereignty contravened Western legality of the late nineteenth century, which had come to base itself on the rule of law.26 For this reason, such a command was associated with injustice; the assumption inherent in this association was that general legal principles, absent in the case of a sovereign command, actually engender justice. This “virtue” of the rule of law had been established in England by the late eighteenth century. The fair dispensation of the law came to be equated with good government and justice, and the rule of law became a distinguishing feature of English politics, morality, and civilization.27 Specifically, nineteenth-century English jurisprudence of the rule of law, as formalized by A. V. Dicey, came to be defined as follows: first, individuals were only punished by the courts for breaches of the law; second, ordinary law was applied to every person, and ordinary tribunals tried them; and third, 208

red zones

principles and rights were the result of court decisions.28 The rule of law came to mean government by rules and the applicability of rules to all, instead of governance by caprice and despotism. When Cromer, therefore, wrote at the turn of the twentieth century that the British had introduced the reign of law into Egypt, he meant that the government of Egyptians was now being conducted according to a defined set of prescriptions and not according to the will of an individual.29 The British colonization introduced government by rules and thereby established its moral legitimacy both in Egypt and in other British colonies.30 In this transformation, what was the fate of the large estates accumulated by ­Khedive Isma‘il? What happened to the sovereign’s property, to the sovereign’s space, to the sovereign’s will? Or to draw on Montesquieu again, what was the new relationship to the land that a regime of rule of law brought about? During Khedive Isma‘il’s reign, the accrual of debts to European investors led to the imposition of the “dual control” of Egypt’s finances by Britain and France and to Isma‘il’s eventual deposition. The high level of debt stemmed mainly from Isma‘il’s practice of borrowing from European merchant-bankers to finance his development projects. By the time these obligations were to be fulfilled, he owed 84,000,000 francs to the Suez Canal Company for the return of rights to land and labor conceded by his predecessor, Khedive Sa‘id. Isma‘il thus obtained the first of the public loans that he was unable to repay, borrowing the money on the security of the railroads and the property of the Da’ira Saniyya.31 By 1875, Egypt was bankrupt. A British commissioner was selected by the bondholders, an Anglo-French administration was set up to run the railways, and British and French controllers of revenue and expenditure for the Egyptian government were appointed.32 Creditors began filing suits against the Egyptian government in the mixed courts of Egypt.33 As a result, Isma‘il relinquished his rights to some of his estates: in 1878, for example, he relinquished his family’s rights to 425,729 acres34 of land to the state in order to settle a loan of £8.5 million from Messrs. Rothchild.35 In 1878, Isma‘il issued a decree setting up an International Commission of Inquiry into Egypt’s finances, whose members represented the bondholders (two Frenchmen, two English­ men, an Italian, and an Austrian). One of its recommendations was to transfer the property of the Da’ira Saniyya to another commission for the 209

pow ers

administration of the estates. This commission was made up of three men: one Egyptian, one English, and one French.36 In 1879 the Ottoman sultan removed Isma‘il from office.37 Isma‘il left Egypt on June 30, and Egypt fell into the hands of bankers who were striving to secure their debts. European bondholders seized the domain’s estates as well as the estates of the Da’ira Saniyya. The decree, signed on October 26, 1878, in which Isma‘il transferred the estates to the commission, reads as follows:38 Whereas the members of our family, mentioned in two lists delivered by us to the Commission of Inquiry, have abandoned all this real property, in order that it should be transferred to the State, with a view to allow a settlement of the financial situation of the Government in a stable and equitable manner. On the proposal of our Council of Ministers, sanctioned by us, and after advice to that effect of the Caisse [Commission] of the Public Debt, have decreed and do decree:

Article 1: In the name of the above-mentioned members of our family, we cede in full possession, by these presents to the State, and thus, in perpetuity, all the real property belonging to them, and indicated in the article below. Article 2: A loan will be guaranteed in the name of the State for a sum of 8,500,000 sterling, nominal, as a maximum. Article 3: This loan will be guaranteed on the property ceded by our family to the State, consisting of 425,729 acres of land, and of houses. The net revenue of these lands and houses, according to the valuation given in the lists delivered to the Commission of Inquiry, amounts to a total of 422,426 sterling per annum. . . . Article 6: To give me more security to this loan, a Special Commission shall be instituted to administer this property. This Commission shall consist of three members. . . . Article 7: Our Finance Minister is authorized to settle the conditions of the loan with the contractors, and decide on the mode of employing the eventual surplus of the revenues of the ceded property. Article 8: Our Finance Minister is charged with the execution of the present Decree.

The khedive acknowledged the advice he had received but asserted that he was the one who decreed the relinquishing of property rights. The sov210

red zones

ereign, in one of his last formal sovereign decisions, ceded his property. However, this property, like others, was not an objective category with a fixed meaning and qualities; rather, it was a relationship, defined by law, between a group of people and a thing.39 It was composed of large estates that were formed by sovereign commands and constituted spaces that the khedive’s sovereign power materialized. The khedive ceded these spaces of sovereignty to the state. The state, in turn, received, by sovereign decree, spaces of the old sovereignty—the Da’ira Saniyya and the large estates of the domains. A moment of rupture accompanied the presence of the estates. At one and the same time the sovereign was gone and the spaces of sovereign command remained, now incorporated into and administered by the state. But did these spaces continue to carry the same meaning and engender the same operations? t h e birt h of sov e r eign t ies In 1888, the government reached a settlement of the claims of Isma‘il and his family. According to the settlement, the government was able to sell the Da’ira Saniyya lands and the domains. The direct administration of these lands was found to be costly, and thus the colonial administration decided to sell the estates that were part of the Da’ira Saniyya lands as well as the domains; as Cromer complained, “it was impossible to administer economically in Cairo large tracts of land scattered over the whole of Egypt.” It then became the policy of the government to sell as much land as possible. Cromer further explained that “these lands will, no doubt, sooner or later pass into the hands of the fellaheen, a result which, from the economical conditions of the country, is greatly to be desired.”40 The selling of the estates increased the state’s income, resulting in an increased ability to pay off the foreign debt. Occasionally, however, as Cromer noted, the government sold some of its prize assets cheaply, thereby helping investors to make a profit.41 The selling of the estates also resulted in releasing the central authorities of the state from the administration of vast areas of land that were taken over by private landowners. Cromer’s expectation that estate lands would pass into the hands of Egyptian peasants never materialized. On the contrary, large estates continued to multiply by other means.42 Government figures for 1894 show that 211

pow ers

42.5 percent of the land in private ownership was held in large estates of fifty acres and above,43 rising to a high of 45.1 percent in 1907. This increase was mainly the result of the sale of 450,000 acres of the Da’ira Saniyya land between 1900 and 1906. Other factors, in addition to the direct sale of Da’ira Saniyya land, facilitated the process of large estate proliferation. Immediately after they were created in 1875, the mixed courts began to authorize the seizure of land by European debtors in cases where peasants failed to pay their debts. Many peasants lost their lands to creditors for failing to pay off the loans they had taken to meet taxation requirements.44 Local creditors who loaned money to peasants could thus gain possession of peasants’ property when they failed to pay their debts.45 For example, in 1878 some seventy to eighty Europeans owned lands around Zaqaziq, and their total property amounted to approximately ten thousand acres. These Europeans acted as moneylenders for hard-pressed peasants in the area and could often buy land cheaply if a small proprietor decided to sell because he could no longer meet his tax payments.46 Europeans and Egyptians acquired additional lands in the 1880s and 1890s by investing in land companies. One company, for example, which was established and managed by Nubar Pasha—who held various ministerial positions prior to and during the British occupation—received 121,682 acres of Da’ira Saniyya land in the northern delta as settlement of a government loan in 1894. The company increased its property ownership to 150,000 acres through other purchases.47 According to one estimate, in 1887 European nationals held 225,181 acres in Egypt, as compared to ten years later when they held more than 550,000 acres, more than 90 percent of these being in large estates. By 1901, Europeans held 23 percent of the total area of the large estates.48 The European-held land was not subject to confiscation, since European governments objected to the application of confiscation laws to their nationals.49 The Europeans’ holdings of large estates primarily took the form of land companies, mainly founded in the 1880s and 1890s. By 1891, the French mortgage-credit company Credit Foncier Égyptien had become the fifth most important landowner in Egypt, having succeeded in raising its initial capital from £3,238,000 in 1883 to £8,317,000 in 1902.50 According to Gabriel Baer, by 1901 large estates formed a greater 212

red zones

percentage of foreign-held property than of landed property as a whole. For example, in the Canal Zone and the Suez, large estates constituted 69.2 percent of the total area, and Europeans held 42.6 percent of all large estates. Another land company that owned and ran large estates, the Land Development Company of Egypt, Limited, was registered in England. The objectives of this company were to “purchase or otherwise acquire, the freehold or other interest of and in any land buildings or hereditaments situated in Egypt and to resell, let or otherwise dispose of the same lands either altogether or in parts.” Another objective was “to improve and cultivate any lands, estates and properties, from time to time held by the Company or in which the Company may be interested, and to develop the resources of the same . . . and to buy, seek, or deal in produce and merchandise.”51 The Egyptian Cotton Planters Company, Limited, was also registered in England. The objective of this land company was “to carry on the business of cotton planters and agriculturalists in the cotton growing districts of Egypt; to purchase tracts of land and to improve the same for the cultivation of cotton; to advance money to Fellahs and other people by way of mortgage against the delivery of the crop.”52 The Cotton Lands of Egypt, Limited, was also registered in England. Its first listed objective was “to acquire by purchase, lease, grant or otherwise howsoever any land or interest of any kind or description in, or any option or right of purchase relating to any land in Egypt, or elsewhere, and to develop, work, exploit, sell, lease and dispose of the same.”53 Another company, the Sidi Salem Estates of Egypt, Limited, whose undertakings, assets, debts, and properties were transferred in 1909 to the Sidi Salem Company of Egypt, was created by a firman (decree) of the khedive.54 The purchasing operations of these land companies as well as their investment in agricultural production resulted in a dramatic increase in the price of property. In 1901 the Belgian consul-general reported that he knew of land that had risen in value by 100 percent over the previous seven or eight years. Similarly, whereas land in the delta was sold for £60 to £80 per acre in 1904, in 1905 one acre in the same area sold for £160. This was attributed primarily to the influx of foreign capital invested in these mortgages and land companies.55 213

pow ers

By 1919 Europeans owned about one-quarter of the large estates. The majority of the estates were owned by Egyptian individuals, the rest by foreign land companies similar to those mentioned above. A third group of owners consisted of the royal family of Egypt and a fourth of the two major waqf (Islamic charitable endowments) organizations.56 Together, these groups owned almost half of the private property in Egypt and, significantly, housed the majority of Egyptian peasants. The owners of large land estates effectively became the peasants’ rulers. The selling of the Da’ira Saniyya lands to private landowners, companies, and others resulted in great uncertainty for Egyptian peasants. Once an estate was sold, the peasants living on it faced the risk of being uprooted at any moment. Such was the case for the inhabitants of an estate near Luxur, located south of the Nile delta. The inhabitants rioted in 1913 after being evicted from the estate, which was purchased by one Visconti Fortarce. Reporting the incident to Sir Edward Grey, Herbert Kitchener, the consul-general of Egypt from 1911 to 1914, compared this incident to the “eviction of tenants in Ireland.” Kitchener explained in his report that the “original owner” of the land in question was Khedive Isma‘il’s brother, Mustafa Fadil Pasha, who constructed a number of houses for the peasants working the land. The occupants of the houses, argued Kitchener, “paid a small rent, levied in order to prevent any claim being set up for ownership.” Mustafa Fadil Pasha ceded the land to his brother, Khedive Isma‘il, making it part of the Da’ira Saniyya.57 In 1904 the administration of the Da’ira Saniyya sold this land and the houses on it to Visconti Fortarce, Lukan Murqus, and Mahmud Muhammed Sa‘id. The 407 peasant villagers brought a lawsuit against the buyers in the mixed courts, arguing that the houses sold belonged to them. The Mixed Court of Appeals ruled that the Da’ira Saniyya had full right to dispose of the property. Murqus and Sa‘id thus obtained an order from the court to gain possession of their property. The owners tried to convince the peasants to buy or rent the houses from them, but the villagers refused. Kitchener reported the following events: At 5:30 am, the huissier of the Mixed Court proceeded from Luxur to Armant accompanied by a force of ten policemen and an officer. At the location another lieu-

214

red zones

tenant awaited them together with six other men. Later, more forces were recruited as the initial group was unable to carry out the court ruling. Finally there was a force of forty ghafirs [rural security personnel] as well as twenty-one policemen. A clash between the force and the villagers developed resulting in the injury of seven overseers and seven policemen. In addition, the lieutenant was wounded under his eye from a brick thrown by the villagers. Fifty-seven villagers were arrested and one of them “died at the police station.” Another was “found to have lost the sight of one eye.” An inquiry was opened into the death of the villager.58

Very little evidence remains concerning the violent effects of the transfer of large estates to new owners.59 The above-mentioned incident most probably deserved a full report because of its lethally violent ending and because it involved Isma‘il’s brother. However, some evidence remains of attempts to remove peasants from former estates by other means, both legal and economic. Such was the case of the villages of Arment and Maris, which were part of the Da’ira Saniyya and were to be sold. The peasants, who were officially defined as “tenants” of the Da’ira Saniyya, were allowed to stay on their land, despite the objections of Sir Eldon Gorst, the British agent in Egypt from 1907 to 1911. Gorst complained that the peasants “had no legal right whatever to call these lands their own.” They received “special treatment” because they “had been settled on the land for many years and had been allowed to plant palms and build houses.” This special treatment consisted in selling the lands to the tenants at approximately one-half their estimated value. Additionally, arrangements were made with the Agricultural Bank and the Crédit Foncier to enable the purchasers to pay in installments over a period of twenty years. The interest rates charged by these two institutions were 7 and 6 percent, respectively. The government charged an additional interest rate of 5 percent in exchange for accepting payment in installments; despite the high level of this interest rate, Gorst emphasized that it was fixed and lower than the rates charged by private lenders. The villagers refused to make the payments. They argued that they should not have to buy the land because they had lived on it for years. And indeed, the previous khedival sovereign command had enabled them to do precisely that. In response, Gorst wrote that “the people [have] no 215

pow ers

real cause for complaint, but have on the contrary profited considerably by the favourable treatment which they have received,” that is, their being allowed to purchase the land, as opposed to its being sold to a third party. Faced with the villagers’ resistance, the Agricultural Bank of Egypt was allowed “to take necessary legal action to recover the money advanced.”60 The Agricultural Bank was established by the government in 1902 for the purpose of rescuing peasants from indebtedness to local money­lenders known to charge high interest rates. The indebtedness of the peasants resulted, for the most part, in the loss of their lands to the moneylenders. The latter in turn were able to form large estates created from lands taken from peasants unable to pay their debts. The Agricultural Bank fixed its interest rate at 9 percent and later decreased it to 8 percent. The recovery of loans was carried out by the government’s tax collectors, who received a 5 to 8 percent commission on collected sums.61 While the bank may have assisted a few peasants, the financial advisor reported in 1909 that the indebtedness of the peasants had increased.62 Far from alleviating the indebtedness of peasants, the bank rationalized it and centralized the profits. The arguments advanced against the bank’s activities were that it issued too many loans without ensuring that they were recoverable. The fact that the government gave its guarantee resulted in irresponsible moneylending on the part of the bank.63 As the account of the villages of Arment and Maris shows, failure to pay the Agricultural Bank resulted in more effective confiscation of peasants’ lands. The fact that the bank was a government initiative meant that contracts were less easily disputed, as they were immediately binding by law. They contained fewer openings for ambiguous interpretations of their legalities. The lands appropriated by the bank would be transferred to the state and then sold to private landowners. In this way, the process of the peasants’ deprivation, as well as the formation of large estates, continued by other means. produc t ion, su rv eill a nce , disa ppe a r a nce Large estates, in the hands of private landowners, became the terrain for the recovery of Egypt’s debts through the production of cotton for the world market. Large estates contained hundreds of peasants who were housed 216

red zones

and given small plots of land in exchange for their labor. This created a community of peasants dominated by a landlord, who also acted as an important economic actor and often exercised political power.64 Distant rural areas were beyond the reach of central authorities. Landowners were trusted to maintain order in these localities and to help in the execution of certain essential tasks such as taxation and conscription. Right up until the Land Reform of 1952, the countryside was dominated by some two thousand estate owners. There were various kinds of large estates, characterized by different relations of production.65 Evidence from the turn of the century suggests that there were three economic structures organizing production in these estates. At one end were estates farmed by the landowners with the help of permanent wage-laborers (the plantation system) and seasonal wagelaborers (the migratory labor system). At the other end were estates divided into small plots and leased to tenants almost in their entirety (the sharecropping system); tenants were also required to work on lands managed directly by the estate owner. Finally, there was the “mixed system,” the most prevalent, under which sharecroppers farmed the estate together with permanent and/or seasonal wage laborers.66 According to Roger Owen, during the 1870s the characteristic method of working the land on large estates was one in which the owner farmed only part of his estate himself, using service tenants or other peasants from outside the estate and paying them in cash or with a share of the produce. The remainder of the estate would be leased under a crop-sharing arrangement.67 From the 1880s on, however, arrangements between the peasants and landowners had become such that landlords paid their workers “in kind,” that is, with a share of the harvest. As cotton production began to dominate the delta economy, landowners switched to an arrangement in which some payment of money to the peasants was combined with an agreement to share the crops. Under this “cash-rent system,” the risks involved in agricultural production were no longer shared between the peasant-tenants and the landlord but were thrust entirely upon the shoulders of the peasants. To secure the rent, landlords lent large blocks of land to intermediaries on the security of a mortgage; in turn, these intermediaries would sublease the land to peasants in smaller blocks. Owen notes 217

pow ers

that the cash-rent system was first introduced in 1883 by the state’s domains administration, which was at the time under the supervision of the European bondholders.68 The majority of the estates, however, were run according to a combined wage and crop-sharing arrangement. The estate controlled most links to external markets for crops and labor. The estate community interacted with market and state actors through the mediation of estate management, which varied according to the size of the estate. Generally speaking, however, estate management consisted of an agent (wakil), who managed the estate on behalf of the estate owner. Under the manager-agent were inspectors (nazirs), who monitored the labor activities and other aspects of the estate (irrigation inspectors, animal inspectors, cotton inspectors, and so forth). Under the inspectors were overseers (ghafirs), who were stationed at specific places on the estate to maintain security. Some large estates also had translators, accountants, and other clerks.69 The system of the large estates, regardless of their size, left little structural basis for direct conflict between the estates’ owners and the state over life within them. The state was relevant only as an enforcer of order in cases of criminal activity, where the estate management desired state intervention.70 The estate represented a system of supervision and coercion, which maintained peasant cultivators on the land. The spatial organization of the estate, which enabled ongoing inspection and surveillance, prevented peasants from abandoning cultivation.71 The estate system forced large numbers of peasants to grow crops under the orders and for the benefit of an outsider.72 In addition to the peasants who lived on the estates, there were also seasonal peasant laborers who worked during the cropping seasons; these appear to have been the most exploited by estate owners. They lacked a stable place of work and therefore could be employed in exchange for very low wages. Some estimates indicate that at the turn of the twentieth century there were approximately 659,900 seasonal laborers in Egypt, working for the most part on large estates; their average wage was three piastres a day.73 Estate owners complained that, unlike peasants who worked within the sharecropping system, seasonal laborers had no vested interest in improving the productivity of the estate, as their wages were fixed. These 218

red zones

laborers were therefore subjected to strict surveillance by estate inspectors, whose sole task was to monitor and discipline them.74 The estates effectively made some aspects of peasant labor on the estates invisible to the state. Peasant laborers were locked in estates and forced to work under labor conditions in which the state never interfered. The state, for its part, was engaged in “selective seeing.” It provided police personnel not for the estates themselves but for rural areas containing them. Police were mainly deployed to prevent bandit criminals from hiding on the estates. The state also sent its own inspectors from the Ministry of Irrigation and the Ministry of Agriculture as part of its efforts to improve cotton production. The state encouraged landowners to introduce superior methods of cultivation and to purchase European machinery. The state thus intervened in the estates in two areas: agricultural state policy (irrigation and cotton quality) and rural criminal activity—these were the objects of state vision. Agricultural labor, however, did not fall within the state’s field of vision.75 A permit from the provincial council was required for the establishment of new estates. The council considered the size of a proposed estate, the number of the peasants who would be working on the estate, the distance between the estate and the village or other places in which peasants might live, and the costs entailed in securing the estate. The demolition of an estate could be ordered if it became a refuge for “notorious criminals.” In addition, an estate could be demolished if there was a failure to secure it from criminal activity or if the cost of maintaining security was too high.76 Effective control over the estate was left in the hands of estate owners’ agents or inspectors, as landowners generally did not live on their estates. Estate inspectors had absolute authority over peasants’ lives. The management of peasant labor in the estates was rarely recorded in the state archives. Documents from the various ministries do not contain information on the internal mechanisms of the estates’ disciplining and governing of labor, the absence of which is indicative of what the state “saw” and what it made “invisible.” Occasionally, however, state archives reveal some traces of peasants’ lives on the estates; such traces were left, for example, upon the murder of an authority figure on an estate. The investigation of such a murder would result in some evidence of the treatment of peasants. Prosecutors did not 219

pow ers

try to learn more about abusive management in order to be able to punish it, however; rather, they often recorded the evidence of estate managers, inspectors, or owners who abused estate peasants in their search for evidence about individuals most interested in killing inspectors, in order to establish motives for murder. On one estate, in 1910, which seems to have been run under a combined wage and crop-sharing arrangement, the estate manager was murdered. Police investigations, directed at discovering who would have been most interested in murdering the manager, reveal information about the fate of one peasant overseer. This peasant overseer, the police records narrate, stole oranges from the garden of the estate manager. As punishment, the manager deducted the equivalent of fifteen days of work from the overseer’s wage and corporally disciplined him.77 The manager also seems to have arbitrarily raised the rent he charged some peasants for leasing estate property. When the peasant overseer refused to pay the additional rent, the estate manager confiscated his crops and requested that he leave the estate. The overseer begged the manager to reverse his decision, and the latter finally agreed to return the crops only after the former’s departure: the peasant overseer and the manager reached a settlement and the rent was paid in full. Given the abuse that this peasant overseer suffered at the hands of the manager, the police suspected that he was the murderer, and because of this suspicion there is a trace in the archives concerning labor conditions on the estate.78 In another case from a different estate, the prosecution investigated the murder of an estate agriculture inspector, Salim Afandi, and recorded some of the deceased’s abusive practices against the peasants in the estate. In the prosecution’s report to the court, the prosecutor stated that Salim Afandi was “famous for his honesty and integrity; he monitored the estate’s inhabitants so that they could not defraud the property of his employer.” The assumption of the prosecution was that this might have resulted in some peasants disliking him. At the beginning of the investigations, the prosecution identified two suspects in the murder case, the first of whom was ‘Ali Salim. The deceased inspector had dismissed ‘Ali from working on the estate for being deceitful and complaining about him to the estate’s owner. The inspector had also confiscated the wages of ‘Ali’s mother. Prior 220

red zones

to his murder, Salim Afandi had decided to expel ‘Ali and his family from the estate; nevertheless, they were able to stay on the estate after appealing to the landowner. The second suspect was ‘Abd al-Mawla Sa‘d, an overseer on the estate whom the inspector had dismissed for not carrying out his duties “with honesty.”79 In this case, upon suspecting ‘Abd al-Mawla of deceit, the inspector had demanded that another overseer be stationed alongside ‘Abd al-Mawla, resulting in a decrease in the latter’s wages from one pound to sixty piastres a month. ‘Abd al-Mawla refused to have another overseer stationed with him and was consequently dismissed. He asked the inspector to allow him to return, but the inspector rejected his request.80 The prosecution pressed charges against ‘Abd al-Mawla Sa‘d, but the court decided that there was not enough evidence to convict him. The search for other suspects continued and the court finally found another person guilty whom the deceased inspector had threatened to expel from the estate.81 Private property, then, became the mechanism of controlling labor. But what were the characteristics of these private estates? What was their relationship to the general juridical order? const i t u t i v e rup t u r es Large estates represented colonial legalities that had their beginnings in sovereign commands but carried a new mark of sovereignty under the regime of the rule of law, this time in the form of private property rights. When Khedive Isma‘il was in power, the estates he owned were his estates or were ceded to his family members and officials. There was no clear-cut distinction between the ruler’s estate and the state’s land, as the state’s land, at least theoretically, was at the ruler’s disposal. In 1877, the Da’ira Saniyya comprised a total of 485,131 acres and the domain land 425,729 acres. The latter, despite being defined as state land, was also owned by the khedive and his family. Much of it was distributed among Isma‘il’s relatives in the 1870s and became known as Da’ira della Famiglia.82 In many cases, moreover, estates were forced upon officials who did not necessarily want them and saw them as a burden. Under colonial rule, these estates were released from the state to the sovereignties of private landowners. The state sold the Da’ira Saniyya estates to private landowners and constituted its law in relation to their legalities. The state expelled the 221

pow ers

estates to lie outside the reach of its direct oversight and held their owners responsible for maintaining productive order on them, passing regulatory power on to the estates. This expulsion is recorded in Egyptian collective memory, a testament to the expulsion’s enduring power and influence. This memory, as depicted and articulated in various cultural forms including films and novels, reveals stories of peasants’ abandonment to the cotton estates. The epigraph to this chapter is one such account. Exemplifying the intersection between law and geography, large cotton estates are portrayed as islands of sovereignty in which landowners, through their agents, held total control over the bodies and lives of the peasants working on them. We hear of corporal punishment, violent disciplining, private prisons, long working hours, insufficient wages, severe poverty, cornbread as the food of survival, disease, and death. We also learn of violence—deadly violence—not only as exercised by landowners’ agents against the peasants in the estate but also among the peasants themselves.83 If you ask anyone in contemporary Egypt about the legalities governing large estates, they will tell you, “Those estates were private and were governed by customary law.” The state did not interfere in the estates.84 This abandonment is revealed in the memories of a particular community of people who lived in one estate, ‘Ezbet Murjani. Reem Saad has recounted their memories: They used to wake us up in the middle of the night without wages in order to work and irrigate in exchange for our living in the duwwar [a mud brick house built to house the laborers]. It was humiliating there; would I be living in the owner’s house and be able to raise my head?85 The Pasha was a feudal man. In the duwwar of the wisiyya they used to come in the midnight cold and tell us either go in this cold and irrigate the land or we throw you and your things out. We used to work and my mother also, in the wisiyya [estate] but in the end the nazir [inspector] would deprive us of our wages.86 We used to bring our things day by day. We were five persons. We bought a measure and a half of flour for six piasters and tea and sugar for four piasters. We would send any of the children to pick a watercress branch from any field

222

red zones

and eat; of course these things are not nourishing. In the old times people were ill because of the lack of food.87

Egyptian collective memory records the estates as pockets of pure sovereign power where no rule of law existed—they were lawless islands literally unseen by the state. For under colonial rule, the regulatory power of the state and its rule of law no longer reached estates, now governed by private legalities. It is in this sense that estates marked the limits of state law and were external to it. This differs from the khedival order, when the law of the sovereign was the law of the land and his will proliferated. In the khedival order, estates, to borrow from Montesquieu, covered the whole of the land and were part of the state. The transfer of estates to private landowners was productive of a series of distinctions between public and private, the rule of law and the sovereign command. The proliferation of these distinctions served to posit the state on one side and the estates in opposition to it.88 This expulsion of the estates from the state was constitutive of the state. The state could mark the empirical ends of the reach of its regulatory powers through a regime of private property, which became a technology of labor management. While situated outside the state, in that they were owned by nonstate actors, to whom state law constituted itself in opposition, the estates continued to proliferate within the law. Derrida’s essay “The Force of Law” is instructive here. “That which threatens law,” Derrida writes, “already belongs to it, to the right to law, to the law of the law, to the origin of law.” Further, “the founding or revolutionary moment of law” is “in law, an instance of law. But it is also the whole history of law.”89 Private estates are the history of public law in Egypt and simultaneously its exterior.90 Pointing to this belonging, I would add, does not merely indicate the persistence in the law of that which has supposedly been overcome (the threat, the external, the sovereign power). Reversing the hierarchy between the inside and outside, past and present, is the first step toward examining the relationship between sovereign power and the rule of law. More significant are the terms by which the old remains inside the new and the meanings and operations that sovereign power acquires under the regime 223

pow ers

of the rule of law. For sovereign power is not singular across historical times; it gains an appearance of unity when it is juxtaposed to the rule of law. By what terms, then, did the sovereign command persist, and what new historical relationships tied it to the rule of law? I want to suggest that estate legalities were external to the rule of law only insofar as they marked the empirical ends of its regulatory power and hence the limitations of the concept of law, but not the limits of its regulatory capacity. Capacities have no fixed boundaries; they perform their own reach and as such defy the concept of the law. This performed capacity of the law can be traced by examining the legal practice of the state in relation to the estates. Yet tracing this relationship presupposes that the two sides of the relationship are readily available in the archives, even as we know that state archives and legal texts are themselves the product of operations of the rule of law. How can we search for the involvement of the rule of law with sovereign decisions in the very texts that attempted to establish the rule of law and suppress the persistence of sovereignties? The structure of state archives reveals a striking disparity between what one finds in them—the legal texts of the time (the reference here is to textbooks, journals, court rulings, and so forth)—and the collective memory of Egyptians, which, while not necessarily fashioned or authorized by the state, was nevertheless affected by its terminology. Just as when we listen to witnesses of violence, we have to listen to what is unsaid; just as we argue that in every testimony there is a lacuna, testifying to the unspeakable; so we can speak of lacunae in archives, or the destruction of the archive. The agents of state law did occasionally enter the estates. They did so not in order to ensure the just treatment of peasants but rather to investigate certain criminal activities. Two kinds of criminal activities invited the state in. The first was murder: police or prosecutors would enter the estates to investigate crimes of murder, such as those mentioned previously. Second, the police would enter an estate to locate “notorious criminals” who had found refuge there. Some records of such cases are available in the Egyptian archives. On reading the hundreds of pages of these records, it is difficult to escape the impression that the estate was run as a sovereign island, cut off from the world outside it, a world unto itself. Like collec224

red zones

tive memory, but lacking its rich details, these documents leave us with an initial sense that the cotton estates were closed localities abandoned by the state and denied the protection of its laws. A policeman investigating a crime might ask a rural overseer hired by the estate owner: “Why don’t you know who the murderer is?” or “How is it that you don’t know who carried out this specific activity?” or “You were supposed to be stationed in this location—how is it that you abandoned that location?” In one case, for example, the prosecutor investigating the murder of the estate owner’s agent summoned the estate’s shaykh (chief overseer) and asked him, “As the shaykh of ‘Abd al-Qadir Pasha’s estate, you should know the truth, so who is the killer of the inspector?”91 The legalities of these estates seem to have been geographically distinct from state legalities, or perhaps they were pockets, or “colonial enclaves” to use Lauren Benton’s spatial imagery, within the state.92 Under the private legalities governing the estates, the landowner was the sovereign king of the island and the various overseers and inspectors its officials. A sense that the peasants were totally abandoned by the world outside is impossible to escape. And yet we can still trace a relationship between the state and the estate when the agents of the state—the executors of the rule of law—were forced to reveal how the estates were run. Despite the purified concept by which it was now defined, state law and its agents had to confront its “other,” private legality and their sovereigns, and manifest a certain relationship to it. These confrontations constituted concrete relationships that were central to the history of state law and the estates. What emerges out of this confrontation is not the separateness of state law and the estates but their indebtedness to each other; and this indebtedness is a site for historical inquiry. Consider the case of a murder that took place on the Qawish estate on November 4, 1897, which forced the policeman in this case to learn about estate violence during the course of his investigation. Muhammad Salih, the secretary of the estate owner and effectively the estate’s manager, was murdered. Upon receiving a report on the incident, a prosecutor from the Public Prosecutor’s Office went to the estate to investigate the crime. Salih, we learn, was not living on the estate but with the estate owner in her house in Cairo. Salih used to visit the estate once a year during the 225

pow ers

cotton season and would spend a week or so there. He made decisions on financial issues and on how much land to give to peasants, and he inspected work on the estate. On the night of his murder, Salih was sitting with other people in his garden on the estate when he was shot to death.93 The investigation led to one defendant, Murjan al-Sudani. Prior to S­ alih’s tenure, under the sharecropping arrangement that existed on the estate, Murjan was leased five acres of land in exchange for labor on the estate. When Salih became the manager, he reduced Murjan’s allotment to two and a half acres. It would later be revealed that Murjan had only ever received two and a half acres. In the course of Murjan’s interrogation, however, he confessed to the crime. On being asked about his reason for committing the murder, he responded: He made my son suffer. I had a son. His name was Muhammad. Muhammad S­ alih took him three years ago to serve in the landlady’s house. He used to beat him. One night the boy was carrying a tray and walking slowly, and he beat him in his back with his shoe. The boy fell and the tray fell as well on him and injured him. He fell sick for two months. . . . I went to the landlady’s house and I found him sick, and I brought him here. He told me the story. He died after three months.94

This quotation constitutes a rare glimpse of the misery created by the power relations on the estate. Its significance, however, is not so much in the actual voicing of oppression but in the way in which the prosecutor then related to this oppression. The latter, upon hearing Murjan’s reasoning, asked him: Q: Did you ever inform the estate owner that the deceased used to beat your child? A: She heard of the incident, and I had complained to her daughter Amina Hanim. She said never mind. I told her that I was going to take him back home.95

Nowhere in this protocol, or in the entire record of this case, is Murjan asked whether or not he filed a complaint with the police. The only figure of authority about whom Murjan is questioned is the estate owner. Later, she would also be summoned and asked whether or not Murjan had ever told her about the incident. 226

red zones

In this case, state law entered the estate solely to investigate a murder, which invited the penalizing power onto the estate. But state penal law did not intervene in everything: the management of peasants and their labor, even when exported outside of the estate, as in the case of the son, marked the exterior of state powers.96 It could be argued that this lack of interference constitutes a suspension of law. But this suspension was in effect an operation of law, a fulfillment of its capacity to suspend itself. As a state agent, the prosecutor performed his role as the guardian of the rule of law as he inquired into the other local authority. Law was not suspended; its capacities were carried out. To argue that it was suspended is to assume that it had an existence that was fixed and unrelated to the way in which it was performed; it is indeed to accept that the law maps out only onto the concept of the law. It is also to equate the law with a body of rules that always remains within itself, always fixed within its concept, with no built-in capacities exceeding this conceptual fixity. Law, in such a view, always ends up being located in a place, not at the interface of the different spaces of its capacities. The argument that the rule of law was performed at the interface of these two realms, of the state and of the estate, and not suspended as one crossed over from one into the other, is made evident in the writings of Sir Thomas Russell Pasha. Russell Pasha held various positions in the Egyptian Service, ranging from inspector of the Ministry of the Interior in Egypt’s rural provinces to chief of police in Cairo. In his book Egyptian Service, which is based on his experiences there, he discusses, among other things, “the criminal nature of Egyptian peasants.” He argues that the most common crime in the country, especially in rural areas, was murder, and that 80 percent of rural murders were committed for reasons of vengeance. Murder among the peasants was “a private affair which hardly affect[ed] the community. Eight out of every hundred of these murders [were] the result of private feuds which in other countries would either not occur or would be settled in the Law Courts.”97 The government, Russell argued, was unable to eradicate this “habit,” which was not consistent with the organization of a “civilized society.” The reason for this failure, he said, lay in the phenomenon of absentee landlords, who lived in the cities and did not visit their estates to supervise 227

pow ers

the peasants working on them. “Even an Egyptian nazir (inspector) takes severe risks when he tries to enforce discipline on an estate by punishing or dismissing a labourer for laziness or disobedience, often paying for it with his life.”98 The owners of the estates, Russell concluded, had all been shot or frightened away. The estates, for Russell, represented zones that made possible the worst forms of violence. Explicit in his discussion of the government’s failure to eradicate murder is the failure of other agents, the estate owners. The latter’s failure to maintain order on the estates—attributed to the peasants’ murderous nature—contributed to the failure of the rule of law to prevent murder among peasants. The authority on the estates, for the person who became chief of police in Cairo and worked for many years inspecting rural Egypt on behalf of the Ministry of the Interior, was the estate owner. t he stat e of t he estat es How does the preceding consideration of the historicity of the estates shift the understanding of the modern rule of law, its claims to universality, singularity, and abstraction? Michel Foucault’s writings on the relationships among modern power, sovereignty, and the law are useful in addressing some of these questions theoretically, notwithstanding his general marginalization of colonialism.99 In The History of Sexuality, Foucault argues that power in modern society is no longer located in the sovereign but in the disciplinary functions of the social; a disciplinary power supplants old juridical modes of power.100 What is deposed is not law in general but that which Foucault calls “the juridical,” or law in the form of sovereignty.101 In the new regime of power, law becomes a set of normalizing rules.102 This is also Montesquieu’s argument concerning the relationship between despotism and the republic. The main difference between the two is that for Montesquieu this transition is a sign of progress, whereas for Foucault it is a shifting modality of power. Foucault’s later lecture, “Governmentality,” offers a more complex picture of the relationships among sovereignty, discipline, and government. In this lecture, he argues that there was not a replacement of one regime by another, but that instead, the modern can better be conceptualized as a “triangle” of “sovereignty-discipline-government, which has as its primary target the 228

red zones

population and as its essential mechanism the apparatus of security.”103 Crucially, sovereign power is exercised in relation to the land and the subjects who inhabit it. Because sovereign power is circular—that is to say, the prince’s objective is to maintain his principality—the prince, or the sovereign, is bound to his territory and subjects. If the end of sovereignty is nothing other than submission to sovereign power, the land is the site of such ends; continuity is thereby established between the land and the sovereign.104 What happens, then, to the relationships to the land once we move away from sovereign power, or the juridical understanding of power, to the modern regime of power? The first few lectures of Society Must Be Defended provide an interesting answer to this question.105 In the second lecture in particular, Foucault discusses domination in nonsovereign terms. Domination, he argues, comprises “multiple forms” that “can be exercised in society; so, not the king in his central position, but subjects in their reciprocal relations; not sovereignty in its one edifice, but the multiple subjugations that take place and function within the social body.”106 This does not result in the withdrawal of law and right. Rather, they are now “permanent vehicles for relations of domination, and for polymorphous techniques of subjugation.”107 Law remains central, though it is no longer approached as a problem of sovereignty and obedience but as a problem of domination and subjugation. Modern law, then, is no longer the law of the sovereign, no longer a singular sovereign edifice, but appears in the plural as vehicles for relations of domination. What is the fate of the relationship to the land with this shift from the singular law of the sovereign to the multiple laws-asvehicles? The spatial terminology, which Foucault deploys to explain how to study power in the plural, is helpful. He writes that one should examine power “at its extremities, at its outer limits at the point where it becomes capillary; in other words to understand power in its most regional forms and institutions, and especially at the points where this power transgresses the rules of right that organize and delineate it, oversteps those rules and is invested in institutions, is embodied in techniques and acquires the material means to intervene, sometimes in violent ways” (emphasis added).108 In colonial Egypt, these regional forms of power that transgress the rules of right (the central edifice) and acquire violence as a means of in229

pow ers

tervention were precisely the large estates. They were the geographical forms, the zoned lands, the “extremities” of power, where “its exercise become less and less juridical” (emphasis added).109 Foucault does not say that these regional forms of power are nonjuridical, but only that they are “less and less juridical.” Indeed, as quoted earlier, they “transgress,” and in that verb there is no movement away from the law but a movement around the boundary of law, which is simultaneously their vehicle. If the law of the sovereign produced singular continuity between the land and the sovereign, technologies of subjugation, whose vehicles are law and right, take regional or geographic forms. We have, then, landed zones of subjugation that are less and less juridical but at the same time transported by the law/right, now understood in the plural. For the law consists in both vehicles and boundaries, and, we can add, capacities and powers. Sovereign power/sovereign law, which produced continuity between the prince and his land/principality, is now fragmented into smaller geographic pieces of land, large privately owned estates. The plurality of estates is also the plurality of the law settling in geographic regional forms.110 This is different from the continuity between sovereign power and the land; both sovereignty and the land are now divided. State law, represented as abstract, universal, and singular, gains the materiality of private properties and the divisibility of geography. The large estates of Egypt comprise a map of multiple red zones of legality. Each estate was owned by one landowner and run by its own management. The landowner ran the estate according to the ordering mechanisms that he or she found suitable for maintaining productivity and control of the estate. The landowners imposed their own commands. They were not sovereigns of the general body politic but of small communities of private economic formations that effectively transformed Egypt into one big estate. In other words, there were many sovereign commanders in Egypt governing the thousands of estates dominating the entirety of Egypt’s rural areas. Private estates did not belong to the general order of the law solely in the form of their exclusion. The estates constituted a layer of the juridical order. The preceding analysis defined sovereign power in relation to the land, divided the land and power, and located them inside the juridical order via the mediation of private property and as an integral part of it. This analy230

red zones

sis moves away from an understanding of sovereign power under a ruleof-law regime as solely external to the juridical order, or as threatening it from without, or from the past. Instead, the analysis interrogates sovereign zones as spaces of modern law’s multiple legalities. Rather than beginning with the rule and locating the sovereign exception in relation to it, as that which continues to pollute it from without, large estates are understood to be forms of legal ordering within the general order of the rule of law, while marking the exterior of the reach of law’s powers.111 What Giorgio Agamben calls a “zone of indistinction” between inside and outside, the rule and the exception, I describe as “multiple zones of spectral legality” in law.112 Instead of conceptualizing sovereign legalities as situated at the threshold of law at its limit and thereby reproducing the dichotomy between inside and outside, even as one questions it, I suggest that we need to consider these spaces of sovereignty as the building blocks of the juridical order, as spaces signifying its capacities. It follows that the exterior of law is a matter of history, as is its interior. It is shifting and gives law its identity at specific historical and political moments.113 The singularity of law, to which exceptions can be identified, is the temporary fixity we are left with after the law has constituted its concept and produced its metanarrative of singularity. In her breathtaking remapping of imperial world history and law from 1400 to 1900, Lauren Benton traces the divisibility of sovereignty. She argues that spatial irregularities, not absolute distinctions between the absence or presence of a sovereign, were constitutive of early modern and modern empires. Rather than examining the colonies as the exception to sovereignty, Benton calls attention to the uneven extension of sovereignty, to the “differentiated legal zones” as they “dotted the landscape.”114 Or as she argues: “The rule of law contemplated no externalities because it implied the circulation of law in different forms into all spaces of sovereignty.”115 Colonial enclaves, therefore, present a problem not of lawlessness but of quasi sovereignty. Benton theorizes some of these legal geographies as anomalous or irregular. This theorization challenges the seductive narrative about the transition to modern sovereign states and the progressive rationalization of space. My analysis of the red zones of Egypt suggests that this irregularity can only be conceived after the law has constituted itself as regular. The different starting points of the two accounts explain 231

pow ers

the varying articulations. Where Benton traces the expansion of European rule into different geographies, the analysis here started with the regional forms as they existed prior to European incursion and traced their history of metamorphosis. The “regular,” “indivisible,” “universal” therefore appeared as the historical-juridical reconfiguration of spatial forms and their temporary constitution as embodied in the purified concept of the law. Instead of beginning with a fixed, singular, modern law and pointing to its exceptions, we might wish to begin with plural legalities, which simultaneously constitute law and mark its temporary exterior.116 In this case, we would attend to the production of the general juridical order, not to its exceptions. We might not find a zone of indistinction, expanding in certain times and shrinking in others.117 Rather, we may begin to see the entire history of law as a history of zones transgressing rules, purifying them, and mixing them up. This is not to say that there is no boundary constituting the rule of law as singular and separating it from zones of the estates. Were it so, this boundary would not be so powerful in the positivist discourse of the rule of law, which left its marks on the lives of peasants. t he per m a n ence of legal silence Law’s performed silence on the estates posited the estates as outside the reach of the powers of the rule of law. This positioning, realizing the estates as islands of pure sovereignty, was not just constitutive of the archives or of the rule of law’s metanarrative. This positioning also produced subjects who went about their lives believing that the state and its rule of law would not intervene in the estates’ internal affairs and preferring to settle their own disputes, sometimes violently. The murder of Hajj Khadir Rizq is one case in which some peasants resorted to bloody violence. He was the owner of the estate where he lived as well as the person who mistreated the peasants, so there was no higher authority to which to complain. Hajj Rizq was a landowner who ran his own estate, and he often visited and inspected the work carried out on it. ‘Ali ‘Affuf, a peasant who worked on the estate, conspired with a neighboring estate owner and killed Hajj Rizq, together with other members of his family. The investigations conducted in the case revealed some stories about Hajj Rizq’s abuse of ‘Ali. On the day of his murder, the de232

red zones

ceased corporally disciplined ‘Ali’s wife and son after he discovered that four kilo­grams of beans had been stolen from him. Hajj Rizq repeatedly asked ‘Ali about the person who had stolen the beans, striking ‘Ali’s son and wife after each question. He also hit another peasant, Hassan. He beat them three to four times.118 ‘Ali later denied that Hajj Rizq had ever hit his wife,119 though his wife testified that he had.120 The investigations also uncovered another story concerning the death of one of ‘Ali’s sons at an early age, which seems to have been caused by Hajj Rizq. The boy had been filling some canals with water; when the deceased saw that he was overfilling them and whipped him for doing so, the boy fell sick and died. ‘Ali was convinced that Hajj Rizq’s whipping had caused his son’s death.121 It is impossible to verify the details of the abuse, as accounts of the events varied. All accounts, however, led the prosecution and the court to conclude that it was for reasons of vengeance that ‘Ali and his family members had murdered Hajj Rizq. The owner of the estate bordering the deceased’s estate, who had a conflict with him over irrigation, assisted ‘Ali and his family in the murder. ‘Ali, in the prosecution and court records, appears as a cold-blooded murderer who had betrayed the person who fed him—the estate owner. However, ‘Ali was also a seventy-five-year-old peasant who had often been humiliated, together with his family, by this landowner. Filing a complaint with the police against Hajj Rizq seems not to have been a plausible option. In fact, as in the above-mentioned case of Murjan, the prosecution never asked whether or not ‘Ali had complained about Hajj Rizq to the police. The solution ‘Ali seems to have chosen was to rid himself and his family of the estate owner. The fact that he conspired with another estate owner testifies to the power of estate owners in the eyes of the peasantry. This story of vengeance and the others recounted in this chapter invite a different interpretation of Russell’s above-mentioned observations on the prevalence of vengeance among peasants living on large estates. Vengeance, in Russell’s account, was articulated in relation to the law, and more specifically, to the courts. Vengeance was what the modern rule of law replaced in other countries, and yet it persisted in Egypt despite the law’s efforts. Are there other ways to conceive of the relationship between vengeance and the colonial rule of law? 233

pow ers

Vengeance may have been very common among peasants in khedival Egypt and was certainly not a colonial invention. But what the various stories of vengeance recounted in this chapter impress upon us is that the colonial rule of law might also have facilitated vengeance. Rather than combating private violence, the rule of law, by exteriorizing the estates beyond the reach of its regulatory powers, reinforced patterns of vengeance. It is difficult to avoid the conclusion that peasants recognized the silent manner in which the rule of law performed its presence on the estates. The work of silence affected peasants’ actions. They rarely complained to state authorities, for the estates were positioned outside the reach of their powers. Alternative mechanisms had to be found, or reintroduced, to settle disputes, undo harm, and end abuse. Vengeance was one such familiar mechanism. Revenge, then, should not be understood within the framework of premodern violence versus the civilized rule of law, as colonial officials would have it. A more appropriate framework for understanding vengeance under the colonial rule of law is as a form of alternative dispute resolution. As some sociolegal scholars have argued, alternative mechanisms of dispute resolution were not outside state law but in many instances were coordinated and consolidated by it. The state needed these spaces of informal legality in order to tighten its grip on the population and make it more effective.122 In Egypt, the analysis is slightly different. Vengeance was the means through which peasants reacted to the legalities imposed in the exteriorized zones of sovereignties. In the absence of estate courts, vengeance was the alternative means. But, of course, vengeance resulting in murder brought in the state, revealing once again the realms’ interrelatedness. In another case, the testimony of Salim al-Sudani as to his reasons for murdering his employer, the ‘umda, testifies to what abandonment had the power to inspire. The ‘umda, we learn from the investigations, used to corporally discipline Salim. One day, after being beaten in a field, Salim killed the ‘umda, then immediately confessed to the crime.123 The following testimony is from the records of the police investigation:124 Q: Why did you kill him? A: He would beat me.

234

red zones

Q: What did you use in killing him? A: The hatchet that I use for work. Q: How many times did you strike him? A: Four times. Q: Where? A: Twice above his neck . . . Q: Who told you to kill him? A: Nobody. I killed because he used to kill/beat me.125 Q: How many times did he beat you? A: Every day.

Salim did not murder an estate owner or an estate official; he murdered the “master,” the chief of the village in which he lived. Though this case is not about estates, his articulation of revenge reveals the sense of abandonment with which peasants in rural Egypt had to cope, whether living on estates or at the mercy of other landowners. Salim resorted to a private, bloody mechanism of dispute resolution because the only authority to which he could have complained was the same party that abused him. jur idical hum a nit y a nd legal plur alit y What does the seeming exclusion of the estates’ legalities and their violence from the state rule of law indicate about modern law’s relationship to violence and the resulting historical institutions of juridical humanity? As I argued in chapter 3, modern law does not disavow its violence; instead, it recognizes its possibility and defines it as a means to certain ends. The violence of the law is that which is necessary and instrumental to achieving a specific justified end. Law’s violence in excess of this instrumentality is illegal, a suspension of the law. But I also asked in chapter 3 whether there is a way to think the pain-inflicting violence of the law outside its instrumental logic, outside the instrumentalization of law’s violence to the end of the law, or to the end of the human. Is there a way not to repeat the meta­narrative of the law, not to reproduce the means/ends relationship, not only by introducing another end but also by suspending the vocabulary of the law altogether? I suggested that the pain-inflicting violence of the law in effect collapses the means into the ends. The human is both 235

pow ers

the end of law’s violence and its launching ground. Absent a distinction between means and ends, law’s violence is less instrumental and more arbitrary. The relationship of modern law to its own sanctioned violence is not only one of instrumentality but of arbitrariness as well. How does the discussion in this chapter contribute to the writing about law’s violence beyond the relationship between means and ends? Does the realized exteriority of the large estates complicate the instrumental relationship that law declares to its own violence? Might it be that this realized exteriority of the estates’ violent technologies of labor management is itself the ground of law’s arbitrary violence? To answer these questions, I offer a brief account of the outlawing or criminalization of some of the state actors’ violence in order to juxtapose this legal treatment to the realized exteriority of the estates. Penal law regulated the use of violence by state officials and criminalized the official use of some violence. For example, section 5, under part 2 of the 1904 Penal Code, “Crimes and Offenses Endangering Public Interest and Their Punishment,” regulated the actions of state agents. This section included articles stipulating the penalization of officials who exceeded their authority or failed to carry out their duties.126 Section 6, under the same part of the Penal Code, focused on the official use of force and mistreatment of individuals. Article 110 penalized an “official or a public employee who orders the torture of an accused in order to compel him into confession.” The punishment prescribed was hard labor or three to ten years of imprisonment. If the torture resulted in death, the accused would be punished as if he had committed murder. Additional articles in the same section penalized officials who used force against individuals, with a maximum punishment of one year of imprisonment or twenty pounds. The Penal Code and its regulations aside, the archives reveal cases in which officials were not always criminalized for actions that resulted in violence. For example, the Cairo court decided that the presence of the official or his approval of an act of torture did not satisfy the requirements of Article 110, which spoke of “ordering” torture.127 There were other cases, however, in which the courts insisted that the rule of law dictated that state officials could not use violence against peasants, particularly in the collection of taxes and in the investigation of criminal activities.128 236

red zones

There is evidence of the prosecution of ‘umdas, known at the time as the most abusive of local state officials, for murder.129 Peasants, in legal doctrine and as a general rule, were to be protected against the abuses of officials. Some instances of killing peasants resulted in punishment or at least investigation. Officials’ use of the whip was prohibited and punished. It follows that the use of violence by the officials of state law invited law’s evaluation. The law also supervised state officials who worked on khedival estates that had not yet been sold to private owners. These estates were put under the management of the Ministry of the Da’ira Saniyya until their sale. The ministry’s disciplinary committee issued hundreds of decisions that reveal that officials working on these estates were subject to the supervision of state law. The practices that the disciplinary committee found to merit punishment consisted, for the most part, in deserting service, misbehaving with other employees, and negligence in performing one’s duties, such as inspecting lands, collecting rent, confiscating and selling produce for failure to pay rent, failure to verify whether or not a leaser of land was indebted to the Da’ira Saniyya, appointing to the estates shaykhs indebted to the Da’ira Saniyya, and failure to report violations on the part of cultivators. Disciplinary punishments ranged from full suspension or temporary suspension with no wages to deductions in salary and demotions in rank.130 Unlike the violence of state officials, which was legally evaluated, the violence of the numerous sovereigns of the colonial estates was not. The rule of law protected peasants and estate officials against the violence of other peasants, for this violence was understood to be unproductive, not useful. The state interfered mainly to locate “notorious criminals,” who were viewed as disrupting security and therefore productivity. It also entered the estates in cases of murder. The violence that threatened the law was therefore very specific. In the zones of sovereignty, it was confined to certain unproductive deadly events and excluded other, productive violent processes, such as the violent management of labor. These violent processes of labor exploitation and labor management were structural, spatial, and slow. They facilitated economic productivity; they constituted the slow death of labor exploitation, not the immediate death of intentional murder. In relation to the estates, the legal evaluation of the violent management of labor was nowhere to be found. Chapter 3 revealed the collapse 237

pow ers

of the ends into the means, while suggesting that the violence of the law was not only instrumental but arbitrary. Similarly, the realized exteriority of the estates’ violent management of labor is also a technology of deregulation and arbitrariness. Many instances of the distinction between state and nonstate actors, which is also a distinction within violence, are generative of this arbitrariness. A comparison with the precolonial regime of sovereignty should help to shed light on distinctions within violence other than private and public. When Khedive Isma‘il was the sovereign deciding on the formation of the estates and their allocation, he also intervened, in his capacity as the sovereign, in the actual management of the estates. He personally ordered inspectors to go to the estates and make sure that both the inhabitants and the management of the estates were following “principles of justice.” These principles of justice were not specified; in one khedival decree, for example, he ordered an inspector, ‘Umar Pasha, to visit some of his estates and make sure that justice was being practiced on them. In the case of violations, he added, an investigation should take place immediately in order to hold the liable officials responsible.131 Khedive Isma‘il also intervened in the management of the property that he allocated to his officials. When, for example, ‘Abd al-Halim, an official who held a high-ranking position in the khedival state, was found to be oppressive, Khedive Isma‘il wrote to him informing him of his intention to take back the lands he had given to him and transfer them to the general provincial administration. Khedive Isma‘il explained that he had received many complaints from the inhabitants against ‘Abd al-Halim’s abusive actions and that all previous warnings had failed to discipline him.132 These khedival orders do not prove that the khedival state was more just than the colonial state, but they do point to a different practice of justice. Under the khedival state, justice was a principle also applicable to the estates, even though it may be argued that it was not consistently implemented. The sovereign could enter his spaces of sovereignty at any moment and impose his command. Under the rule-of-law regime, private estates were exteriorized. Whereas in the khedival state the estates and the state were fused in the figure of the khedive, in the colonial state the estates began to appear in opposition to the state, as outside of it. 238

red zones

The meanings of juridical humanity must shift with this account of the law, which in colonial Egypt claimed to give birth to the human. The historical fate of the estates in colonial Egypt reveals a law that can no longer be understood as singular, abstract, ideal, or general. We are also in the presence of a law that was constituted by the multiple legalities of the violent management of labor, a law that exteriorized them outside of its regulatory powers and concept. If all this was true of the law, then the juridical humanity to which the law claimed to have given birth was similarly constituted. It now appears as a site of the production of suffering, not of the eradication of suffering. The juridical human, perhaps like other humans, was constituted by a legal order that included its own constellations of violence. Yet one should ask about the fate of ideals of humanity, what they come to signify in relation to violence, and whether or not they had a role to play in the constitution of the juridical human. Just as the estates were not outside state law, so violence and ideals of humanity intersected within the law and together engendered juridical humanity. And these ideals, as will be shown in the next chapter, were also constitutive of law’s plural facts of violence.

239

chapter 6

Crisis

[‘Urabi] should not be delivered to the vengeance of the Egyptian authorities without a guarantee that he would not be executed except after conviction on a fair trial of crimes, which, according to the practice of the civilized nations, call for the extreme penalty of the law. If it should appear on the trial that [‘Urabi] could not be charged with any other crimes than those of treason and rebellion, Her Majesty’s Government were disposed to recommend to the Khedive to adopt the more humane practice of modern times and to exercise his prerogative of mercy in favour of the prisoners, in which course Her Majesty’s Government felt confident that they would be supported by the general voice of Europe. But if the evidence should inculpate [‘Urabi] in such crimes as murder, pillage, incendiarism, and the like, which were committed before and during the hostilities, and as to which no political motives could be pleaded in extenuation, Her Majesty’s Government would not be prepared to intercede on his behalf. e a r l g r a n v i l l e t o t h e e a r l o f d u f f e r i n , December 13, 1882

n a m e d a f t e r i t s l e a d e r , the ‘Urabi Revolution included Egyp-

tians from different walks of life who rebelled against Khedive Tawfiq, his rule, and the European interests he served.1 Fearing that the rebels would dispose of the khedive, who secured Britain’s interests in Egypt, Britain occupied Egypt, declaring that its objective was to restore law and order. The fate of the detained leader would soon become the subject of controversy in both Britain and Egypt. Should ‘Urabi be executed, or should he be exiled? And if he was executed or exiled, what legal process could establish either punishment as humane? These questions guided the correspondence in the above epigraph between Earl Granville, the British foreign secretary of state, and the Earl of Dufferin, who was opposed to the execution of ‘Urabi, worrying that it would not serve Britain. Depending on his classification as either a political or a criminal prisoner, 241

pow ers

‘Urabi’s punishment would be either execution—physical killing—or exile—civic/political killing. Regardless of the outcome, this rationalized classification served to further the evolutionary distinction, discussed in chapter 5, between the colonial legal process of the rule of law and the arbitrariness of vengeance.2 Meanwhile, however, and as evident in the legal history to which this correspondence belongs, the colonial legal process had to unleash legalities that were admittedly in factual excess of the general ideals of the juridical order: military tribunals, special commissions, and martial law. From a colonial perspective, these legalities were a necessary strategy in the battle against resistance to the colonial state, threatening it with competing formations of sovereign violence. In addition to rebellion, addressed in the correspondence above, banditry and other formations of political struggle, some of which were violent, threatened to imperil the sovereignty of the colonial state and on some occasions to posit new sovereign alternatives. Unlike the cotton estates, these acts of nonstate sovereignty clashed with the colonial state. What was it about colonial law that enabled it to make itself the launching ground of the human, while activating what it defined as exceptional legalities against the colonized? Was this double move possible without creating colonial law’s own crisis?3 Would such a crisis be destructive of the law, or would it be constitutive of the law, juridical humanity, and hence also colonization? And finally, how was the law’s violence distinct from the unsanctioned violence of the colonized that the colonial state marked as inhuman? To answer these questions, this chapter follows some controversies in the British colonial archive over the application of a number of legalities that the colonial state construed as exceptional. Their deployment aimed to suppress and to punish political struggle, rebellious activity, and banditry—all practices to some degree in competition with or in opposition to the colonial state. One way to examine these exceptional measures is to point to how they violated the general juridical order and led to the exclusion of Egyptians from it, as well as to how the abandonment of Egyptians outside the pale of the law resulted in their dehumanization. But to proceed this way is to accept presuppositions about the fixity of the general juridical order, the protectiveness of the rule of law, and the dehumanizing 242

crisis

powers of colonialism and institutions of the exception. The rise of juridical humanity, as detailed thus far, questions these presuppositions. This chapter therefore inquires into what these legalities reveal about the operations of modern colonial law, not how they violated it, and how these operations suggest additional dimensions of juridical humanity. Briefly, my first argument is that the existence, proliferation, and operations of exceptional measures paradoxically reveal that colonial law had to consist of something other than exceptional factuality, that is, ideals of humanity— for how else would a factual exception be defined as such? Colonial law, to draw on Roscoe Pound’s description of the law, consisted of “an ideal element.”4 This element existed in a constitutive relationship with exceptional legalities. Ideals of humanity accompanied what colonial officials identified as exceptional measures, thereby illuminating modern colonial law as a hybrid of facts and ideals. Second, law’s violence and exceptions came to be relegated to factuality and humanity to ideality.5 Both the law and the world were purified from their condition of hybridity and were split along these lines, thereby engendering a contradictory formation. The chapter follows the course of historical events that contributed to the making, collapse, and recovery of this distinction, or the splitting of the world, facilitated by the splitting of the law. Different historical periods within the colonial era and their respective legal orders emerge as productive of particular relationships between law’s idealized humanity and factualized violent measures. The splitting of the law was parallel to a corresponding split between the British normative legal gaze and Egyptian factual operations of the law. British legal action inhabited the realized world of ideals, claimed the sphere of guidance, and positioned Egyptians under the colonial normative gaze. Crucially, the idealized stance (a technique of purification) enabled the British to turn law’s ideals of humanity into violent weapons aimed at protecting their very purified ideals (a new technique of hybridization).6 The resort to exceptional measures enabled, in turn, purified ideals of humanity. Third, these two techniques combined reveal that the split world was at once a technology of colonial rule and the grounds for its ongoing state of crisis. Where the split world was impossible to maintain, this impos243

pow ers

sibility, or crisis, was an occasion for further purification. The more the effort was made to distinguish ideals of humanity and facts of violence, the less the distinction held, leading to more attempts to maintain it. Crucially, then, the distinctiveness of the law’s violence rested in the idealized humanity that colonial law kept trying to distinguish from excessive violence. Colonial law obsessively attempted to demarcate ideals from facts while constantly hybridizing them, engendering in the process more spaces for colonial rule. In this process of splitting the law, ideals, not violence, emerged stronger. When ideals waged their own violence, it was their violence, not their characteristic ideality, that was targeted for critique. Ideals of humanity only triumphed; the split world prevailed. Finally, this splitting of the law and the world had consequences for the juridical human. An animation of the law’s performances, juridical humanity was constituted in the battle against competing sovereign formations, therefore intensifying the bond with the modern state and its law. Like the grounds of its birth, juridical humanity was also a hybrid of facts and norms, always made to split itself by purifying its excessive violence from its ideals and hence always in a struggle against violence in the name of its ideals. Juridical humanity, then, was an institution that engendered its own colonization: a struggle against its own violence and against the violence of competing sovereign formations. regime cha nge In addition to debating the fate of ‘Urabi, one of the first tasks the British assigned themselves following their occupation of Egypt was to monitor the trials of all the rebels who took part in the revolution. The trials of the rebels were conducted upon the conclusion of the war. True to their mission of restoring the khedive’s authority, the occupying authorities left it to him to issue a special decree ordering the prosecution of the rebels in a court-martial. As discussed in chapter 2, British colonial officers assigned themselves the following undertakings: the implementation of the universal normative principles of the rule of law, the imposition of humane sentences, and the humane treatment of prisoners. This division of labor assigned the Egyptian government and the khedive the role of executors and the British forces of occupation that of monitors/advisors. The former prosecuted the 244

crisis

rebels for attempting a takeover of the khedival state; the latter, who had militarily suppressed this takeover, ensured that ‘Urabi’s trial was carried out according to the principles of the rule of law and humanity. The former acted; the latter guaranteed the purified ideal quality of the act. This division of labor was formative of the colonial state. The British “subcontracted,” as it were, the work of government to Egyptians, confining themselves to the role of observers, monitors, and inspectors. This was especially the case during the first years of the occupation, when it was unclear how long the occupation would last. From the very beginning of the occupation, the British authorities took an interest in the affairs of the judiciary and particularly in the criminal justice system. As early as 1883, they desired to see a British procurer-general in the Ministry of Justice to assist in organizing the national courts, in which capacity “he would be in a position to regulate everything.”7 A division was created between the realm of governmental practice and the world of governmental advice, that is, between the facts of the law and its guiding ideals. Yet these ideals were also to be imposed. Was it possible for the colonial authorities to remain untainted by the trial of ‘Urabi in a court-martial? How was their advice to be worked into the actions of Egyptians, who, according to the colonial authorities, were predisposed to vengeance? Rules of procedure provided for this mediation; by their nature, they consisted in norms to guide the practice of trial. British officials argued that Egyptian procedure, if strictly adhered to, would not allow for publicity or defense by counsel, “two conditions of fair trial which Her Majesty’s Government considered indispensable.”8 Without these procedural guarantees, they alleged, it would have been impossible for them to decide whether ‘Urabi was a political or a criminal convict, and without this knowledge, they could not intercede on his behalf. Therefore, they restricted their intervention to ensuring a “fair trial, and that no improper or unjust restrictions would be placed on the defence.” Lieutenant-Colonel Charles Wilson, the British consul-general for Anatolia, was the designated official who attended the proceedings of the court-martial in order to observe and assure fair conduct. He first attended the hearings of the commissions that were gathering evidence in preparation for the trial, and not knowing Arabic, he was assigned a translator, a Mr. Beaman.9 Wilson 245

pow ers

found that the Egyptian authorities failed to abide by the norms of fairness and justice. Reporting on the evidence that the commission collected in its examination of prisoners and witnesses, he wrote: The evidence, especially, with regard to the abuse of the white flag and the burning of Alexandria, was in many important points conflicting and contradictory, and much of it was hearsay evidence, which would not be accepted in an English Court. No evidence was taken on oath, and there was no cross-examination of witnesses. . . . Some of the written statements handed to the Commission were so nearly alike as to lead to the belief that they had been copied from a model document, or that there had been collusion between the writers. . . . A great number of written statements were accepted as evidence by the Commission without question. The writers, in many cases, never appeared before the Commission, and no steps were taken to elicit further information or to clear up doubtful points. . . . The prisoners, while under interrogation, were at first treated with consideration, but gradually as it became evident that they would not commit themselves, they were pressed in a way quite contrary to all ideas of justice and fairness. . . . The most important prisoners were kept in strict solitary confinement for nearly two months. . . . On the 5th of October, and again on the 7th, they were visited, insulted, and roughly treated by canvasses and others from the Palace; and . . . in some cases they were not allowed to have proper sleep by the sentries, who continually roused them by knocking on the doors. . . . The President of the court-martial gave evidence against the prisoners he was to try, and . . . a member of the Commission of Inquiry was also a witness for the prosecution.10

The picture was gloomy: Egyptian authorities did not know how to produce good evidence, and they mistreated their prisoners. As for the courtmartial, the British authorities appointed two barristers and one solicitor to secure for ‘Urabi and his associates “a fair, regular, and open trial.”11 Prior to the commencement of the court-martial hearings, the Egyptian government’s advocate-general and the counsel for ‘Urabi’s defense came to an agreement on the procedure to be adopted during the hearings.12 Meanwhile, the result of the first part of the inquiry was that the evidence did not establish any of the charges brought against ‘Urabi except for that of rebellion. While arrangements were being made for proceeding with the second part of the inquiry, ‘Urabi pleaded guilty to the charge of rebellion, 246

crisis

and, because the other charges were unsubstantiated, he was only charged with rebellion. The khedive exercised his prerogative of mercy and commuted ‘Urabi’s sentence from capital punishment to degradation of rank, confiscation of property, and exile. Lord Dufferin commended the khedive for his moderation despite the fact that the rebels had threatened him and his family in their attempt to overtake the khedival state. He also praised him for resisting the common oriental despotic temper: When we consider what is the usual temper of despotic Rulers in the East under such circumstances and the firm belief natural to a person in the Khedive’s position, that the authority of Government can only be maintained by the exhibition of force, and the application of the severest penalties to those who revolt against it, His Highness is entitled to great credit for the moderation of his attitude.13

Dufferin did not consider that like him, the khedive was acting strategically. The khedive must have thought that it would undermine his authority to execute a widely popular figure such as ‘Urabi. In contrast to this pragmatic explanation, Dufferin depicted the khedive as resisting his natural inclination toward unjust and inhumane behavior. His position, together with his oriental temperament, in Dufferin’s view, predisposed him not to commute capital punishment, and his temperament was reinforced by an Eastern legal culture that legitimized his inhumane actions. The British placed themselves in the comfortable role of humane advisors. ‘Urabi and his associates were transferred to the barrack-square of Qasr al-Nil. The decree of degradation was read to them in the presence of a few hundred Egyptian troops and a number of scattered spectators. Meanwhile, some Europeans residing in Egypt, mainly in Alexandria, expressed their dissatisfaction with the decision to commute the sentence of capital punishment. They argued that a considerable interval should have elapsed between the court’s sentence and the issue of the decree commuting it to perpetual exile.14 The Ottoman penal code, however, did not require such a deferral; it required instead that every sentence pronounced by a court-martial must first be submitted for the approval of the head of state—in this case the khedive. The court met at nine o’clock in the morning, and its members adjourned for the purpose of submitting their judgment to the khedive, who had exercised his prerogative and commuted the 247

pow ers

capital punishment to lifelong exile. The modified sentence was embodied in a decree. The court reassembled at three o’clock in the afternoon and promulgated the sentence from the bench, as required under the code. The British authorities dismissed the criticism and welcomed the immediate commutation of the sentence. Unlike other aspects of Egyptian legal procedure, which they disparaged, this part of the Ottoman code furthered their objectives. It was fortunate, the British authorities argued, that Ottoman procedure rendered this immediate commutation necessary: if news of the capital sentence had reached London, energetic demonstrations might have been organized in ‘Urabi’s favor. Like the khedive, the British had political concerns and popular reaction in mind; if the Egyptian government’s clemency had come as a reaction to foreign public opinion, it would have appeared subordinate and illegitimate. As it stood, the immediate commutation of capital punishment by the khedive restored the image of an autonomous Egyptian government possessing the character of spontaneity. As for the other political prisoners, 157 in number, the punishments were determined as follows: The first group of seven prisoners were exiled for life and their property confiscated. Three additional prisoners were exiled indefinitely. One person was exiled for eight years and another sent to Massowah for twenty years under police surveillance.15 Two were placed under police surveillance for twenty years. Twelve were confined to their villages for five years or less under police surveillance on payment of “caution money” (security-deposit). Thirty-two were confined to their villages under police surveillance, thirty-three were exiled for a period of five years or less, and sixty-five were dismissed from their former posts.16 Dufferin summarized the trials of ‘Urabi and the other rebels by writing to the Foreign Office in London at the end of the first year of occupation: “The debris of the late rebellion have been thus got rid of, and the state cleared for reconstruction.”17 Indeed, on January 1, 1883, the khedive issued a general amnesty to those who might have been implicated in the recent rebellion and who had eluded previous decrees.18 History recorded the khedive and his Egyptian government as the authors and executors of the ‘Urabi trial; the British were noted as holding a normative advisory role. The ‘Urabi trial was an instance of the division of labor, in which the 248

crisis

world and legal action were split between advisors and executors, between norms and facts, between ideals of humanity and exceptional martial legalities. And yet the idealized sides of the split all operated through the material actions of distancing, inspecting, observing, and advising, while contributing to factual legalities. Meanwhile, the British could claim, and some historians of Egypt would repeat, that the British did not colonize Egypt because they did not engage in its direct rule. exile a nd prison What made exile a humane punishment? The conditions of ‘Urabi’s exile, to Ceylon, together with the other six rebel leaders, proved most controversial. Dufferin explained that his advice to the Egyptian government was to accord the prisoners “as much indulgence as the requirements of humanity might fairly demand and carefully to abstain from inflicting upon them any petty or personal annoyances.” On the other hand, he insisted that these persons were by their own admission guilty of crimes that, according to the laws of their country, warranted death. Furthermore, the exile to which the capital punishment was commuted was penal in character; the exiled should not expect to be transported to their destinations “as if they were starting on a pleasure excursion.”19 The British authorities, the Egyptian government, and Messrs. Broadly and Napier, representing the exiled rebels, reached an agreement that certain basic needs of the exiled were to be met. The ship was to be provided with a doctor, a stewardess, and an adequate number of stewards and attendants. The diet on board was to be similar to first- and second-class fare on passenger ships. Due attention was to be paid to sanitation. Each prisoner was to be provided with a small sum of money in anticipation of his allowance and in order to meet his initial expenses upon reaching his destination.20 The exiled were allowed to take some of their siblings with them in addition to servants. The prisoners, on their side, wanted more than to have their basic needs met and sent a list of some 130 persons whom they wished to accompany them, “including a large number of female relations, female dependants, and eunuchs, as well as butlers, valets and cooks.” Dufferin considered these demands excessive. He agreed that they could take their immediate relatives with them, including their wives, sisters, and children. 249

pow ers

As for domestic help, one servant for each of the men, one maid for their respective wives, and a nurse for the children were allowed. The prisoners could take additional servants or relations with them, but those needed to proceed on their own.21 Sharif Pasha, the Egyptian prime minister, issued the following decree: The prisoners are authorized to take with them, independently of their wives and children, one man servant; one female servant, if there are any other ladies; a maid or nurse, if there are young children. They may take some furniture and bedding. They shall not be searched or deprived of whatever they may have upon their persons. During their stay in Egypt the police shall not enter their houses; they will confine themselves to placing a guard at the doors to prevent the houses from being plundered of what they contain.22

By not depriving them of their physical and immediate family needs, the humane punishment of exile manifested care for the men’s lives. Exile was the ultimate humane treatment precisely because the humane, as chapter 3 has argued, was confined to the care for biological life. The prohibition on participating in political life did not negate the punishment’s humaneness. On the contrary, and as I shall argue in the conclusion to this chapter, exile was one institution of juridical humanity. Moreover, expulsion from the political community was deemed preferable to execution or imprisonment. The latter would have permanently imprinted the rebels on Egyptian political life, as either heroes or victims. Exile, carried out humanely, erased them from political life. Years later, the exiled men came back to haunt the Egyptian government and the British authorities. Their requests to return to mainland Egypt shed additional light on the objective of exile and the manner in which it was deemed humane. In 1890 the seven exiled men submitted a memorial to the Marquis of Salisbury, requesting to return to Egypt. Their health had suffered severely from the dampness of Ceylon’s climate and they were prepared to “pledge their honour to abstain from taking any part in public affairs.”23 Convinced that they would threaten his authority, the khedive opposed their return.24 Cromer likewise opposed their return to Egypt.25 Medical examinations were ordered to determine whether or not their health required transfer to another, more favorable climate. It 250

crisis

was determined that Ceylon’s climate had no injurious effect on the men’s health beyond occasional attacks of fever, rheumatic and neuralgic pains, indigestion, and dysentery in one instance only, afflictions common at their age in any Eastern country.26 The exiles stayed in Ceylon.27 In 1897 three of the exiled men submitted another memorial to Cromer requesting that they be allowed to reside in Cyprus.28 Convinced that their real objective was to return to Egypt, Cromer opposed their request; Egyptian ministers, he added, were averse to their return.29 In their petition, the exiled men wrote that, “during the last fourteen years and a-half the memorialists have carefully and conscientiously abstained from discussing or taking part in any political question affecting Ceylon, Egypt, or Europe, and have rigidly adhered to the promise which they made not [to] interfere in politics.”30 In another memorial to Queen Victoria, the exiled men explained that their wish to reside in Cyprus was based on their desire to be as close as possible to Egypt and to their families, knowing that they could not ask to return there. The men pledged again that if they were allowed to live in Cyprus, they would keep their word and abstain from all interference in political questions.31 But the proximity of Cyprus to Egypt, which would have enabled family connections to be maintained, would also have enabled a similar maintenance of political connections, and since such connections were to be strictly avoided, their request was rejected. The ideals of humanity that the British safeguarded, then, consisted in care for the body accompanied by expulsion from political life. Meanwhile, not all rebels deserved humanized exile: those deemed “criminal” were detained in Egyptian prisons. The khedive’s general amnesty, issued on January 2, 1883, applied to the political prisoners implicated in the rebellion, not to the criminal prisoners. Their criminal status rested on their having been arrested “not on a simple charge of rebellion, but [having been] accused of specific acts of murder, arson, pillage, and theft.” Criminal defendants continued to be prosecuted and tried in the Alexandria court-martial. With regard to these men, British consuls were asked to take note of the khedival orders against the exercise of torture or cruelty toward prisoners and to report any such cases.32 The reports about the prisoners depicted a brutal reality; in response Earl Granville suggested that British officers inspect the prisons from time to time, “in 251

pow ers

order to guard against the practice of any cruelties.”33 Wilson was entrusted to visit the prisons and make inquiries into the truth of the statements of abuse.34 After finding little evidence of abuse, Wilson recommended that the khedive grant amnesty to prisoners except for those who had been convicted of committing crimes, in order to allow the country to stabilize. The khedive, for his part, appointed four commissions to conduct preliminary inquiries into the existing evidence against the prisoners. A khedival decree of September 1882 appointed the Tantah and Alexandria commissions, in addition to the court-martial in Alexandria. Two more commissions, in Damanhour and Mehallet-al-Kabir, were appointed in January 1883. A khedival decree defined the powers and procedures of the commissions. They were to study each case, to consider the evidence for and against the accused, and to decide whether or not the evidence was sufficient to justify the trial of the accused before a court-martial. The Ministry of the Interior prepared lists of people to prosecute in the various provinces. During the first week of its work, one commission examined the cases of forty prisoners. This was deemed too slow and an order was given for the commission to rapidly skim through the remaining charges in order to release at once as many prisoners as possible and defer the oral examination of others. The majority of the charges comprised the following: being present at Tel-al-Kabir or Kafr Dowar or other points occupied by ‘Urabi’s troops; providing material aid to rebels; inciting the populace to rebellion or hostility against Christians; and sealing documents proving complicity with rebels. Of the 162 prisoners whom the commission first examined, 84 were released on bail and 71 were detained for further examination; 45 prisoners were subsequently released. Once again, the British expressed dissatisfaction with the work of the commissions in that they did not maintain adequate legal procedures. No alternative was suggested. The British assistant to the commissions reported that he could detect little effort to differentiate between the significance of the charges brought against most of the prisoners released and the charges against those who remained in prison. There was no cross-examination but, the British assistant qualified, the president of the commissions was just and moderate in his questions.35 By December 11, 1882, 494 prisoners had been freed on bail.36 By the end of April 1883, of the 1,605 originally 252

crisis

imprisoned, 598 had been released on bail, 6 had escaped, the cases of 775 had been dismissed, and those of 226 remained under consideration.37 Dufferin reported his dissatisfaction with the commissions’ operations and the court-martial to London, noting, however, that “no substantial miscarriage of justice has taken place.”38 Though the commissions had British assistants and two European judges, Egyptian authorities continued to be the authors of legally defective actions that failed to adhere to the constituted norm-driven perspective of the colonial authorities. The more despotism was observed and condemned, the more the humanity engendered by the law began to be constituted as a realm of ideals. The observation of violence was productive of an idealized humanity. n ecessa ry t r a nsgr essions 1906 was a dramatic year in Egypt. Fifty-two peasants were tried for attacking members of the army of occupation in a special tribunal, and their sentences were carried out over a period of four days. The tribunal, called for by Cromer, sentenced four peasants to public execution, nine to flogging, two to life imprisonment, and eleven to imprisonment. The year exemplified an extreme collapse of the law’s purified ideals of humanity as understood by all parties at the time: Egyptians and British, authorities and citizens/subjects, organizations and individuals. Most agreed that the sentences delivered by the special tribunal revealed the scandals of British rule by showing that the colonial authorities forcibly violated the recognized norms of humanity and the rule of law. On June 13, 1906, a number of British officers left their camp near Dinshaway, in the Menoufiyya province, to shoot pigeons on the land belonging to some villagers. The site of the hunt was the villagers’ precious cash crop; a peasant warned the officers that the villagers were angry about the pigeon hunting. After firing several shots, an officer accidentally set a field ablaze, at which point some villagers approached him, attempted to seize his gun, and were wounded. Furious, the villagers surrounded the soldiers, wielding sticks, and one officer was hit on the head. Although he managed to break away, he died of sunstroke while running for help. British officers beat another villager to death.39 Several villagers and four other officers were wounded, but they all recovered. 253

pow ers

The British colonial authorities considered the attack on the soldiers deserving of the harshest response. Cromer wrote that it was a pre­ meditated attack against British officers. The fire, according to Cromer, “was probably a preconcerted signal for this attack and the chief cause of the excitement.” The officers, he added, had been defenseless and brutally attacked by a mob of villagers.40 The decision was made to try the villagers in a special tribunal, not the national courts, despite the latter’s being perfectly capable of delivering harsh responses, including capital punishment. Fewer than four years after the occupation of Egypt, Cromer complained about “the delay, which constantly occurs, in the NationalCourts, in dealing with cases in which a native [was] charged with [an] offence against English soldiers.”41 The solution at the time was the institution of a special tribunal to try such offenses, which was sanctioned by a khedival decree of 1895. According to this decree, the special tribunal was composed of the judicial advisor, a British judge of the National Court of Appeal, the judicial advisor to the British forces of occupation in Cairo and Alexandria, and the chief justice of the court of either Alexandria or Cairo. The hearings were public, the arguments only presented orally, and defendants’ lawyers admitted. The tribunal operated in accordance with the Code of Criminal Procedure, so long as it did not result in changing the summary and swift nature of the proceedings, and the Penal Code; the tribunal could punish the offenders as it saw fit. Whereas the national courts continued to exercise jurisdiction over similar cases, the jurisdiction of tribunals was confined to the cases put forward by the British consul-general through the Ministry of Foreign Affairs.42 In the Dinshaway case—a special tribunal convened on June 24, 1906— the list of the accused was shortened from fifty-nine to fifty-two. The chief justice was Butrus Pasha Ghali and the counsel for the prosecution was Ibrahim el-Hilbawi. Four years later, the latter would represent Ibrahim Nasif el-Wardani at his trial for attempting to assassinate Butrus Ghali because of his role as chief justice in the Dinshaway case.43 The advocates for the defendants in the Dinshaway case were also Egyptian. The decision to have an Egyptian prosecutor was based on the necessity for a knowledge of Arabic for the examination of witnesses.44 Of the British judges, 254

crisis

one was fluent in Arabic while the others were “more or less acquainted with the language.”45 Mr. Nolan, a medicolegal expert, testified before the tribunal that the officer had died of sunstroke, yet the villagers were convicted of killing him on the grounds that the attack had been premeditated. No appeal was allowed. The sentences were read out on June 27, three days after the tribunal had convened, and they were carried out a day later in Dinshaway in front of the villagers. Four villagers were publicly hanged; four were sentenced to penal servitude—one to fifteen years of hard labor and six to seven years of hard labor; three received fifty lashes in addition to a year of penal servitude; and five received fifty lashes. The remaining thirty-one defendants were acquitted.46 Summary trial and execution circumscribed the trial in time. The declared purposes of the summary nature of the trial were effectiveness and immediate deterrence. The London Foreign Office’s request for an interval before the sentences were carried out was rejected. An interval would have allowed for reconsideration of the sentences before the executions.47 The British authorities in Egypt responded that delaying the execution would create excitement among Egyptians. Such a delay was also illegal, as the 1895 decree dictated that the execution be immediate: No legal power to interfere with the execution of the decision come to by the Court is possessed either by the Egyptian Government or His Majesty’s Agency. As soon as Lord Cromer applied to the Egyptian Government for convocation of the Court, the matter passed out of our hands.48

The same British official who requested that a special tribunal be convened later wished to distance himself from its rulings and, yet again, to assume the role of advisor rather than executor. The matter, the British authorities argued, was legally no longer in their hands. It was the special tribunal that decided on the matter; the Egyptians were in control of most of the proceedings in the case. A measure of distance was introduced to remove the British from the materiality of the excessive violent legalities in which they were implicated: As the Special Court was convoked . . . the Egyptian authorities under the Ministry of the Interior were charged with the carrying out of its sentences. The neces-

255

pow ers

sary arrangements were made by the [governor] of the Province, who was assisted by the British Inspector of the district. The public hangman performed the executions, the flogging being administered by Egyptians. . . . Order was maintained by the Egyptian police, a detachment of British troops being present to assist them if necessary. Capitan Machell, Advisor to the Ministry of the Interior, was also present at the executions to see that all arrangements were properly carried out.49

In the case of Dinshaway it would be difficult to conclude that the attempts at dividing the world into ideals and facts, the advisor and the executor, were successful. Despite their attempts, the excess of violence in this case destabilized the assumed normative position of the British. Summarizing the Dinshaway affair, Cromer wrote: Although I have never entertained the least doubts as regards both the necessity of taking prompt and effective measures to punish the attack on the British officers, or the justice of the decisions at which the Court appointed to try the prisoners arrived, I do not conceal from myself that the whole episode was calculated to leave an erroneous impression of the spirit in which the government and administration of the country is being conducted. This, of itself, is very much to be regretted.50

The excess of violence could not be humanized, that is, could not be portrayed as instrumental or proportional violence. It was factual, excessive, and bloody and was attributed to the British authorities, despite the executors being Egyptian. But whereas the British failed to assert the position of advisors and guardians of humanity, the Dinshaway affair in and of itself did not succeed in disrupting the purified ideality of modern law and humanity. It did not enable alternative discursive spaces of humanity and the law, avowing the hybridity of both. Rather, ideality continued to be used to criticize the Dinshaway trial, testifying to the power of the contradictory formation. The temporal compression of the trial and its excessive violence resulted in situating the general structure of the judiciary and the purified norms of humanity outside the Dinshaway affair. The legal decision concerning the incident at Dinshaway was uttered and executed no more than fifteen days after its occurrence. This compressed temporality, during which the regular courts continued to operate on a regular timetable (though delayed, 256

crisis

as the colonial authorities would occasionally argue), helped to relocate the Dinshaway trial outside the general legal system and to reproduce a split between the normative and the factual. The legal system remained immune to these summary trials. The special tribunals operated as purifying agents for the institutions of the juridical order. Far from violating the general juridical order, they shielded it. They left the judiciary untainted by the violence they enacted. More than anything, exceptional legalities maintained the power of the general normative order, potentially revealing, for those who succeed in avoiding the seduction of law’s ideality, the hybridity of the law. But the promise of ideality was, and remains, seductive. Purified ideality asserted its power by constituting an instrument of critique—of violence. Liberal-minded British MPs were outraged by the operations of the Dinshaway tribunal and the miscarriages of justice and the rule of law.51 Similarly, when Egyptian nationalists raged against British rule in Egypt, they did not criticize the work of the national courts but confined their attention to special tribunals. Mustafa Kamil, an Egyptian nationalist leader, addressed the English nation through the French press. He, too, reminded the English of their ideals of humanity, which had been violated in the trial of Dinshaway, and of the values of the civilized world. He drew attention to the speed with which the testimonies were given in the tribunal; to the exceptional composition of the court, made up mostly of British officers; to its refusal to consider pardons and appeals; to the forensic medical expert, who pointed to the unjustified severity of the punishment; and to the speed with which the sentences were carried out.52 He wrote: I come today to ask the English nation and the whole world if such an absolute violation of principles of justice and laws of humanity can be tolerated. I ask the English, jealous of the fame and prestige of their country if they mean to enhance the moral and material influence of England by tyranny and barbarity. I ask of those who speak highly of humanity and who fill the world with their indignation at outrages against other peoples that are a thousand times less revolting than that of Dinishwai, to prove their sincerity by protesting vigorously against a monstrous act that is enough to ruin European civilization in the eyes of oriental peoples for all time. Finally, I ask the English nation if it is worthy of it to let its

257

pow ers

representatives, after twenty-four years, resort to exceptional laws and proceedings that are more barbarous to govern Egypt and teach Egyptians than laws of human justice!”53

Doubtless, Kamil strategically crafted his language to convince the English people. It is worthwhile, however, to illuminate the discursive space that was available for making political claims. This discursive space purified the principles of humanity and the rule of law from the bloody practices that had been carried out. In Kamil’s speech, ideals of humanity and the rule of law continued to operate as purified ideals and to establish their authority over local factualized violence, over the law’s facts of violence. Purified ideality triumphed, factual violence was scandalized, and the split world reemerged. But this was still not the end of the story. “Sentences executed. All passed off quietly.” These were the words sent from Egypt to the Foreign Office in London on the day of the Dinshaway convicts’ executions. But was the incident really over? The legal system might have terminated its relationship with the executed by killing them, expelling them and erasing them from its vision. Legally, they had ceased to exist. Still present were the Dinshaway convicts who had been imprisoned. On July 1, 1907, the Dinshaway prisoners submitted a petition asking the khedive to pardon them. The Foreign Office in London refused to take a stance on this matter, leaving it to the Egyptian government to decide. Many MPs in London pressed Edward Grey, secretary of state for foreign affairs, on the matter. One MP asked about the conditions of their penal servitude, their labor, whether or not they were chained, and why they had not been tried under ordinary law.54 In a letter to Grey in October 1907, fifty-three British signatories argued that the Dinshaway trial, which had delivered the sentences of hanging, flogging, and penal servitude for life, was constituted “in a manner altogether repugnant to English practice.” They wrote: [We] are deeply discouraged, as long as the sentences are maintained, in their faith in the impartiality, equity and humanity of the British administration in Egypt. . . . We deeply regret that [the] severest sentences are beyond recall; the hanging and flogging are irrevocable; but we would urge you to remember that every day’s delay creates an impression unfavourable to the Foreign Office and to British Justice in Egypt.55 258

crisis

Another protest came from the political committee of the New Reform Club, which communicated to Grey its opposition to the Dinshaway trial. The club demanded that the Foreign Office issue an official assurance that all prisoners would be released at the first opportunity and that it communicate in a tone more cordial and more sympathetic to liberal sentiment than the one used thus far.56 As a result of the petition of the prisoners and the support they enjoyed in London, the British Foreign Office advised the khedive to issue a clemency decree. Eldon Gorst, the new British consulgeneral to Egypt, asked the khedive to include in his decree a statement that the measure had been adopted with the concurrence of the Briitsh government.57 Thus on January 7, 1908, the khedive issued a decree discharging the Dinshaway prisoners. This helped the British avoid demonstrations in support of their release.58 It also helped them to reclaim the purified world of ideals and resume their opposition to the law’s violence. Ideals of humanity and facts of violence reemerged as separate. Violence did not take over the law and its normative order prevailed. Thus, trying offenses against the army of occupation and against Europeans more generally could continue to be undertaken, as before, in the ordinary national courts. Already in 1885 the Ministry of the Interior had issued a circular indicating to governors that they should quickly arrest and refer to prosecution any native who assaulted a European, even minimally. The circular recognized that Europeans regularly shot game in Egyptians’ fields but requested that peasants ask them nicely to leave. If the Europeans refused, then the natives were instructed to file a complaint with the district council, where legal measures would be taken.59 Further, up until the 1895 decree was passed, the national courts actively tried offenses against the army of occupation. In 1894, for example, a group of Egyptians attacked three sailors of the British Navy. The parquet pressed charges against twenty individuals.60 The attack resulted in injuries requiring ten days of treatment for two sailors and two days for the third. The charges were pressed in accordance with the Penal Code.61 The Court of Appeal convicted the defendants and doubled their sentences, reasoning: “Members of civilized nations cannot enjoy their rights, unless public security prevailed. The elements of public security are not established unless the government can use all sanctioned means to maintain it and strengthen it.”62 259

pow ers

Another incident took place a month after the Dinshaway trial, in July 1906, when three Egyptian men attacked and injured a British ­soldier, Private Thomas O’Brien, while he was passing through the village of Mex on his way to the neighboring musketry camp. According to a report prepared by a Mr. Findlay, O’Brien was riding a donkey and accompanied by a “donkey-boy.” Some men were sitting in front of a café that he walked past. Three of them rose and followed him; they reportedly knocked him off his donkey and turned his pockets inside out but found nothing. They struck him in the mouth, kicked him in the stomach, and then bolted, leaving him lying in the road. Another Egyptian helped him to reach the camp, where he rested. The next day he was sent to the hospital and was found to be suffering from a lesion of the urinary organs resulting from the kick he had received in the stomach. The object of the attack appears to have been theft. Taken alone, Findlay explained, the attack had “no great importance, two of the assailants who have been arrested proving to be bad characters previously convicted of offences against the law.” However, Findlay added, taken “in connection with other attacks on Europeans [the attack] is not devoid of significance.” An ordinary court tried the case, as no need was seen for summoning a special court. Findlay explained that sufficient evidence was produced “to render a conviction practically certain.” Corporal punishment would be most effective and proper in this case, but the court did not have the power to order it.63 Deploying excessive violence through legal channels was not always the preferred solution; solutions and practices that left the split world intact were also often desirable. This split not only helped reassert excessive legalities but, more importantly, the overall juridical order and its ideality. lost in t he di v ision of l a bor Martial law was a subject that the British authorities in Egypt considered throughout the history of the occupation. The question of whether or not to impose martial law generated numerous debates, controversies, and disagreements. Martial law was an instrument for suppressing Egyptians who rebelled against, or attacked, the colonial state and its Egyptian and British actors. But the legality of martial law depended on the legal status 260

crisis

of Britain in Egypt, which changed over the years. The British occupation of Egypt went through three phases: the first fell between 1882 and 1914, during which time the British occupied Egypt but the country continued to be part of the Ottoman Empire; the second was between 1914 and 1922, when Egypt was declared a British protectorate; and the third was between 1922 and 1936, when Egypt gained its official independence but the British occupation of Egypt continued. As the status of the occupiers changed, so, too, did the status of the governors. Each change invited new reflections on the division of labor between governors and advisors, the efficacy of splitting the world and the law, and the impossibility of the split. Occupation Times Until the First World War, the British were internally divided over the policy to be adopted toward offenses against the army of occupation. Against the position of the Foreign Office in London, Cromer advocated the imposition of martial law. The proliferation of excessive legalities threatened a loss of juridical normativity. And yet, the need to maintain a juridical order untainted by exceptional measures was often at variance with the need to assert colonial authority. The controversy surrounding the offenses against the army of occupation in the aftermath of the Dinshaway trial revealed negotiations over the colonial state and colonial law. Still in office in 1906, Cromer argued that exceptional arrangements were necessary for trying offenses against the army of occupation. Certain offenses, if directed against the khedive or the government, could be punished with severity. In contrast, crimes against the army of occupation could only be punished under the Penal Code as offenses against individuals. This, in turn, resulted in less harsh sentences.64 At first, Cromer suggested that special tribunals, like the Dinshaway tribunal, be maintained but that the existing law be modified in certain respects. Deriving valuable lessons from the Dinshaway affair, Cromer added that the tribunals’ sentences should not be carried out before their confirmation by some superior authority. He also added that sanctioned punishments would be those already existing in the Penal Code. Cromer later abandoned this proposal because the higher authority confirming the decisions would be the khedive, not British officials. Furthermore, special tribunals, staffed 261

pow ers

by judges, reinforced the idea that judges in Egypt—whether foreign or Egyptian—were “merely political agents”: [It] is not in the public interest that judges should be exposed to calumnious statements of this description; however little weight they may carry with wellinformed people, it is possible that they may shake the prestige of the judge in the eyes of the credulous and ignorant masses. This, of itself, would be a great evil. I should also observe that it is, to say the least, questionable whether it would be lawful to oblige the judges to serve on the Special Tribunal. . . . I am of the opinion that the proposal to maintain the Special Tribunal, with certain modifications of the existing decree, must be abandoned.65

Cromer appreciated the importance of maintaining the general normative juridical order by not polluting it with political trials. The decree of 1895 failed to maintain such a purified order because it sanctioned commissions staffed by the general judiciary. As Otto Kirchheimer argues, political trials use regular courts to eliminate regimes’ political foes and thus transform the court into a battlefield for political contestation.66 Cromer did not wish this fate for the ordinary courts in Egypt; law and politics needed to be positively separated. His solution was to establish military courts. He recommended that national courts try ordinary cases arising out of purely private quarrels between Egyptians and any members of the army of occupation, whether the latter were in uniform or in plain clothes. Only cases involving acts of hostility against the army or individual members of the army as such should be referred to a military tribunal. Attempting, unsuccessfully, to further define the nature of these offenses, Cromer added: [It] is impossible to foresee the precise nature of all incidents which may bring under consideration the desirability or otherwise [of] the summoning of a Military Court. The examination of such hypothetical cases as occur to me leads me to believe that it would be dangerous to attempt to lay down any rules of an absolute character.67

Cromer also refused to recommend that the power to summon a military tribunal be restricted to cases of attacks against officers or men in uniform, although he admitted that the question of whether or not they were 262

crisis

in uniform would be a very important element to consider when deciding upon the nature of the attack: The soldiers are frequently in the habit of playing cricket or football. When playing these games they are not in uniform; but it would be perfectly well known that they were soldiers, and it is quite conceivable that they would be attacked on that ground. In addition, a matter arising, at the beginning, out of a purely private dispute may, by reason of the circumstances attending the dispute, or the consequences of the dispute, coupled with the general condition of the country at the time of the occurrence take on the character of acts of hostility against members of the Army as such.68

This argument expands the definition of a crime against the army to include almost any act. Unless a truly private quarrel could be proved to have taken place, the assumption would be that soldiers had been attacked because they were members of the army. Unlike the Penal Code’s criminalization of actions taken against state agents in the course of fulfilling their duties, attacks against members of the army did not require such a condition. The army’s duty was its mere presence; thus, any action questioning the presence of a soldier would be considered a crime against the army of occupation. The proposal also stipulated that the general officer in command, with the consent of the British diplomatic agent, would have the power to establish a military court. The court would be bound by no system of law other than that recognized by martial law, defined by the Duke of Wellington as “the will of the officer in command.” Courts would have the power to inflict any penalty, and their procedure would be “such as would be laid down by the General Officer in Command.”69 The result of the establishment of these military courts would be that the civil population would be perpetually liable to the application of martial law. The proposal’s strength, from a colonial perspective, lay in its maintenance of the normativity of the national courts by relegating cases requiring excessive measures to another system, one not bound by the normative sphere of the rule of law. In this way, the ideal element of the law could be maintained. The decisions delivered would be purely factual, in that military courts would solely take into account the facts of the matter. However, 263

pow ers

what this proposal threatened was the division of labor between British authorities and the Egyptian government. If it was accepted, the British would have to explicitly and directly administer a system of law/fact, thereby departing from the idealized sphere they had assumed. This would also bring them into a closer relationship with the factual world of law, a world from which they wished to continue to claim a distance.70 Paradoxically, purifying the general juridical order and maintaining a split between ideal and fact contaminated the British normative position. Given the controversy, the Foreign Office invited the law officers of the Crown to furnish their opinion on the matter. Their memo suggested that there might be a valid argument for treating the British forces in Egypt as an army of occupation in a foreign country, despite its long duration and the establishment of a civil government.71 They cited the French occupation of the Papal States prior to 1870 as a parallel case. That occupation was assumed to be of a permanent nature, or at least intended to last as long as the general political situation required; but so far as offenses against French soldiers were concerned, no distinction was drawn between their occupation and that of an army in a hostile state. Nevertheless, and despite the similarity to the French case, the law officers cautioned against accepting the proposal: [According] to the acknowledged principles of international law, the British Government is entitled to constitute Military Tribunals to deal with attacks or offences affecting the safety or position of British soldiers in Egypt. Having regard, however, to the undoubtedly permanent character of the British occupation, it is desirable that every practical safeguard should be adopted to prevent such tribunals acting from excess of their jurisdiction. We agree with the opinion of our predecessors that the jurisdiction in question should not be extended to the case of an offence against an individual member of the army which arises merely out of some quarrel and cannot properly be regarded as directed against him in his capacity as a soldier, but we think the distinction cannot be worked in practice except by intrusting some officials with the duty of deciding according to his own discretion whether or not the case is one proper to be tried by the Military Tribunals.

Relying on the law officers’ report, the Foreign Office in London found no legal objection to the establishment of military courts under certain 264

crisis

conditions. However, it remained opposed to the application of martial law in such cases, even with the limitations and restrictions suggested by Cromer, “unless and until it was clearly established that no other measure [could] provide efficiently for the protection of the Army of Occupation in Egypt.”72 So long as Egypt remained in a normal state, it was difficult to justify a system under which the whole civil population would be perpetually liable to the application of martial law. In India, Grey reminded Cromer, civil courts tried offenses against the British troops under the ordinary law of the land. Grey further maintained that the time had come “when an endeavour should be made to try the offences in question by the ordinary Law Courts of the Country.” He then considered cases in which experience might show that the national courts administered justice in so lax a manner that they failed to afford sufficient protection to His Majesty’s troops, or that offenses against the members of the British garrison might increase in number or gravity. It might then, he opined, become necessary to have recourse to more stringent measures or to revert to the system of vesting in the army the right to protect itself. Consequently, and despite Cromer’s proposal, martial law was not established in Egypt. Military courts could have worked to purify the ordinary courts of the political nature of the crimes perpetrated against the army of occupation. These very military courts, however, risked the abolition of the ordinary courts once they included the entire civil population within their jurisdiction. The British would have then become the administrators of justice in Egypt. The split world would have collapsed. Protectorship Times The opposition to martial law did not last for long, and the First World War provided a more legally grounded opportunity for its establishment. Cromer’s proposal, which had been rejected in 1907, was adopted in 1914. On October 29, 1914, the Ottoman Empire entered the First World War on the side of the Central Powers. In response, the British declared martial law on November 2, 1914, and declared Egypt a protectorate on November 3, thereby severing the country from the Ottoman Empire. Britain deposed Khedive ‘Abbas, who had succeeded Khedive Tawfiq upon the latter’s death in 1892, accusing ‘Abbas of harboring pro-German sym265

pow ers

pathies. From now on martial law would be regularly imposed. What is striking is the absence in this period of any discussion about the legitimacy, efficacy, or desirability of martial law. The status of protectorate assigned the British authorities in Egypt a different role; they could intervene with the mechanisms of martial law without risking the loss of the split world, as the latter had already been lost. The world was engaged in a bloody war that would last for four years. Martial law, then, became the mechanism used to deal with political dissent. Military courts tried Egyptians charged with attacking or killing Europeans. The summary nature of these courts was similar to that of the special tribunals, and defendants were often sentenced to capital punishment in the absence of evidence implicating them in the crimes with which they were charged. Such was the case when the military court tried Mohammad Hassan ‘Ali and Ibrahim Isma‘il Nagah el-Tarabishi in 1921 for killing Amadeo Calogero during the Alexandria riots and imposed the death penalty on both defendants. In his report on the case, M. S. Amos, the judicial advisor, found that the evidence against the second accused was weakened by the testimony of three European witnesses who did not identify him as the person who had shot and killed Calogero. Amos further acknowledged that in order to convict the accused of the charge of murder, the court had to discount certain statements made by two of the witnesses for the prosecution. Nonetheless, there was sufficient evidence before the court indicating that the second accused “took a prominent part in the demonstrations, addressing the crowd, firing a pistol, and committing robbery.” These actions, according to Amos, justified the death sentence, despite the fact that the grounds for the punishment were the act of killing.73 The general officer, the commander-in-chief, and the secretary of state for war confirmed the sentences in both instances.74 In another case, that of Muhammad Khalil’s attempt to assassinate the sultan, the counsel for the accused, a Mr. Perrott, challenged the jurisdiction of the court. He argued that, as the accused was a civilian, an ordinary court must try his case, since the state of Egypt did not warrant a courtmartial. The counsel for the prosecution, another Englishman, observed that the Egyptian Penal Code was only applicable to peacetime conditions. The court rejected the arguments of the accused and sentenced him to death.75 266

crisis

The prosecution in ordinary courts of individuals for plotting “conspiracies,” the British argued, did not lead to the punishment of more than one or two persons in any organized conspiracy; the solution, rather, lay in martial law’s enabling the deportation of such individuals. Indeed, in the year 1915, for example, more than fifty “individuals of Turkish and nationalist sympathies” were deported to St. Helena.76 Martial law also facilitated the arrest of Sa‘d Zaghlul, the nationalist leader, and his exile to Malta. Martial law was thus deployed to suppress political dissent and struggle. Meanwhile, the general system of the law also continued to operate in these cases. For example, in 1914 a new decree criminalizing certain acts of assembly was introduced. The 1904 Penal Code already included Articles 84 and 320, which dealt with crimes of robbery by armed groups, violent attacks, and transgression. These articles, however, were found to be too specific in two respects: first, they failed to identify the distinct responsibility of each member of the group for the crimes committed during the gathering; and second, these articles criminalized violent actions only by members of a group of five or more persons who agreed to cause harm. The minister of justice argued that the law and the amendments did not include the act of assembly, which, he explained, could also endanger public safety. Thus the decree introduced the criminalization of a member of an assembly of five or more who, upon a state agent’s request to disperse, refused to do so: “Though this assembly has no criminal intention, its mere existence could threaten public safety, in which case a refusal to obey an official order to disassemble deserves punishment.”77 During this period, ordinary courts continued to operate, and the British intensified their involvement in the business of government. For the most part they did so by means of the mechanisms of martial law, effectively abandoning the purified normative sphere and delving into the factualized legalities. Time of Independence By 1922 Egypt had officially gained its independence, and a pro-British monarchy ruled Egypt. The British reserved four fields of intervention for their discretion: the security of the communications of the British Empire in Egypt; the defense of Egypt against foreign aggression or interference; the protection of foreign interests and of minorities in Egypt; and the final 267

pow ers

status of the Sudan.78 Egyptian martial law succeeded British martial law. The government proclaimed regulations restricting freedom of the press and of public assembly.79 Article 184 was added to the Penal Code, criminalizing strikes in the public service; merely disciplining workers who went on strike was found to be insufficient.80 The year 1924 witnessed heated debates on the question of the fate of offenses committed against British troops who continued to be deployed and the Europeans who lived in Egypt. Viscount Allenby, the British high commissioner in Egypt, proposed the imposition of British martial law, given the threat of riots against the British army. Like Cromer’s proposal, Allenby’s was rejected. Amos observed that by 1924 the British were no longer in control of the machinery of government. While rioting could be put down by the troops, it would be difficult to afford protection to Europeans in the provinces. The weapons available for the checkmating of serious political crime were to Amos’s mind extremely defective. The British seemed to have lost control over the machinery of the criminal justice system and to have become entirely dependent on the national government for the execution of any necessary or desirable measure: A perfectly friendly government, firmly established in office with an assured hold on parliament and public opinion could, subject to reservation, doubtless do all that might be to extirpate terrorism. Such a government could pass any necessary exceptional legislation, if need be modify the constitution, provide secret service money, declare and maintain martial law; and in general do all the acts which have proved necessary in other countries whose institutions are threatened by anarchical conspiracies.81

In the case of Egypt, Amos considered it difficult for any such party to obtain power. The Egyptian government could not obtain the authority to hold suspects permanently under arrest without evidence of a juridical character. The government did not have the power to carry out wholesale searches for arms and bombs and would not dare to act illegally without the necessary powers. Amos thus recommended that in the event of another outrage the Egyptian government should declare martial law; but in such an event it would also have to summon Parliament. Britain, however, could not give the Egyptian government more than a few hours in which to act. 268

crisis

A month later a number of Egyptians were arrested, but evidence against them accumulated very slowly. Allenby warned that it was impossible to renew the period of detention under the law of criminal procedure. There were two alternatives: either the Egyptian government could assume greater powers or the British could use the emergency powers they proposed. If put into force, Egypt’s Law No. 15 State of Siege of 1923 would grant the Egyptian government the necessary powers, but the Egyptian government needed pressure to use it, argued Allenby; and if pressure failed, rearrests needed to be made by the military authority. Though undesirable, this solution was necessary in case of a fresh outrage. Allenby added that he was opposed to martial law: The value of [martial law] . . . for the object in view is not very great. . . . [It] is difficult to get rid of, and has political consequences hard to calculate but certainly very determined. Nor do I like empowering the Military Authority to make arrests and searches, though this is less objectionable than introducing the whole apparatus of Martial Law and may be necessary.82

Allenby proposed to induce the Egyptian government to find justification for keeping these persons under arrest in the usual manner; if this were to fail, then the government was to press them strongly to declare a state of siege (even if only in Cairo); and in the last resort to order re-arrest by the Military Authority, while allowing the Egyptian government to make a formal protest. The judicial advisor, J. H. Percival, was also of the opinion that the proclamation of martial law should only be taken as a last resort, for “not only is it very repugnant to English ideas” but it would also be excessively difficult to put a satisfactory end to it. Percival added: The power to declare martial law and the effect of doing so are very obscure matters, and there are really no authoritative decisions to guide one. . . . There must be a condition precedent, that it is not possible to rely on the civil power to maintain the authority of Government, or on the ordinary Courts to exercise their judicial powers.83

The problem was that Egypt was an independent state. A proclamation of martial law by the general officer commanding the British troops in Egypt was very difficult to justify unless war had been declared between Great 269

pow ers

Britain and Egypt or was absolutely imminent. The acting judicial advisor followed up with another memo on the matter, in which he too expressed the opinion that martial law should not be embarked upon lightly or without regard to the need for its justification. Were martial law to become a necessity, he “should be willing to find the justification in new facts rather than in recognised legal theory, useful though the latter could be if we could invoke it.”84 These debates shed some light on the disagreements among British officials trying to assert a certain position in Egypt, which would enable some forms of intervention without destroying the split world and the ideality of the juridical order. The latter became ever more necessary following the official independence of Egypt. t h e colon i a l stat e In his book The Rule of Law in the Arab World, Nathan Brown argues that British imperial policies did not shape the entire legal system in Egypt. As evidence for his argument he refers to the frustration that British officials constantly voiced with the operation of the national courts in Egypt. Brown echoes the British justification for the promulgation of “exceptional” measures: “It was precisely this feeling that led to the establishment of special courts in politically sensitive cases.”85 The British were “frustrated” with the Egyptian legal system. Brown takes this evidence of frustration to signify a British policy of nonintervention in the general juridical order. He writes: “Some British officials held the new legal system responsible for encouraging crime. Egyptians therefore shaped the operation of both the civil and criminal courts.”86 If the British left traces on the legal system, according to Brown, it was in the realm of martial law, where they tried Egyptians who attacked the forces of occupation. Brown rewrites the split between the fact of the law’s violence and the realm of juridical normativity and ideality. But interestingly, he reverses the identity of the actors charged with the operations of the two sides of the split. He endows British legal action with facticity and Egyptian legal action with ideality, thereby reproducing the distinctions of positive law while reversing them. But this very split, I have been suggesting, is constitutive of the colonial state and is one of its legacies or products. The legal action of both sides was much more hybrid than split, though 270

crisis

it enabled the split. The colonial state in Egypt should therefore be understood as the product of a division of labor between the Egyptian government and the British authorities, a division that is always in a state of crisis and incompleteness. This incompleteness signifies a metamorphosing crisis, not a failure. British reluctance to introduce martial law and British approval and operation of exceptional legalities, as well as Egyptian operations of exceptional and general legalities, are all instances of the same contradictory colonial law that is a hybrid at one moment, a split formation at another, and then a hybrid again. The parties on both sides of this hybridity/purified split undergo similar transformations. Brown’s work then reveals the power of the colonial strategy, as we inherit it in postcolonial times—a strategy that succeeded in releasing ideals from facts and continues to seduce us into desiring more purified ideals. Yet modern law’s colonial career exposes the fact that this split never took place, or, to draw on the work of Bruno Latour, the fact that modern law has never been modern in Egypt; with operations such as martial law that purified the realm of ideality from law’s violent facts, the British continued to operate the law while overseeing it.87 Furthermore, the factualized violence of the law that the English themselves called for and directly operated was possible precisely because the general operation of the law was represented as having been left to Egyptian actors. The supposed failures of the latter to maintain order enabled excessive factual intervention by the British in the form of martial law. Without this division of labor between the British and the Egyptians, martial law and other factual legalities would have been difficult to maintain. Paradoxically, then, the very institution of excessive factual legalities did not violate the idealized position of the British but enabled it. It is in this sense, then, that so-called exceptional legalities should be examined less for the exclusion they engender from the general order and more for the idealized element of the law that they strengthen. e xcep t ional m e asur es for m y t hic al cr im es The British strategy of nonintervention-inviting-intervention was never more explicit than in the legal measures introduced to deal with banditry in Egypt. If nationalists threatened the political order of the state, bandits endangered security in rural Egypt, where cotton was being cul271

pow ers

tivated for world markets. Circulars that the Ministry of the Interior forwarded to provincial governors and other local authorities in rural Egypt illuminate the way in which Egyptians with criminal records were scapegoated for the threat to security and capital accumulation. According to a circular issued in 1890, the answer to banditry was that village chiefs, rural police, and the police should pay more attention to railways, prevent actions endangering public security, and refer offenders to the prosecuting authorities.88 Bandits were infamous in Egypt. Newspapers covered their actions, arrests, and trials. They reported on gangs of as few as six to as many as seventy members who raided estates, robbed travelers, and organized local protection rackets.89 Bandits’ actions often generated conflicting accounts. Reports recounted dramatic stories of tracking bandits from one province to another, monitoring the roads and paths leading to the mountains where they often found refuge, chasing them through the mountains, coordinating among the various governors, encircling the bandits from several directions, pursuing them across the banks of the Nile, and opening fire on them. Reports also included accounts of bandits shooting and killing policemen; of bandits miraculously evading capture; of policemen lying in wait for them in hidden places and opening fire on them, killing some and chasing the rest relentlessly for hours.90 The Ministry of the Interior received many secret reports about bandits.91 Reports about bandits used the Arabic words ashqiya’ (bandits) and ‘urban (Bedouin) interchangeably. A provincial governor, reporting on the arrest of some bandits, stated that in his province most of the bandits were ‘urban living on large estates. Some of them were from Upper Egypt and had moved to the delta ostensibly for agricultural work but were in fact engaged in assaults and robbery. The governor therefore collected the names of all foreigners in the province in order to monitor them. He instructed his officials to verify their means of living and their residence among the local inhabitants. If they worked on estates or in factories, then the appropriate inspector would be responsible for any acts endangering public security.92 What is interesting were the debates around the legal measures to be implemented in combating banditry.93 These debates reveal how factual legalities to suppress bandits’ activities were negotiated, 272

crisis

introduced, debated, abolished, and reintroduced in different forms. What emerges is the lack of a fixed distinction between the general normative juridical order and factual legalities, between the normative authority of the law and its social entrenchment. In 1884, a khedival decree established commissions of brigandage (qumisiyunat al-ashqiya’) to combat waves of rural crime.94 They operated in all delta provinces. The Council of Ministers appointed the presidents of the commissions; their members included the chief parquet in the provinces, in addition to two judges appointed by the Council of Ministers. The commissions were sanctioned to investigate crimes within their provincial jurisdictions carried out by armed persons who endangered public security, either by taking life or property. The commissions were entrusted to “reveal the truth,” without notice to the procedures and restrictions established by the Code of Criminal Procedure. Pursuant to this order, cases adjudicated by the criminal courts were referred to the commissions. In 1885 similar commissions were established in Upper Egypt. Commissions would meet as needed in the provinces. Governors often reported on the facts of their meetings and the sentences they issued, which included hard labor and occasionally capital punishment.95 The commissions were appointed with the approval of Britain to expedite the trials of bandits. In practice, the commissions exercised wider jurisdiction, to the detriment of the ordinary courts. All commissions were terminated in 1889, by which time the British government had come to view them as instruments of “illegality and injustice,” arguing that their practices signified that matters of order and justice could no longer be left in Egyptian hands.96 Following the abolition of the commissions, the trials of bandits took place in the ordinary criminal courts.97 Brown argues that the commissions of brigandage were established in an effort to ensure that matters of law and order would stay in Egyptian hands even as the British continued to occupy the country. The commissions constituted an attempt by the Egyptian government to retain control over state building in the first decade of the occupation. The commissions, he adds, represented efforts to challenge British rule.98 For Brown, the main logic explaining all Egyptian legal practice, whether in the form of exceptional commissions or the general judiciary, is the resistance to 273

pow ers

the British and the building of a nation-state. But this logic is contradictory: legal independence is said to resist colonial powers in the case of the general judiciary, and legal exceptionalism is also said to resist colonial power in the case of the bandit commissions. This contradiction does not signal a failure but stems from the method Brown employs: he subjects the examination of the law, regardless of its form, to the political ends it serves. In this way, we gain some very important insights into the political project the law came to serve. But what still eludes us are the power and operations of law itself—the politics internal to law and not merely characteristic of its use. This is not to suggest an absence of conflict between the Egyptian ruling class and the British. Egyptian officials such as Nubar Pasha wished to secure pockets of Egyptian independence. These conflicts contributed to the legal plurality of the colonial state.99 However, these pockets did not always negate colonial governance. The building of an Egyptian state by an Egyptian government did not negate all logics of the colonial state.100 Subcontracting, as it were, the trials of bandits to Egyptian authorities was effective provided that it did not scandalize the British. As long as the commissions’ practices were carried out unnoticed, their work went on without British intervention. But there was always a hidden potential for scandal in the work of the commissions. In 1885 the procurer-general, Raymond West, produced a report revealing the brutality of the commissions’ sentences; his report was ignored. It was not until 1888, when his successor, M. Le Grelle, produced a further critical report that the British voiced their opposition to the commissions. The second report detailed the use of torture, forced confessions, scanty evidence, and the lack of rights for the accused. It was at that point that the British came to view the commissions as shaming their rule; they were then seen as cruel and unjust. Alfred Milner, a British colonial official who served as undersecretary of finance in Egypt from 1889 to 1892, wrote of the commissions: Side by side with the new National Courts, with their model Codes, elaborate procedure and judges who mimicked, even when they did not possess, the character of civilized European magistrates, there was another set of tribunals, far more powerful and important which dealt with crime in a manner worthy of the

274

crisis

Dark Ages. The continuance of such a state of affairs was possible just so long as Great Britain could cling to her attitude of non-interference in the internal administration of Egypt, but no longer.101

The British strategy of maintaining distance from what they defined as a despotic Egyptian government could not be tolerated for long; if it persisted the British would be blamed as advisors who failed to be appalled by Egyptian violence. Le Grelle’s report provided the occasion for British intervention. But as in the case of the Dinshaway trial, the commissions, too, had their remnants in Egyptian prisons, in the bodies of the convicts who in 1900 were still serving their sentences. The British judicial advisor reported that during his inspection of the cases tried by the commissions, he came across one convict who had been sentenced to a life term of hard labor for the theft of two animals. Nevertheless, the report of the judicial advisor gave a balanced perspective on the work of the commissions, which enabled the advisor both to criticize the commissions and at the same time to approve and make use of their work. He explained that many of the bandits had been prosecuted for minor crimes. In many cases, however, the commissions’ members knew of other major crimes these men had committed for which they could not be prosecuted owing to lack of evidence. The balanced perspective of the advisor was contradictory; the commissions did not need solid evidence to prosecute the bandits brought before them, so what was to prevent them from prosecuting on the basis of “major crimes”? As of 1900, the commission had given 106 prisoners custodial sentences. Mr. Morris of the Committee for Judicial Surveillance spent thirteen months examining these cases. He found “some cases” in which there had been a miscarriage of justice. He referred these cases to the khedive and asked him to issue an amnesty. Of the fifty-two cases he had examined by the time the report was issued, twenty-five persons had been released.102 In the following year Morris reviewed the remaining fifty-seven cases and requested khedival amnesty for thirteen of them. Of the remaining prisoners, five passed away in prison, one was released for health-related reasons, and seven were released according to a khedival decree in 1897 (which allowed for the release of convicts who had served three-quarters 275

pow ers

of their sentence). Of the remaining fifty-two still in prison, forty-two were sentenced to hard labor, and no reason was found for their release. They were to be released after serving three-quarters of their sentence or twenty years, in accordance with the 1897 decree.103 The British authorities in Egypt accepted some of the fruits of the commissions’ labor and rejected others. They distanced themselves from the commissions while at the same time checking their actions retrospectively. In 1909 there would be another attempt to introduce exceptional measures for trying bandits. Public security in the provinces surfaced as a problem, signaling the lack of law and order in rural Egypt. It was maintained that crimes or felonies in Egypt reached a low in the year 1899 and that from that date onward, with one slight exception, they had steadily increased. Whereas homicides in 1899 numbered 371 cases, by 1908 the number had risen to 859. Similar increases were recorded for attempted homicide (from 149 to 611 cases), arson (from 95 to 501 cases), and robbery (from 260 to 554 cases). These increases could be attributed to the introduction of a more accurate method of computation, an increase in the population, and strengthened police methods for investigating, reporting, and prosecuting crime. In addition, much of the increase in the numbers of crimes committed resulted from the amended Penal Code of 1904, which introduced new categories of crime. Many of the practices prosecuted before the brigandage commissions were redefined as crimes under the 1904 Penal Code, making it possible to impose harsher punishments and to produce an entirely new category of criminal activity; for example, the 1904 Penal Code added the offense of “theft by habitual offenders,” as well as “destruction of crops.” For both offenses, however, there was an increase in the number of crimes committed between 1904 and 1908.104 Despite the existence of many factors that could have explained the increase in criminal activity, the bandits got the blame. What was most troubling to the judicial advisor was the increase in the number of acquittals on the grounds of insufficient evidence. For example, during 1908, 42.3 percent of cases of homicide were acquitted on such grounds. The law was found to be “slow and uncertain, while private vengeance [was] swift and sure.” The root of all evil was located in Egyptian apathy. It was said that the Egyptian peasants in rural areas had yet to realize that 276

crisis

the old arbitrary system of government had passed. They lacked a public spirit, rendering the task of the authorities arduous.105 The British agent, Eldon Gorst, reported: [The] European judicial system, which has been introduced into this country, depends for its success on the co-operation of law-abiding citizens in the repression of crime. . . . The masses of the population, partly from fear of vengeance if the accused are acquitted, and partly from a hereditary disinclination to be involved in juridical proceedings, even in the comparatively harmless character of the witness, are unwilling to give evidence, especially in cases where well-known dangerous criminals are implicated.”106

Thus, there was an urgent need for new measures to deal with this class of criminals. However, would this not mean recourse to the exceptional measures that the British had rejected some twenty years earlier? No, argued Gorst, the new measure would not result in injustice in individual cases: “All the humanely possible guarantees shall be afforded against the inclusion of innocent people in the category of ‘notoriously dangerous people.’”107 Just as the legal process in 1882 distinguished itself from the vengeance of the Egyptian authorities in relation to the ‘Urabi trial, so too now did the legal process aspire to establish itself as humane. And the same humane punishment—exile—would resurface. Initially, the proposal was to exile all those defined as “notorious criminals” to the Sudan. The proposal came from the Egyptian government and was endorsed by Gorst. The experiment was to be initiated first in the province of Buheira. The proposal, which generated controversy covered by the Egyptian press, was rejected.108 Instead, a new measure was suggested and approved: the Police Supervision Act of July 1909, which empowered the authorities to place dangerous characters under police supervision.109 Many Egyptians criticized the act, but it was approved nevertheless. A. C. Chitty, the British advisor to the Ministry of the Interior, supervised the work of the new commissions, which tried “dangerous characters.” Gorst argued that all measures were being taken in order to prevent abuses.110 Less than two months after the enactment of the Police Supervision Act, Ronald Graham, advisor to the Ministry of the Interior, reported that “the figures for the month of July, although by no means satisfactory, show a 277

pow ers

distinct improvement in some certain provinces . . . and such improvement may, in the opinion of the Prime Minister and the Minister of the Interior, be in large measure ascribed to the effect produced by the promulgation of the new law, and the [governor] of the province, whom I saw, recently, shares this view.”111 In October, Graham again reported that crime statistics for the year 1909 showed an improvement from 1907. He attributed the decrease in crime to the Police Supervision Act.112 In accordance with the new act, the Ministry of the Interior appointed small committees throughout the country to visit each village and draw up lists of the names of persons endangering the community. Each committee was composed of two district ‘umdas, or two notables; they were to be elected by the ‘umdas of each district or by the ‘umda of the village concerned. The committees took six months to complete their labor. The results, including all obtainable evidence, were entered on special forms prepared by the Ministry of the Interior. In addition to British inspectors from the ministry, the provincial governors supervised their work. When the lists were completed, the total number of names amounted to approximately 12,000. These lists were then sent back to the provincial governors, who were to indicate the names of the persons whom they considered to be the most dangerous. The result of this revision was a reduction in the number of names to 1,200. Finally, the British inspectors further assisted the minister of the interior himself to reduce the number of persons on the list to 283. Of these 283, 263 were men without previous convictions. The commissions then commenced their work. The composition of each commission included the provincial governor, the president of the tribunal and the parquet (or in their absence two judges appointed by the Ministry of Justice), and two notables drawn by lot from a list of twelve agreed upon by the Ministry of Justice and the Ministry of the Interior. On August 21, 1909, the first session of the commissions took place in the province of al-Fayyum. Fifteen defendants were brought before the commission. The procedure, one newspaper reported, was as follows. The president of the commission opened the session by stating the commission’s purpose. The first accused appeared before the commission, stated his full name, his place of residence, and the fact that he had no profession. Next, the indictment against the accused was read out. The accused denied the charges against 278

crisis

him. Then came the turn of the first witness, an officer in the province of al-Fayyum. The latter stated various incidents in which the accused was involved. Next was another witness, a lawyer who stated that the accused had asked him for money in exchange for the protection of his property. The third witness was the ‘umda, who testified that the accused had been involved in various criminal activities in his district. A few more local officials testified to the same effect. As for the defendant’s witnesses, the first was his cousin, who testified against him. The second did not arrive; instead he sent a note explaining that he had no information about the accused. The third witness did not appear, and the fourth and fifth witnesses testified that they did not know anything about the accused. The commission decided not to continue with the other witnesses. Finally, they sentenced the accused: he was to be placed under police supervision for five years and was to present security in the amount of E£500 within ten days.113 The first session resulted in the placement of 281 persons under police supervision in their villages for periods not exceeding five years and ­orders that they present security for their good behavior (E£100 to E£1,000). In eleven cases, security was fixed at E£1,000 to E£1,500. One person was put under supervision without security, and another was not tried by the commission because he had already been prosecuted for committing a separate crime. The sittings were public. There were no acquittals. Unlike the previous brigandage commissions, the 1909 Police Supervision Act allowed appeals against the commissions’ decisions. The number of appeals filed was 102, resulting in revisions in 53 cases; some resulted in a reduction in the amount of security deposited or a change in its conditions. The minister of the interior was authorized to decide, upon a request by the accused, whether or not to refer the case to the Appeals Committee, which was composed of the minister of the interior, the president of the Court of Appeal, and the prosecutor-general. This law came to be known as the Administrative Exile Law. Although it did not sanction exile as an immediate punishment, it stipulated that in the absence of a security payment the convict should be exiled. Since the amount of the security deposit was very high, 167 convicted bandits could not raise the security and were consequently exiled to a settlement that was in the process of development. Chitty observed that, while it might 279

pow ers

be surprising that there had been no acquittals, “the final list of persons to be tried was prepared by the Minister and myself, and we were careful to select only cases with which we [were] either personally acquainted or about which, from information in our possession, there could be no possibility of doubt.”114 This experiment in Egypt, which lasted for two years, attracted the attention of other colonies. In September 1909, the governor of Cyprus wrote to the secretary of state for the colonies asking about the Egyptian Police Supervision Act. He was interested in introducing it into Cyprus because “the mass of the population, partly from fear, partly from sympathy and partly from a disinclination to be involved in juridical proceedings, are unwilling to give evidence in cases where notorious criminals are implicated.”115 The governor added that if the measure were introduced into Cyprus, it would be highly beneficial to the people of the island and that the public would thoroughly appreciate it. Writing in November, Chitty emphasized in a report the exceptional nature of these commissions, as compared with the earlier brigandage commissions, which had operated for years. The new commissions were to be of limited duration. He stated that a second session of the commissions would be held toward the end of December or early in January of 1910 and the third session later that year. The number of people to be dealt with in these two sessions would be between six and seven hundred. Thereafter, it would be possible, Chitty concluded, to lay aside the new law and make use of it on exceptional occasions only.116 Exceptions, then, far from violating the general juridical order, rather only reaffirmed it. The brigandage commissions were problematic, from a colonial law perspective, precisely because they were not exceptional. And these measures proved even more exceptional than Chitty had anticipated: the commissions sat in a second session, but the many criticisms leveled at their work rendered a third session more difficult. They were finally abolished. e x il e a nd e x ecu t ion Exile, as shown above, was the solution to a variety of actions that threatened the colonial state, including anticolonial struggle and banditry. Given its centrality to the history of modern colonial law, what does exile reveal 280

crisis

about juridical humanity? Exiled bandits and nationalists became refugees; they were denied access to their political community. In chapter 2 and in my discussion of Hannah Arendt’s reflections on refugees and statelessness, I have argued that the condition of “complete rightlessness,” which Arendt associates with them, does not equate to expulsion from the law. If we view the law as a means of governing the population within its reach, even the human—Arendt’s “rightless” creature—emerges as a subject of modern law. Insofar as exile engendered refugees in the colonial history of Egypt, exile was also a practice constitutive of juridical humanity. For exiling was a legal measure, authored and sanctioned by the law. It was the law, constituted through its own contradictory formation and legal classifications, which expelled rebels and bandits from their political communities and posited this expulsion as humane. And while both the rebels and the bandits were exiled through the deployment of what the colonial state articulated as exceptional measures, the history recounted in this chapter reveals that these exceptional measures engendered not so much abandonment from the juridical order, which never enjoyed fixed boundaries to begin with, but a strengthening of the purified idealized element of the law and hence a strengthening of the general juridical order, as it stretched and constantly exceeded its own empirical ends. What further makes exile a practice of juridical humanity is its pursuit of noncorporal punishment or its legal constitution, as in the case of the rebels, as a humane alternative to execution. Execution, too, was a practice of juridical humanity, a product of its constitutive legal classifications, as opposed to vengeance. As previous chapters have shown, the law authorized different yet similar formations of violence such as torture, vivisection, and bombardment. Exile, thus, was a practice of juridical humanity not because it was less violent but because it represented the purified ideals of humanity, while executions represented juridical humanity’s bloody side. And while both resulted in expulsion from the political community, one by death and one by deportation, together they represented two manifestations of a contradictory formation: a law split into purified facts and ideals, exceptional legalities and humane ones. Read in conjunction with the histories recounted in this chapter, the two sides of the contradictory formation emerge as less oppositional and 281

pow ers

as more constitutive of each other. They were present simultaneously and mobilized in relation to each other. And while they had their origin in the hybridity of the law and the world, they were purified of each other and made to split into a contradictory formation of the law’s facts of violence and the law’s ideals of humanity, corresponding to the colonial division of labor between the Egyptians and the British. In an article discussing Robert Cover’s examination of the violence of the law, Peter Fitzpatrick puts forward an argument partly parallel to the one developed here.117 Cover, Fitzpatrick argues, holds apart the nonviolence of the word and the violence of its execution by defining violence as the painful infliction of physical force. On Fitzpatrick’s reading, however, the judicial word appears “implicated in the very violence it must stand apart from.”118 The very connectedness of violence and nonviolence requires that they also be separate: “the word is neither simply destroyed nor simply conserved but is ever being destroyed and conserved.”119 Similarly, the histories discussed in this chapter reveal idealized humanity and violence to be the product of a juridical operation of separation and connectedness, of idealization and materialization. This ongoing dynamic, including its own circular necessity, impossibility, and crisis, open up political possibilities for colonial rule. The split between the British and the Egyptian authorities was never stable, and the law exhibited violent attacks in the name of its ideals, producing its ideals out of the waging of these attacks. Nevertheless, the contradictory formation of the law remained powerful, as is evident in Mustafa Kamil’s speech. Ideals of humanity continued to be recruited to criticize the violence of the law. Such a critique was made possible by the very positivist split of colonial juridical rule. The critique of the exceptional measures, then, had to claim the very split that enabled them, reproducing its power in the process. Juridical humanity, then, was always situated in the field of death and violence but also, and crucially, in the field of ideality. Together with the production of juridical humanity as a set of purified ideals to guide the lives of Egyptians, numerous violent actions were carried out. Exceptional violent measures were the vehicle for the production of a sphere of idealized juridical humanity; idealized humanity produced its own violence in order to safeguard the authority of its ideals. Juridical humanity, therefore, could 282

crisis

assert its idealized authority only insofar as it engaged in violence, either by distancing itself from it or by employing its own violence. And juridical humanity could assert its violence only by resorting to humanity’s ideals. What is crucial here is not that in both scenarios violence contaminated ideals. For after all, the history recounted in this chapter equally reveals that ideals contaminated violence. More important is how this split posits violence as a possible subject of critique and ideals as a possible instrument of critique. This division corresponds to the critical position the British assumed against Egyptian authorities, to the anticolonial nationalist argument against the British, and to other liberal articulations against the law’s facts of violence. What continues to elude these arguments and articulations is not the extent to which this split, together with its purified ideals, is responsible for violence—for that much may be admitted inasmuch as violence continues to be the subject of critique—but how much this split is constitutive of politics and its possibilities. Consider, for example, this quote from Michel Foucault’s elaboration on the genealogical method: “Humanity does not gradually progress from combat to combat until it arrives at universal reciprocity, where the rule of law finally replaces warfare; humanity installs each of its violences in a system of rules and thus proceeds from domination to domination.”120 This wisdom has proven correct in the colonial history of Egypt. But the critique of progress in this quotation relies on the negative meanings we associate with violence. Humanity, we are told, does not gradually progress—partly because of violence. Violence constitutes humanity; violence is therefore the primary object of critique. The split triumphs. This split, then, its crises and renewed splitting, are constitutive of politics as well as juridical humanity. The split law is introduced into the juridical human, who is now also split between the ideal and the factual, each negating the other and always at risk of mirroring the other. The juridical human must master the distinction between idealized humanity and factualized violence, must try to separate what is always a hybrid. Further, the juridical human must now participate in the struggle against violence in order to claim the grounds of ideality. And since this violence originated in some instances from competing nonstate sovereign formations, such as the rebels, the juridical human, holding on to ideality, must 283

pow ers

fight rebellion, therefore intensifying the system of bondage between state law and the human. It is in this sense that a juridical human may never be an antistate rebel, though the latter may end up becoming the former. While both can locate their humanity in the field of violence, juridical humanity refuses to grant its subjects rebellion against the law at the same time as it nevertheless encourages opposition to competing sovereign formations. If the juridical human is attached to the law through its violence and ideals, the rebel may attempt to break the bond with state law. If the former seeks in the state and its law a refuge for becoming human, a place to inscribe the ideals of humanity, the latter seeks in hybrid humanity—which has always been given—an escape from state law and its splits. The rebel may also find refuge, not in the human that has always been given but in other traditions, other texts, and other powers that rely on, and produce figures, unrelated to the human.

284

Epilogue

c o l o n i a l e g y p t saw the rise of positive state law that itself engen-

dered colonization. This law assumed the authority to endow Egyptians with the status of the human. By inscribing the human in its legalities, the law necessitated its own existence and bonded the human to the modern state. The result was the making of juridical humanity—a technology of colonial rule and a modern relationship of bondage. Inscribed in the text of the law, the juridical human had no place to flee. The threat of dehumanization came into being. Other sites, albeit not universalized during that era, persisted nevertheless. These sites included texts that accompanied the colonial juridical and historicist understandings of humanity, and events that were authored by peasants who resorted to their own laws or by rebels who tried to put forward new laws. This book only gestures toward some of these alternative texts and events. Far from constituting more “progressive” humanisms, they reveal that the human constituted by the law is only one scenario, however universalized. They open up the thinking of the human beyond the juridical. This openness can perhaps also reconfigure the space of politics for competing, conflicting figures of the human, some nonstate figures and some antistate rebels. In this conflicting plurality, the human loses the singularity of juridical humanity, escapes the monopoly that the law came to claim, and emerges open—but not dehumanized. This plurality may in turn call into question the two conventional utopias associated with either the rise of the human or its demise—the post-human—two utopias that have to assume a singular, fixed definition of the human. But what does it mean to say that the human was, as a matter of history, or could be, as a matter of contemporary politics, thought differently? Why insist on alternatives? How does one know that juridical humanity should have alternatives, or what are the grounds that enable such knowledge? I do not ask whether or not the colonial history of Egypt included other 285

epilogue

articulations of the human. As a matter of history, such articulations, as traces recounted in this book suggest, were present. Rather, my question is about the fact of the ongoing search for these other articulations: what triggers such a search and makes it thinkable? As I have already suggested, alternative texts and events have the potential to open up the space of politics to conflicting versions of the human, releasing it from bondage to the law. But this suggestion endows conflicting plurality, as such, with higher normative grounds from which to assess, or critique, the singular universality and homogeneity of juridical humanity. This suggestion, in other words, locates the trigger for such a search in the rejection of singular universality irrespective of its subject—juridical humanity. The question remains, why search for alternatives to juridical humanity? One answer might be that the power that alternative texts exerted and continue to exert incites the search for them. Their persistence is a reminder of other possibilities for the human or for the human’s irrelevance to politics and rule. These alternatives highlight juridical humanity as excluding nonjuridical forms of life, as refusing to register ways in which subjects in this world go about living with or without the thought of being human. In other words, the persistence of the nonjuridical reveals that juridical humanity, however universalized, is not universal and has not achieved its aspirations. Transferring us beyond the naming power of the law, this persistence articulates sensibilities that are different from those of juridical humanity, thereby moving the search in their direction. Crucially, the specific power operations that juridical humanity, as opposed to other concepts of the human, engenders become more explicit. But while the existence of alternatives beyond the naming power of the law trigger the search for these alternatives, this search might also be triggered by juridical humanity itself, and not only insofar as it excludes alternatives. Let me explain. The history recounted in this book, even if it does not presume to be an explicit critique of juridical humanity, may still leave some readers with the sense that something about juridical humanity itself is unsettling. And this sense may incite the search as well. What is unsettling about juridical humanity is clearly not limited to its being a colonial institution or a colonial imposition, for it is possible to recognize the operations of juridical humanity in other spaces and times of liberal 286

epilogue

modernity. So what is it about juridical humanity that makes it so troubling and therefore incites, albeit partially, the search? Let me address these questions by introducing an additional, related puzzle. The juridical human, as the colonial history recounted here shows, was to experience pain in new ways and for new objectives. Pain was put to use and mobilized toward the end of making a human. In the attempt to measure the infliction of pain in accordance to the end of the human, the distinctions within suffering became arbitrary. Appearing in some instances as homologous to nature, and to animals in particular, humans were nevertheless also meant to fight nature and to actively liberate themselves from its forces as well as from the forces of the khedival state. But this liberation was also forced. Freedom was forced. For colonial law, the birth-machine of juridical humanity, unleashed its own violence, its own force, while always demarcating the ideal element of the law from its violence. The law constituted its difference from other types of violence by splitting itself into separate spheres of ideality and factual violence. The former may have justified the latter but was mainly enabled by it. What this history reveals, then, is that the modern colonial law that named the human and claimed to humanize Egyptians centered many of its operations on pain, suffering, and force. A link is revealed between the human and violence across the different relationships constitutive of juridical humanity, including those of nature and history. Encounters between humans and nonhumans rested on the mediation of pain, suffering, force, and battle. The law’s cultivation of human labor in relation to nature revealed the centrality of force, and hence another instantiation of violence, as a mediating element. With colonial conceptions of history too, the juridical human is the figure who embodied the historical overcoming of khedival despotism. This despotism, construed as productive of arbitrary suffering and hence inhumane, was once again a figure of violence. In short, what counted as properly human began to depend on legal criteria of violence that delineated how to classify and distribute it. What does linking the human to distinctions within violence do? While this link is far from obvious, it points to the ways in which violence, in its parts that the law names and declares necessary to eliminate (cruelties) and the others that it names and declares productive (humaneness), was 287

epilogue

critical to the juridical constitution of the human in the colonial history of Egypt. And while this link constituted a historical relationship, we may still ask whether it exceeded the colonial history of juridical humanity. Could it be that violence is a force that informs not only the historical colonial constitution of juridical humanity but also the thought that something is troubling about it? Is what is unsettling about juridical humanity a sense of foreclosure—the sense that there is no escape from violence? And how do we recognize this foreclosure as unsettling? Further, might it be that what is also troubling about juridical humanity is the fact of the persistence of arbitrary violence, of the collapse of ends into means? And if so, once again, why do we recognize the persistence of arbitrary violence as troubling? The sense of foreclosure affirms that there is no escape from violence. Paradoxically, while this sense reveals the impossibility of nonviolence, as well as its implication in violence in sharing a space with it, it may also heighten a desire for nonviolence, which is only now made impossible. Or this may be put slightly differently. That juridical humanity is constituted by threads of violence can lead one to accept it and inquire into the particular operations of this threading: what it enables or disables, and how it shapes politics and ethics as compared to other formations of violence. But the violent threads that constitute juridical humanity can also lead one to be overwhelmed by it and indeed to find it unsettling. Here, nonviolence makes an entry: as that which enables one to be unsettled, precisely because the law has made nonviolence impossible and has therefore heightened the desire for it. If this is the case, then the law itself contributes to the creation of the desire for nonviolence. What is troubling about juridical humanity already belongs to its operations. Similarly, it may be that the grounds for recognizing the persistence of arbitrary violence as troubling are those of juridical humanity—in particular, how it distinguished unproductive cruelty from measured instrumental humane violence. That is to say, the grounds of this recognition are the juridical distinctions within violence. And these distinctions belong, at least partly, to juridical humanity. Modern law decides on violence, establishes possibilities for its classifications, and attempts to activate similar decisions in the configuration of the human. The juridical human, in 288

epilogue

turn, stands for a figure that knows how to make these distinctions, to distinguish the arbitrary, that is, cruelty, from the instrumental, that is, humane violence. And if the impossibility of the distinction between the two is, in part, what is unsettling about juridical humanity, then one must wonder whether we nevertheless remain within the logic of modern law that itself distinguishes between the arbitrary and the instrumental but now reveals all of the law’s violence as arbitrary. What does one hope for next—instrumental violence or nonviolence? Both, as we have seen, are implicated in the production of juridical humanity. Perhaps then what is troubling about juridical humanity is not so much the persistence of arbitrary violence but the fact that this persistence has already been targeted by the work of critiques put forward by juridical humanity and its accompanying constitutive distinctions. This means that juridical humanity is both the subject of critique and the tool of critique. I am not hinting at the multiple possibilities of juridical humanity, that it is open to subversive uses and applications and therefore can destabilize its own authority and that of the law. Rather, my concern is to point to yet another possible domain for the expansion of modern liberal law and juridical humanity. Modern law attempts to encompass all domains of social life and to engender a gapless legal order, while conquering the past and mobilizing its capacities across different geographies. This expansion also claims the human, thereby revealing the most radical aspiration of modern law, in that it both claims the human and articulates a critique of that claim. Juridical humanity simultaneously is a relationship of bondage to the law and includes within it the critique of that bondage. This is perhaps what is most unsettling about the expansion of juridical humanity—that while it performs itself, it also produces its own critique. This is why modern law has become such a powerful technology of government and a tool of emancipatory struggles. Far from being a testament to its flexibility and potentialities, this is a testament to the powers of modern law. It follows that the desire to search for alternatives to juridical humanity may already belong to it—though one would have to add, only partly so. In this sense, this work, notwithstanding its attempt to follow the making of juridical humanity, to theorize it, and to examine its operations, reflects the challenges entailed in moving beyond it. These challenges do 289

epilogue

not belong to subjects who live their entire lives without being trapped, or bothered, by juridical humanity. Those subjects have always been among us and have incited many fruitful inquires into their subject formation. The challenge, rather, belongs to the task of thinking about juridical humanity while abandoning it, as if it never took place, as if its distinctions never proliferated, or as if it did not proliferate itself through these distinctions. Is that possible? And what are the terms and methods of this becoming a possibility? This challenge is at the heart of this book, at the heart of its possibilities and constitutive limitations. This discussion does not resolve the challenge but reflects the conditions under which the book was written and therefore the inquiries it has enabled and foreclosed. Despite the many differences between juridical humanity and contemporary human rights, the link between the human and violence remains evident, and so does the centrality of the human to different formations and practices of politics. This centrality is not only instrumental to politics but is constitutive of it—its vocabulary and critical interventions. And even when one looks for other forms of life in the present to inquire into their ethics and politics in relation to similar questions, the task remains challenging. For it is in relation to the institutions, practices, and sensibilities of liberal modernity—in this case juridical humanity—that the search is conducted. And while perhaps there is no grand heroic intellectual escape, there are more modest attempts to learn from other traditions, to subject liberal modernity to their gaze, and to have them contest the challenges of juridical humanity. What other language or distinctions are available for thinking the violence of the law? Might they be mobilized in reflecting on the work of distinctions that juridical humanity performs? Is it possible to describe and to reflect on juridical humanity’s constitutive link between the human and violence, while at the same time de-linking them? And more generally, how else can one write about juridical humanity while reproducing less of its metanarrative? These are some of the questions that this book leaves for future inquiries. At the turn of the second decade of the twenty-first century, and in an era of revolutionary movements, juridical humanity continues to inform some aspects of the political struggle against the postcolonial Egyptian state. Legal reform, notwithstanding many of the rebels’ sense of its secondary 290

epilogue

importance, has become one significant site for political activity during the post-Mubarak era in Egypt. And yet the revolutionary protests themselves do not abide by juridical humanity. They constitute a state of exception, one that is different from the legalities of exception that the colonial and postcolonial states introduced and that have reinforced the general juridical order and its purified ideality. The state of exception introduced by the revolutionary protests suspends the grounds of legitimacy of both the Egyptian state and its constitution. The protests shatter the continuity of the state security exception that services the legal order. The revolutionary movement then constitutes a critique, a powerful one at that. But of course, the protests are much more than a critique: they affirm a subject who rejects the system of bondage with the state and its law.

291

Reference Matter

Notes

a bbr ev i ations BT Department of Overseas Trade, National Archives, Kew Gardens, London CEDEJ Centre d’Études et de Documentation Économique, Juridique et Sociale, Cairo DWQ Dar al-watha’iq al-qawmiyya [Egyptian National Archives], Cairo FO Foreign Office, National Archives, Kew Gardens, London PRO Public Record Office, National Archives, Kew Gardens, London in t roduc t ion 1.  For a brilliant cultural history of the formation of the Egyptian national subject under colonial modernity, see Jacob, Working Out Egypt. Jacob theorizes the formation of a particular subjectivity that he calls “effendi masculinity.” He also traces this subjectivity as it took hold in different social and cultural realms. My study, by contrast, theorizes a concept that was first and foremost a juridical technology of colonial rule. 2.  For a collection of studies about the fate of the concept of the human, or operations carried out in the name of humanity, in the contemporary moment, see Feldman and Ticktin, eds., In the Name of Humanity. For a theorization of the human as a subject of human rights, see Asad, “Redeeming the Human through Human Rights,” in Formations of the Secular, 127–158. 3. Asad, “From the History of Colonial Anthropology to the Anthropology of Western Hegemony,” 133. 4. Césaire, Discourse on Colonialism. Such is also the reading conventionally offered of Frantz Fanon’s work. Later in the introduction, I offer a different take on Fanon. 5. I deploy the term “inhumanity” while drawing on Lyotard’s concept of the in­human and more particularly on Cheah’s development of this term, also in relation to law. See Lyotard, The Inhuman; Cheah, Inhuman Conditions. 6.  For an argument about the lawlessness of the colonies, see Mbembe, “Necropolitics.” Partha Chatterjee’s argument about the rule of colonial difference situates the colony in a relationship of exclusion to Europe; see Chatterjee, The Nation and Its Fragments. See also Gregory, The Colonial Present. It should be noted that in the field of law and society, there has been more sustained attention paid to the juridicality constitutive of colonialism. See, for example, an early review essay, Merry, “Law and Colonialism.” 7.  For a study of race and colonialism that challenges the binary opposition between colonizer and colonized, see Powell, A Different Shade of Colonialism. 8.  For an original study of colonialism that underscores the role of colonial humanism in the case of the French imperial state, see Wilder, The French Imperial Nation-State. 9. Fanon, The Wretched of the Earth, 35. 10. Ibid., 36. 11. Ibid., 37. 12. Ibid., 43. 295

not es to in t roduc t ion a nd ch a p t er 1

13. Ibid. 14. Ibid., 53. 15. Arendt, The Origins of Totalitarianism, 447. 16. Ibid., 451. 17.  See Fahmy, “The Police and the People in Nineteenth Century Egypt”; Fahmy and Peters, “The Legal History of Ottoman Egypt”; and Fahmy, “Justice, Law and Pain in ­Khedival Egypt.” 18. Asad, “Conscripts of Western Civilization”; Asad, Formations of the Secular; Asad, “Thinking about Law, Morality, and Religion in the Story of Egyptian Modernization.” 19. Al-Bishri, Al-Wad‘ al-qanuni bayna a-shari‘a al-islamiyya wal-qanun al-wad‘i, 29. chapter 1 1.  For a discussion of these reforms in the Ottoman context and how they reflected the “étatization” of law, see Zubaida, Law and Power in the Islamic World, 142–157; and Hallaq, Shari‘a. 2. The siyasa majalis, or councils, were juridical-administrative bodies that worked in parallel with shari‘a courts during the second and third quarters of the nineteenth century. A discussion of these councils is included in the second part of this chapter. 3.  For example, see Brown, “Law and Imperialism,” 103–126; Brown, The Rule of Law in the Arab World; Cannon, Politics of Law and Courts in Nineteenth Century Egypt; Shihata, Tarikh harakat al-tajdid fi al-nuzum al-qanuniyya fi Misr mundhu matla‘ al-qarn al-tasi‘ ‘ashar; and Tollefson, Policing Islam. For a different approach that articulates the coloniality of Egypt and informs my work, see Mitchell, Colonising Egypt; Asad, Formations of the Secular; and Pollard, Nurturing the Nation. 4.  See, for example, the work of Farhat Ziadeh, who articulates the colonial rule of law in terms of the triumph of liberal values: Ziadeh, Lawyers, the Rule of Law, and Liberalism in Modern Egypt. 5.  For an example of such a work, see Salim, Al-Nizam al-qada’i al-misri al-hadith. 6. Ziadeh, Lawyers, the Rule of Law, and Liberalism in Modern Egypt. 7.  See Mamdani, Citizen and Subject; and Chatterjee, The Nation and Its Fragments. 8.  See, for example, Merry, Colonizing Hawaii. 9.  See Tucker, Women in Nineteenth Century Egypt; see also Mani, Contentious Traditions. 10. My use of the term “legal tradition” is meant to distinguish it from “legal system.” Patrick Glenn argues that when law in the nineteenth century came to be understood as comprising static systems that “comparative law sought to group taxonomically into families of law, national laws were incapable, in legal terms, of being influenced, or influencing other national laws.” But it was only when national law came to be thought of as “binding law” that other forms of sovereignty were displaced. In place of the traditional character of the law—a mark of its legitimacy—came its modernity, articulated in the language of formal sources of state law. This does not mean, however, that the traditions of common law were entirely lost. Rather, when confronted with a binding authority they effaced themselves, and they can therefore be reinvigorated. See Glenn, “The National Legal Tradition.” 11. Zaghlul, Al-Muhama. 12.  See, for example, ibid.; see also Fahmy’s comments on Al-Muhama and how it shaped the writing of the legal history of Egypt. Rather than follow Al-Muhama, Fahmy offers a reading of Egypt’s legal history in the first three quarters of the nineteenth century without attaching this history to a story of progress culminating in the 1883 reforms. Fahmy, “The Police and the People in Nineteenth Century Egypt.” Gabriel Baer offers a different reading 296

notes to chapter 1

of legislation in Turkey and Egypt prior to the British occupation. He argues that incompleteness was generally one of the notable characteristics of the Ottoman qanunname. This incompleteness continued to characterize the early Tanzimat, which differed in other respects. See Baer, “The Transition from Traditional to Western Criminal Law in Turkey and Egypt.” See also Baer’s survey of penal legislation in Egypt up until 1883, where he argues that those statutes gradually became more comprehensive: Baer, “Tanzimat in Egypt—The Penal Code.” 13.  See Sarat and Kearns, eds., History, Memory, and the Law. 14. Asad, “Conscripts of Western Civilization.” 15. I take the emphasis on modern destruction from Berman, All That Is Solid Melts into Air. 16. An inquiry into authority, Hussein Agrama argues, should investigate “the multiple temporalities mediated by the inherited traditions that express it, as well as how the constitutive practices of those traditions work to shape the self and its sensibilities.” See Agrama, “Tradition, Authority, Ethics.” 17.  For an interesting account of the meanings of authority in Islamic law and the methodologies guiding the citation and interpretation of foundational texts, see Abou El Fadl, Speaking in God’s Name. 18. The relationship between lawyers and historians took a variety of forms, only one of which is explored here. During the nineteenth century, for example, German historians taught history as members of law schools, where caution and erudition were valued more highly. See Breisach, Historiography. 19. Di-Capua, Gatekeepers of the Arab Past. 20. Darraj, Al-Hadatha al-mutaqahqira, 83–110. 21. I am borrowing a phrase from Carl E. Schorske, who suggests that twentieth-century Americans and Europeans had to think without history, as modernism was detached from the past—in contradistinction to nineteenth-century thinking with history. See Schorske, Thinking with History. 22.  Shmayyil, “Editorial,” Al-Huquq 1, 1886, 1–2. 23.  “Right” does not refer to rights, as in “civil rights” or “human rights,” but to law, as in the French “droit.” 24.  Whether the intelligent power is the rational creation itself or an external power is unclear; Shmayyil, “Editorial,” 2. 25. Ibid., 11. 26. Ibid. 27. Ibn ‘Arabi, Divine Governance of the Human Kingdom. 28.  See chapter 2, where I discuss the writings of an Egyptian Sufi and modernist scholar who explained the similarities and differences between his Sufi view and Darwin’s. 29.  Shmayyil, “Editorial,” 12. 30.  Benjamin, “On the Concept of History,” 390. 31. This argument is parallel to that advanced by David Carr, who argues that the sequence between predecessors and successors “extends beyond the boundaries of my life, both into the past before my birth and into the future after my death.” See Carr, Time, Narrative and History, 113. 32.  Shmayyil, “Editorial,” 1–2. 33. This temporality resembles that attributed by Karl Lowith to “the ancients.” He argues that according to their understanding, history rested on laws and patterns of law and decay: “According to the Greek way of life and the world, everything moves in recurrences, like the eternal recurrence of sunrise and sunset, of summer and winter, of generation and 297

notes to chapter 1

corruption. This view was satisfactory to them because it is a rational and natural understanding of the universe, combining recognition of temporal changes with period regularity, constancy and immutability. The immutable as visible in the fixed orders of the heavenly bodies, had a higher interest and value to them than any progressive and radical change.” See Lowith, Meaning in History, 4. 34.  “On the Science of Right,” Al-Huquq 3, 1888, 321. 35. Ibid., 323. 36. Ibid. 37.  “Lam‘a fi manafi‘ al-qanun wa-madaraho fi al-bilad al-misriyya” [An insight into the benefits and detriments of the law in Egypt], Al-Huquq 2, 1887, 406–407. 38.  Fahmy and Peters, “The Legal History of Ottoman Egypt.” 39.  “Fi al-Huquq,” Al-Huquq 2, 1887, 417. 40. Koselleck, Critique and Crisis, 10. 41. Zaghlul, Al-Muhama, 161. 42. Ibid., 169–170. 43. Ibid., 206–207. 44. Ibid., 213. 45. Ibid., 219. 46. This vocabulary is similar to that used by Max Weber to describe what he called “qadi justice,” that is, the justice of Islamic law. By qadi justice he meant a form of legal practice that is irrational, incapable of being reduced to systematically organized rules. This form of legal practice also characterized common law, which likewise lacked systematizing legal rationality. For a discussion of Weber’s view of common law, see Cotterrell, “Common Law Approaches to the Relationship between Law and Morality.” 47.  Subsequent scholarship adopted Zaghlul’s view that the last quarter of the nineteenth century was when a modern legal system was established in Egypt, manifested in the separation of the judiciary from the administration, the adoption of comprehensive codes, and the abandonment of Islamic and Ottoman models for European ones. For example, Latifa Salim maps out the various attempts at reform made by Mehmed Ali and his successors. In Salim’s analysis, these attempts did not rise to the level of actual reform but remained experiments that prepared the ground for the birth of a legal system in the last quarter of the nineteenth century, with the establishment of the mixed courts and national courts. See Salim, Al-Nizam al-qada’i al-misri al-hadith. See also Shihata, Tarikh harakat al-tajdid; and Ziadeh, Lawyers, the Rule of Law and Liberalism in Modern Egypt. 48.  Whereas most legal historiography of Egypt based itself on texts such as Zaghlul’s, historians have recently started reexamining the history of that previous system in an attempt to understand it on its own terms. Their findings, based on rich sources in the form of court records housed in the Egyptian National Archives, reveal that reforms in the first three quarters of the nineteenth century were local and indigenous. This scholarship asserts that a system of modern law characterized by written codes and central authorities charged with their imposition was present in the early nineteenth century. As Fahmy and Peters argue, legal reform began early in the nineteenth century and consisted in the gradual drafting, amending, and supplementing of a body of secular law, together with the founding of numerous institutions to administer this law. See Fahmy and Peters, “The Legal History of Ottoman Egypt.” 49. This method was somewhat similar to Christopher Columbus Langdell’s case method, which was intended to further the scientific study of the law by having students read only original sources—cases—and draw their own conclusions. Langdell believed that lawyers, like scientists, worked with a deep understanding of a few core theories or principles, and 298

notes to chapter 1

that to attain a scientific understanding, students should read the primary sources—cases— in which these principles were first shaped. In Egypt at around the same time, textbooks, rather than cases, became the main reference for studying legal principles. See Langdell, A Summary of the Law of Contracts. 50.  Fahmy, “The Police and the People in Nineteenth Century Egypt,” 340; Peters, “Islamic and Secular Criminal Law in Nineteenth Century Egypt,” 70; Peters, “Administrators and Magistrates.” 51. Anghie, Imperialism, Sovereignty, and the Making of International Law. 52. Ibid., 52. 53. Ibid., 62. This argument is similar to the one that Peter Fitzpatrick develops more generally about modern law. See Fitzpatrick, The Mythology of Modern Law and Modernism and the Grounds of Law. 54.  Benjamin, “On the Concept of History”; Simay, “Tradition as Injunction.” Also see Elliott Colla’s brilliant study of European and Egyptian interest in ancient Egypt from the nineteenth century until the mid-twentieth century. Colla shows how Egyptian nationalists established their claim, against colonial archaeologists, to the rightful ownership of Egypt by claiming to be the direct heirs of the pharaohs. Colla, Conflicted Antiquities, Egyptology, Egyptomania, Egyptian Modernity. 55.  For an examination of this relationship to the past, see Kornman, “Precedent and Tradition.” 56.  See Lowenthal, The Past Is a Foreign Country. According to Lowenthal, the past is in large measure our own creation, shaped by selective erosion, oblivion, and creative invention. Significantly, the past has become foreign from the present, yet is manipulated by its objectives. 57.  For a review of the establishment of the mixed courts that focuses more specifically on the diplomatic history that brought them into being, see Hoyle, The Mixed Courts of Egypt. Hoyle begins with the premise that the Ottoman Empire was an external occupier of Egypt, which resulted in defects in the legal system. His narrative is one of reform and liberation from the Ottoman capitulations brought about by the inauguration of the new, European-inspired mixed courts. See also Brinton, The Mixed Courts of Egypt. Brinton argues that the real danger of capitulation lay not in the courts themselves but in the overly liberal “usage” of them. “Usage,” Brinton writes, “is the strongest of all sanctions, which the law may acquire in Moslem countries, and usage itself soon became established beyond all danger of attack.” The remedy against usage, according to Brinton, was the introduction of unified codes and mixed courts that would uphold only codified laws. 58.  For a history of the revolution, see Cole, Colonialism and Revolution in the Middle East. 59. Tawfiq to Sharif, August 20, 1882, cited in Cannon, Politics of Law and the Courts in Nineteenth Century Egypt, 147. 60.  “Mudhakkirat Husayn Fakhri Basha nazir al-haqqaniyya li-majlis al-nuzzar” [Memo by Husayn Fakhri, Minister of Justice, to the Council of Ministers],” December 7, 1883, in Al-Kitab al-dhahabi, vol. 1, 107–115, 112. 61. Ibid., 115. 62. Ibid., 113. 63.  See for example, Cannon, Politics of Law. 64. Dufferin’s Report, February 6, 1883, cited in Cannon, Politics of Law, 156. 65. Ibid., 157. 66. Ibid. 299

notes to chapter 1

67. Ibid. Cannon discusses the history of struggle over the Ministry of Justice between the French, the British, and the Egyptians, who occasionally sided with the French in order to prevent further British intervention. 68. Muhammad Labib ‘Atiyya, “Tatawwur qanun al-‘uqubat fi Misr min ‘ahd insha’ al-Mahakim al-Ahliyya” [The Development of the Penal Code in Egypt since the Establishment of the National Courts], in Al-Kitab al-dhahabi, vol. 2, 5–18, 5. 69. Ibid. 70. Ibid., 6. 71. Ibid. 72.  See Article 1 of the 1883 Penal Code. 73. Al-Bishri, Al-Hiwar al-islami al-‘ilmani, 9. 74.  Peters, “Islamic and Secular Criminal Law in Nineteenth Century Egypt.” 75. Brown, The Rule of Law in the Arab World, 44–60. 76.  For a work on constitutive theory, see Brigham, The Constitution of Interests. 77.  For a collection of sociolegal studies that view law as an active agent in the very writing of history, see Sarat and Kearns, eds., History, Memory and the Law. 78.  See Fitzpatrick, The Mythology of Modern Law. 79.  Harrington, “Regulatory Reform,” 293. 80. A considerable amount of scholarship on law and colonialism focuses on the resistance of natives to the colonial project. Such scholarship considers the role played by the colonized in the formation of colonial law. See, for example, Chanock, Law, Custom, and Social Order; see also Kidder, “Toward an Integrated Theory of Imposed Law,” 289; and Merry, “Law and Colonialism,” 879. 81. In Cooper’s analysis, the story is not one of “the steady advance[s] of nation-states against empires.” See Cooper, Colonialism in Question, 231. 82.  For argument on the critical analysis of legal reform, see Harrington, “Delegalization Reform Movements.” 83. I draw here on Pierre Bourdieu’s work on social fields. More specifically, see his “Rethinking the State” and “The Force of Law.” 84.  Sixty-four of the 247 Egyptians who studied in France at their own or the government’s expense were enrolled in legal programs. 85. My argument here departs from conventional scholarship on the legal profession in Egypt, which does not recognize the existence of a legal profession in the pre-reform past but instead argues for its emergence in the late nineteenth century. In contrast, I suggest that the disappearance of the legal profession from the pre-reform past was an accomplishment of the late nineteenth century. 86.  For a discussion of legal training in Egypt, see Cannon, “Social Tensions and the Teaching of European Law in Egypt before 1900.” 87. Zaghlul, Al-Muhama. 88.  Evidence concerning the practice of legal professionals from the old system can also be found in the memoirs of Salib Pasha Sami. See Abu al-Nur, comp., Salib Pasha Sami. 89.  For a history of lawyering in Egypt, see Reid, Lawyers and Politics in the Arab World, 1880–1960. 90. This juridico-political work of the legal profession is to be distinguished from an examination of the political role that the profession played in nationalist politics. See AlTawil, Al-Muhamoon wal-siysa. 91.  For this distinction, see Arendt, On Violence, 43–46. 92. Arendt, Between Past and Future, 95. 300

notes to chapter 1

93. Ibid., 94. 94. Ibid. 95. Ibid., 122. 96. Ibid., 123. 97. This argument would parallel that of Ranajit Guha, articulated in Marxist terms, mainly, that colonial rule practiced dominance without hegemony. See Guha, Dominance without Hegemony. 98. Tracing the writings of lawyers and their sensibilities is writing their cultural history. See Sugarman, “‘A Hatred of Disorder,’” 34–67; and Sugarman and Pue, “Introduction,” 1–24. 99. Ra’fat, Usul al-qawanin. 100. Amin’s letter was published in Arabic and French as a preface to the book. 101. Ra’fat, Usul al-qawanin, 2. 102.  For a discussion of positive law and the separation it establishes between fact and law, see Constable, The Law of the Other. 103. Ra’fat, Usul al-qawanin, 12–13. 104. Ibid., 15–16. 105. Qadri, Kitab murshid al-hayran ila ma‘rifat ahwal al-insan. 106.  See correspondence between the Mufti and the Ministry of Education, printed in the beginning of the second edition of the book. 107. Another example of this genre of writing is ‘Assaf, Mir’at al-Majalla, 6. Mir’at al-Majalla aimed at explaining the codified shari‘a, that is, Al-Majalla. Yusif ‘Assaf, the author, was the founder of the law journal Al-Mahakim and a lawyer before the Court of Appeal and other national courts. Al-Majalla was originally written in Turkish; ‘Assaf added explanations in Arabic to accompany the articles. 108. ‘Abdullah, Muqaddimat al-qawanin, 1. It should be noted that the book is replete with references to Western legal and political philosophy. ‘Abdullah’s indebtedness to Bentham, however, is clear; he writes against Hobbes and Locke, in particular their arguments concerning what Abdullah defines as the imaginary movement from the state of nature to civil society. 109. Ibid. 110. Ibid., 14–18. 111. Mursi and Mustafa, Usul al-qawanin. 112. Austin, The Province of Jurisprudence Determined. 113. Mursi and Mustafa, Usul al-qawanin, 27–28. 114. Ibid., 33. 115.  Given their sympathy with the German historical school, how do Mursi and Mustafa explain the French-inspired reforms of the late nineteenth century, which departed from the khedival system? The authors admit that the example of Egypt proves the German historical school wrong. Three factors, however, may explain what could be called the ahistorical development of the law. First, according to Mursi and Mustafa, some past legalities continued to operate under the new system. The authors seem to be referring here to the continuing restriction of the shari‘a courts to matters of personal status law. Second, the previous system suffered from “total chaos,” and Egyptians welcomed the new system. Third, most Egyptians who became subject to the new legal system were merchants who had encountered foreigners in their previous dealings and therefore were familiar with their laws and morals. Additionally, the authors observe that new amendments to the laws were introduced gradually, in order to adapt them to local customs and culture. See Mursi and Mustafa, Usul al-qawanin, 34–35. 116. Hart, The Concept of Law. 301

notes to chapter 1

117. Mursi and Mustafa, Usul al-qawanin, 48. 118. Safwat, Muqaddimat al-qanun. Talal Asad devotes a lengthy discussion to Safwat’s writing, focusing on Safwat’s shari‘a reform agenda. He argues that Safwat was one of the first jurists to use the family as a legal category of the shari‘a. See Asad, Formations of the Secular, 236–239. 119. Weber, Economy and Society, 217–223. 120.  For a discussion of the genre of usul al-fiqh, see Hallaq, “Usul al-Fiqh,” which is mostly concerned with questions of originality; Badir, “Fikh to Law,” in which the author argues that usul al-fiqh is a science that seeks to identify the primary sources from which the rules of fiqh may be deduced and the methods to be used in the process of deduction; and Hallaq, “Consideration of the Function and Character of Sunni Legal Theory,” which focuses on legal theory and the body of principles and rules regulating procedures of analogy, which was the chief methodological tool for discovering what God had ordained for different questions. 121.  See, for example, Johansen, “Casuistry.” 122. Safwat, Muqaddimat al-qanun, 1. 123. Mursi and Mustafa, Usul al-qawanin, 5–6. 124. This genre of textbooks is different from the legal discursive tradition of the shari‘a, which Brinkley Messick points to in his discussion of Yemen. This tradition was not based on deduction, but on textual practices of citation, recitation, and commentary. See Messick, The Calligraphic State. 125.  “Tarikh al-nahda al-arabiyya al-akhira fi Misr wa-l-sham,” Al-Hilal 9, no. 15, May 1901, 403–436, 432. 126. Mehta, Liberalism and Empire. 127. Al-Bustani, Sharh qanun al-‘uqubat al-misri. 128. Amin Beik, Sharh qanun al-‘uqubat al-ahli, 305. 129. The Committee of Judicial Surveillance was composed of jurists who followed up on the decisions of the courts and issued circulars asking the judges to correct what they perceived to be legal errors. Their circulars could not change the rulings in a particular case, but the judges were to follow them in their future rulings. 130. One of the more interesting aspects of Garraud’s work is his historical elaboration on the prerevolutionary sources of French law: Germanic law, Roman law, and canon law. In this regard, Garraud does not argue that there was a radical rupture in modern penal code but rather that it was affected by earlier traditions. Garraud, Traité théorique et pratique du droit penal français, 535–537. 131.  For an analysis of the textbook tradition under the common law system, see Sugarman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition.” 132.  For the importance of citation in the work of historians, see Hexter, “The Rhetoric of History.” Also see the study of Scottish law by Lindsay Farmer, who shows that the specifically modern characteristics of modern criminal law should be located in how the practice of criminal law continually departs from its positivist doctrines: Farmer, Criminal Law, Tradition and Legal Order, 13. 133.  See, for example, Nash’at Beik, Sharh qanun tahqiq al-jinayyat. The author of this textbook was an instructor at the School of Law who previously held a judgeship in Cairo. See Khalil, Ithbat al-huquq al-madaniyya. Khalil was a prosecutor before the Alexandria Court. In addition, see Introduction to the Study of Law by Frederick Goadby, who was an instructor in the School of Law. 134. Kahn, The Cultural Study of Law, 43. 302

notes to chapters 1 and 2

135. Austin, The Province of Jurisprudence Determined, xvii–xviii. 136. Ibid., 169. 137. Ibid., 313. 138. Ibid., 179. 139. Ibid., 172. 140. Campbell, “Detraditionalization, Character, and the Limits to Agency.” 141.  For other discussions of the temporality of law, see Khan, “Temporality of Law,” in which Khan argues that temporality is an integral part of the law and offers four general principles of law’s temporality; and see Bruner, “Modern Times,” in which Bruner shows how modern thinkers construe the law as the intersection between secular eternity and the transience of modernity. This then enables both change and stability at the same time. 142.  For the theorization of legal practice, see Harrington, “Outlining a Theory of Legal Practice.” 143. Euben, Journeys to the Other Shore. 144. Ra’fat, Usul al-qawanin, 23. 145. Ibid., 24. 146. Ibid., 23. 147. Ibid. chapter 2 Portions of this chapter appeared in Samera Esmeir, “At Once Human and Not Human: Law, Gender and Historical Becoming in Colonial Egypt,” Gender & History 23, no. 2 (August 2011): 235–249. Copyright 2011, John Wiley and Sons. Permission courtesy of John Wiley and Sons. 1. Cole, Colonialism and Revolution in the Middle East. 2. The records of the trial are available in the National Archives in London (FO 633/49). 3. Milner, England in Egypt, 28. 4. Decades later, in 1920, Milner would lead a commission to Egypt that recommended Egyptian independence. 5. Milner, England in Egypt, 3. 6. Ibid. 7. Chirol, The Egyptian Problem, 74. Chirol (1852–1929) was a passionate imperialist who lived in Cairo from 1876 to 1879 and was the author of more than ten books on the Middle East, the Ottoman Empire, and India. 8. Ibid. 9.  For a work that examines precisely this gap, see Conklin, The Civilizing Mission: The Republican Idea of Empire in France and West Africa, 1895–1930, as well as Conklin, “Colonialism and Human Rights.” See also Wilder’s critical take on Conklin: Wilder, The French Imperial Nation-State, 6–8. 10. Rousseau and many others used the gender-biased “man” when referring to the “human.” When citing from their texts, to discuss their conceptualization of the human, I follow their own usage. 11. Rousseau, The Social Contract, 20. 12. Ibid. 13.  French historian Lynn Hunt gives Rousseau a central role in the cultural “invention” of human rights in the course of the eighteenth century. She argues that the roots of the human rights revolution of the late eighteenth century are to be found in the rise of the cultural practices of autonomy and sympathy. See Hunt, Inventing Human Rights. Samuel 303

notes to chapter 2

Moyn criticizes Hunt’s progressive historical narrative of human rights and her account of sympathy. See Moyn, “On the Genealogy of Morals.” Also see Moyn’s revisionist take on human rights, in which he argues that contemporary human rights cannot be dated back to earlier historical eras, including the eighteenth century; instead, in his view, it was in the decade following 1968 that contemporary human rights took shape. See Moyn, The Last Utopia: Human Rights in History. 14. In articulating the problem as one of “presence” versus “supplement,” I follow Jacques Derrida’s reading of Rousseau’s The Origin of Language, where Derrida reflects upon the “dangerous supplement,” a concept that serves Rousseau in thinking of writing, together with culture and the movement of history more generally, in contradistinction to the “absolute presence” of nature. Derrida suggests that nature itself, which defines the supplement, is grounded in supplementarity. See Derrida, Of Grammatology, 141–152. 15. Rousseau, The Social Contract, 21. 16. Ibid., 42. 17.  See Marianne Constable’s exploration of positive and sociological law in relation to justice in her Just Silences: The Limits and Possibilities of Modern Law. 18. Rousseau, The Social Contract, 42. 19. Ibid., 44–45. 20.  See Rousseau’s earlier formulations in the Geneva Manuscript, the draft of The Social Contract. There, he argues that man’s internal voice, his mode of judgment, requires law to form itself. A society’s law, which thus creates human subjectivity as man’s inner voice, “is formed only by the habit of judging and feeling within society and according to its laws.” Individuals derive their understanding of humanity through their experience in civil societies, so that “we do not really begin to become men until after we have been citizens.” Rousseau thus posits an evolution in man effected by his entrance into civil society, one in which law’s creation effects private virtue. See Rousseau, On the Geneva Manuscript and Political Economy, 161–162. 21.  See El Shakry, The Great Social Laboratory. 22. Arendt, Imperialism, 171. 23. ‘Abdullah, Muqaddimat al-qawanin, 12. 24. Ibid., 24–25. 25. Kant, Practical Philosophy, 79. 26.  Pheng Cheah offers a wonderful critical reading of Kant by locating humanity in the field of instrumentality, as opposed to its being an ideal that stands as an end outside of instrumentalizing relationships. He therefore concludes that the human should be understood as an effect of inhuman conditions, not their opposite. See Cheah, Inhuman Conditions: On Cosmopolitanism and Human Rights. 27. Kant, Practical Philosophy, 80. 28. Ibid. 29. On the relation between “humanity” and “person,” see Hill, “Humanity as an End in Itself,” 84–99. Hill argues that “humanity in a person” is usually read as “a human person,” according to which reading, “humanity” refers to the class of human beings. Contrary to this view, Hill argues that Kant thought of humanity as a characteristic, or a set of characteristics, of a person, which means that a person can have characteristics of animality as well. As such, humanity is not fully identical with a human person. 30. The point here is not to argue that Kant’s thought was colonial but rather to suggest, as with Rousseau, that his thought had a colonial career. Further, this colonial career stems precisely from his humanist and universalist thought. For a view that finds Kant, as 304

notes to chapter 2

well as other Enlightenment philosophers, to be “against empire” precisely because he was humanist and universalist, see Muthu, Enlightenment against Empire. 31. Safwat, Muqaddimat al-qanun. 32. My argument here should be distinguished from another important argument about the colonial civilizing mission as relying on the transformation of the colonized into subjects of rights; see John L. and Jean Comaroff, Of Revelation and Revolution, vol. 2. In chapter 8 of the book (365–404), the authors explain that the discourse of rights was two-faced and paradoxical, in that the colonized were at once fashioned into citizens of the civilized world and made into ethnic subjects, marking them as premodern. Also see Fischer-Tinâe and Mann, Colonialism as Civilizing Mission. 33. Mauss, The Category of the Person, 7. 34. Ibid., 14. 35. Ibid., 19. 36. Ibid., 22. 37. Ibid. 38. The governmental operations of the “person” are equally important to investigate. Armando Salvatore offers a wonderful account of the rise of the juridical person and legal personality in the reforms of the shari‘a in Egypt during the late nineteenth century. He suggests that under positive law, the person begins to signify a self-regulating autonomous subject, which is required as a legal fiction for the operations of the modern state and specifically for governmentality. See Salvatore, “The ‘Implosion’ of Shari‘a within the Emergence of Public Normativity.” 39. My argument is indebted to the constitutive theory of law, but only partially. I am not arguing that Egyptians came to understand their humanity through the lens of juridical humanity but rather that the legal person came to constitute the concept of the human. See Hunt, Explorations in Law and Society; and Harrington and Yngvesson, “Interpretive Sociolegal Research.” 40. Koselleck, Futures Past, 156–157. 41. I cite from the English translation of the two books, which were published together in English: see Amin, “The Liberation of Women” and “The New Woman,” 7. The view that The New Woman more openly espoused a Western analysis is argued by the translator, Samiha Sidhom Peterson, in her introduction (xi–xiii). For a critical take on Amin’s work, see Ahmad, Women and Gender in Islam. 42. Amin, The Liberation of Women, 59–60. 43. Ibid., 11. The term for gender in the Arabic text is sinf, which means kind, sort, or specimen. The contemporary Arabic term for gender is al-naw‘ al-ijtima‘i. The word ijtima‘i means social and naw‘ conveys similar meanings to sinf with the addition of quantitative distinctions. 44. Ibid., 115–116. 45. Ibid., 1. 46. Ibid., 14. 47. Ibid., 12. 48. Ibid., 63. 49. Ibid. 50. Ibid., 188. 51. Ibid. 52. Ibid., 119. 53. Ibid. 305

notes to chapter 2

54. Ibid., 120. 55. Ibid., 126. 56. Ibid. 57. Ibid., 120. 58. Ibid., 121. 59. Ibid., 126. 60. Ibid. 61.  See also Pagden, The Fall of Natural Man. 62. Fudge, Brutal Reasoning. 63. Minister of the Interior, “Manshur li-jami‘ al-jihhat al-idariyya bi-isti‘mal al-rifq ­wal-layn wal-musawa” [Circular to All Administrative Bodies to Practice Gentleness, Softness, and Equality], June 3, 1883, Qararat wa-manshurat, 1883, 47–48. 64. Wallace, Egypt and the Egyptian Question, 416. 65. Ibid., 229. 66. Cromer, Modern Egypt, 197. 67. Ibid., 416. 68.  Brown, “Who Abolished Corvée Labor and Why?” 118. 69. Ibid., 135. 70. In 1915 the Ministry of the Interior decided to include the eradication of plague in the list of works requiring forced labor: Ministry of the Interior, Al-Waqa‘i al-misriyya, March 25, 1915, 933. 71. Ministry of Public Works, “Report from the Minister of Public Works to His Highness the Khedive about Corvée Labor for the Year 1891,” July 25, 1892, Qararat ­wa-manshurat, 1892, 374. 72. Ministry of Public Works, “A Report about Corvée Labor in the Year 1900,” ­Qararat wa-manshurat, 1901, 334. 73. Cheah, Inhuman Conditions, 260. 74. This particular question draws on my understanding of the power of the law to name. As Pierre Bourdieu contends, “law is a strange creature; it is able to produce its own effects. In fact it itself is its effects.” Therefore, there is no pure form of humanity “out there” against which legal language operates “in reality”; the human is partly a product of legal language/interventions. See Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” 805. 75.  Qararat wa-manshurat, 1881, 34. 76.  H. R. Fox Bourne, Secretary of the Aborigines Protection Society, “Egypt under British Control,” FO 371/246. 77. There was another decree in 1888. 78.  Khedival decree, September 9, 1887, regarding the compelling of capable people to carry out maintenance work during the Nile flood. 79.  Al-Huquq 6, 1891, 124. 80.  Khedival decree, January 28, 1892, regarding the abolition of corvée labor. 81. Arendt, Imperialism, 147–182. 82. Ibid., 176. 83.  Such is the position advanced by Raymond Geuss, who argues that it makes no sense to speak of rights without a mechanism for enforcing them; the concept of human rights is therefore “a kind of puffery or white magic.” It is thus only within a state that provides mechanisms of rights enforcement that one can practice one’s human rights. See Geuss, History and Illusion in Politics. 306

notes to chapter 2

84. Agamben’s reading of Arendt suggests this expulsion from the juridical order and creation of the raw human. See Agamben, Means without End, 15–26. 85. Cromer, “What Is Slavery?” in Political and Literary Essays, 3rd series, 271–275. 86.  Scholars have noted Cromer’s utilitarianism; see, for example, Mitchell, Colonising Egypt. See also Pitts, A Turn to Empire, for a study on the relationship between utilitarianism and the British Empire. 87.  Following Benjamin and Derrida, it can be said, alternatively, that unregulated forced labor, or slavery, the founding moment of violence, the violence that dug the irrigation system, continued to haunt the labor that maintained the irrigation system against the floods of the Nile. See Benjamin, “Critique of Violence”; and Derrida, Specters of Marx. 88. Asad, “Conscripts of Western Civilization”; and Asad, ed., Anthropology and the Colonial Encounter. 89. Ibid., 335. 90. Jawhari, Ayna al-insan, 29–30. 91. Ibid. 92. Ibid. 93. Ibid. 94.  Jawhari can be paraphrased via Sylvia Wynter: the human is thought without an oppositional Other and is released from its modern subjugation to an earthly political threat that can destroy it. See Wynter, “Unsettling the Coloniality of Being/Power/Truth/ Freedom,” 257. 95.  See Foucault, “Man and His Doubles” and “The Human Sciences,” in The Order of Things, 303–343, 344–387. 96.  Here I borrow from James Clifford’s book on early twentieth-century anthropologist Maurice Leenhardt, who studied structures of the person in his book Do Kamo. Clifford terms some of Leenhardt’s theorization of the person “cosmomorphic.” Clifford, Person and Myth, 172–186. 97. Jawhari, Ayna al-insan, 31. 98. Ibid. 99. Ibid., 34. 100. Mursi and Mustafa, Usul al-qawanin, 434. 101.  For a brief discussion of the same principle, see Ra’fat, Usul al-qawanin, 184. 102.  See, for example, Shmayyil, Kitab falsafat al-nushu’ wal-iritiqa’ on the evolutionary doctrine. 103.  See, for example, the works of Zeidan, Kitab ‘aja’ib al-khalq. 104.  Jawhari, “Madhhab Darwin” [Darwin’s Doctrine], Misr al-fatat, no. 343, November 15, 1909. 105. Darwin, The Origin of Species, 391. Here I am quoting directly from the English text, even though Jawhari seems to be quoting from an Arabic translation. 106.  Jawhari, “Madhhab Darwin” [Darwin’s Doctrine], Misr al-fatat, no. 343, November 15, 1909. 107.  See Gillian Beer’s introduction to The Origin of Species (xxiii). She discusses the addition of “the Creator and his works” to the second edition and suggests that Darwin was under the stress of the first responses to his work. She quotes a passage from the second edition that includes the addition of “the Creator” between brackets: “There is a grandeur in this view of life, with its several powers having been originally breathed [by the Creator] into a few forms or into one” (396). 108. Ibid., 335. 307

notes to chapters 2 and 3

109.  For the letters of Ikhwan al-Safa concerning the hierarchy of being, see Tamir, ed., Rasa’il ikhwan al-safa wa-khillan al-wafa, in particular, letters 15–26; letter 26 focuses on the human. 110. Mathhar, trans., Asl al-anwa‘, 20. 111.  Jawhari, too, invokes Ikhwan al-Safa in the above-mentioned article. Rather than argue that they planted the seeds of Darwinism—another evolutionary narrative—he quotes a few passages depicting the continuity between plants, animals, and humans and the connections among them while denominating several animals that intersect with the human: monkeys in their appearance, horses in their morality, elephants in their intelligence, and ants in their labor. 112. Jawhari, Ayna al-insan, 61–62. 113. Ibid., 63. 114. Ibid., 64. 115.  Goodrich, “Specula Laws: Image, Aesthetic and Common Law,” 233. 116. Ibid., 235. 117. Ibid., 244. 118.  Goodrich, Barshack, and Schutz, eds., Law, Text, Terror, 3. chapter 3 Chapter epigraph: William Butler served as an officer during the war of occupation. This paragraph from his memoirs is cited in Newsinger, “Liberal Imperialism and the Occupation of Egypt in 1882,” Race and Class 49, no. 3 (2008): 68–69. 1. Ibid., 66. 2. Ibid. 3. Ibid., 68. 4. Letter from Sir E. Malet to Earl of Granville, Cairo, October 10, 1882, FO 633/49, 102423. 5. Memorandum by Lieutenant-Colonel Sir C. Wilson on the condition of prisoners confined in the Egyptian prisons in Cairo, FO 633/49, 102423. 6. Thomas, Man and the Natural World. 7. Goadby, Introduction to the Study of Law. For a contemporary discussion of the significance of Goadby’s work, see Alexander, “Modern Egyptian Criminal Law.” 8. A classic work arguing that the ideals of humanitarianism were the motor behind the reforms is Radzinwicz and Hood, History of English Criminal Law and Its Administration. For a critique that investigates the development of punishment under different social structures, see Rusche and Kirchheimer, Punishment and Social Structure. 9. Foucault, Discipline and Punish, 7. 10.  For discussion on criminal justice reforms introduced in other places, see Jonathan Simon’s work on the development of parole in California from the late nineteenth century until 1990: Simon, Poor Discipline. 11. Ignatieff, A Just Measure of Pain, 118. 12.  Hay, “Property, Authority, and the Criminal Law,” 27. 13. Thompson, Whigs and Hunters. 14. McGowen, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth Century England,” 95. 15. The three greatest abuses connected with the government of Egypt in the past, wrote Cromer in 1885, were: (1) the use of the curbash (whip), (2) corvée (forced) labor, and (3) corruption among the official classes. Sir E. Baring, “A Report on the Condition of the 308

notes to chapter 3

Agricultural Population in Egypt,” presented to both Houses of Parliament by Command of her Majesty, July 1888, 4, FO 653/58. 16. Ministry of the Interior, “Manshur . . . bi-‘adam isti‘mal al-darb” [Circular . . . Preventing Beating . . . ], January 16, 1883, Qararat wa-manshurat, 1300. 17. Letter from Kershaw to Findlay, September 23, 1906, FO 371/68. 18. Ministry of the Interior, “Manshur bima yajri bi-arbab al-sawabiq . . .” [Circular Regarding Past Offenders . . . ], November 11, 1881, Qararat wa-manshurat, 1299, 114. 19. I am not suggesting that this depiction of the conditions of precolonial prisons is accurate. Colonial officials represented the precolonial history as violent, cruel, and inhumane in order to justify their colonial interventions. On the prisons in precolonial Egypt, see Peters, “Controlled Suffering,” 387. 20.  “General Report by Dr. Crookshank on the Changes Introduced in the Management of Egyptian Prisons since January 1, 1884,” FO 633/53. 21.  Prison and Prisoners Division, Ministry of the Interior, Mudhakkira [Memorandum], March 14, 1897–September 23, 1915, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya, 14/B. 22. Ministry of the Interior, Manshur [Circular], May 5, 1883, Qararat wa-manshurat, 1300. 23. Ministry of the Interior, “Manshur bi-sha’in mulahazat al-sujun . . .” [Circular Regarding the Inspection of Prisons], February 2, 1882, Qararat wa-manshurat, 1299, 126; Ministry of the Interior, “Manshur bisha’in halat al-sujun” [Circular Regarding Prison Conditions], November 11, 1882, Qararat wa-manshurat, 1299, 232. 24. Ministry of the Interior, “Manshur . . . bi-sha’in al-zabt . . .” [Circular Regarding Security], January 11, 1883, Qararat wa-manshurat, 1300, 237. 25. Ibid. 26. Ministry of the Interior, “Qarar” [A Decision], January 11, 1891, Qararat wamanshurat, 1891, 18. 27. Ibid., Articles 26–38. 28.  Prisons Inspection Division, Ministry of the Interior, Qararat wa-manshurat, 1899, 85. 29.  Prisons Inspection Division, Ministry of the Interior, Qararat wa-manshurat, 1891, 290. 30. Mr. Egerton to Earl Granville, June 9, 1884, including three enclosures, FO 633/53. 31.  See, for example, Prosecutor General v. Ibrahim Tansh et al., Alexandria Court of Appeals, Criminal Case, September 26, 1998. This case is interesting in its own right because it deals with a tortured subject who was found dead in his cell. The prosecution’s indictment referred to the cruel treatment, or torture, but not the cause of death. The Court of Appeals decided that it, too, could not decide on the question of the cause of death, because this was a separate matter from the question of cruelty. A distinction was thus established between cruel treatment, which was an offense, and causing death, which was a crime. To address the former, the Court decided that it did not need to investigate the latter unless the prosecution asked for joining the two acts, which it did not do in this case. The court ruling was reprinted in Al-Huquq 13, 1898, 309–312. 32. Ibid., 324–325. 33.  “Ibdal al-habs bi-l-gharama” [Substituting Fines for Imprisonment], Al-Huquq 6, 1991, 25–27. 34.  “La’ihat tashghil al-mahbusin wal-masjunin” [The Employment of Prisoners Act], Al-Huquq 8, 1893, 132–134. 35.  Prison Inspection Division, Ministry of the Interior, “Report for the Year 1893,” Qararat wa-manshurat, 1894, 204–210. 36.  Prison and Prisoners Division, Ministry of the Interior, “Mudhakkira bisha’in i‘fa’ 309

notes to chapter 3

al-masjunin min rasm al-mu‘alaja” [Waiving Prisoners’ Treatment Fees], November 2, 1985, March 16, 1881–August 22, 1921, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya, 14/A. 37. Lord Cromer to Colonel Ferguson, June 11, 1902, FO 633/8B. 38.  Peters, “Controlled Suffering,” 387. 39. Ibid. 40.  Fahmy, “Justice, Law and Pain in Khedival Egypt,” 87–91. 41. Foucault, History of Sexuality, vol. 1, 141–144. In Society Must Be Defended, Foucault suggests that biopower can also be destructive. The opposition between oppressive deadly power and productive, life-enhancing power that structures the narrative in The History of Sexuality is revised in Society Must Be Defended. 42. Bentham, Introduction to the Principles of Morals and Legislation. 43. Mitchell, Colonising Egypt. 44. Talal Asad argues that the abolition of torture was partly grounded in the argument about the commensurability of pain. What I add is that the instrumentalization, manipulation, and maneuvering of pain are also crucial. See Asad, “Reflections on Cruelty and Torture,” in Formations of the Secular, 100–126. 45.  See Maestro, Cesare Beccaria and the Origins of Penal Reform. Drew Humphries and David Greenberg have developed a critique of Beccaria as part of the school of “radical criminology”: see Humphries and Greenberg, “The Dialectics of Crime Control.” 46. Beccaria, An Essay on Crimes and Punishments, 25–26. 47. Ibid., 43. 48. Ibid. 49. Ibid., 45. 50. Ibid., 44. 51. This of course is not the only way to define sensibility. Aristotelian ethics would define a sensibility in both bodily and ethical terms. For work that traces this sensibility among Islamists, see Hirschkind, The Ethical Soundscapes; and Mahmood, The Politics of Piety. 52. Beccaria, An Essay on Crimes and Punishments, 47. 53. MacIntyre, Dependent Rational Animals, 2. 54.  For the concept of “actant,” see Latour, Reassembling the Social. 55. Latour, We Have Never Been Modern, 136–138. 56. Calcutta Society for the Prevention of Cruelty to Animals, To the Children of Calcutta, on Cruelty, 1. The nineteenth century witnessed the establishment of societies for the prevention of cruelty to animals in Britain and subsequently in its colonies. The Calcutta Society for the Prevention of Cruelty to Animals was such a society established in British India. 57. Ibid., 12. 58. Young, Postcolonialism, 77. In this way, the British expansion into Fiji in 1874 was motivated by the desire to protect Fijians from the unsavory practices of the British settlers. 59.  Society for the Prevention of Cruelty to Animals (Egypt), First Report for the Year 1883. 60. Lord Cromer to Mrs. Adlam, no. 537, December 1, 1892, FO 633/5. 61. Articles 342 and 347 of the 1883 Penal Code, which correspond to Article 342 of the 1904 Penal Code. 62. Decree, November 30, 1895, republished in Al-Huquq 10, 1895, 398. 63. Letter from the Director of the Council for Public Health to the Minister of the Interior, May 8, 1881, Ministry of the Interior, Draft Proposals, May 8, 1881–May 2, 1893, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya, 15/A. The letter states that a draft proposal for a law attending to animal epidemics had been prepared but that the question of crimi310

notes to chapter 3

nalizing violations of the proposal remained unresolved and that the government should decide this matter. 64.  For the citation and exact language of the articles, see Peters, “Mehmet Ali’s First Criminal Legislation.” 65. The Marakiz Tribunal of Nag‘ Hamadi rejected the argument that sheep are “domestic animals.” See State Representative v. Rabi‘ Muhammad ‘Ali and Another (The ­Marakiz Tribunal of Nag‘ Hamadi, May 30, 1905), Official Bulletin of the Native Tribunals 6, no. 9 (1905): 230 (in Arabic). 66. Article 310 of the 1904 Penal Code, amending Article 330 of the 1883 Penal Code. 67. Article 312 of the 1904 Penal Code, amending Article 331 of the 1883 Penal Code. 68. Circular of the Committee for Judicial Surveillance, no. 28, May 5, 1935, published in Collection of Circulars of the Committee for Judicial Surveillance, 1914–1936 (Cairo, 1937), 50 (in Arabic). 69. Gellat, Kitab al-ta‘liqat al-qada’iyya ‘ala qawanin al-mahakim al-misriyya, 117. 70. Circular of the Committee for Judicial Surveillance, July 30, 1932, published in Collection of Circulars of the Committee for Judicial Surveillance, 1914–1936 (Cairo, 1937), 50 (in Arabic). 71. Circular of the Committee for Judicial Surveillance, no. 28, February 3, 1916, published in ibid., 49 (in Arabic). 72. Circular of the Committee for Judicial Surveillance, no. 45, July 7, 1914, published in ibid., 50 (in Arabic). Also see Circular of the Committee for Judicial Surveillance, no. 104, December 24, 1927, published in ibid., 50 (in Arabic). 73. Letter from Gorst to Edward Grey, April 18, 1908, FO 371/450. 74. In 1895 and 1897, khedival decrees were issued with regard to treating sick animals no longer capable of work. See, for example, Ministry of the Interior, April 20, 1903, Qararat wa-manshurat, 1903, 45–46. 75. In 1905, the fee for the treatment of a donkey for twenty-four hours, for example, was twenty-five piastres; in 1913 it was raised to forty piastres. Ministry of the Interior, “Qarar bi-ta‘dil ta‘rifat masarif mu‘alajat al-hayyawanat” [A Decision Regarding ­Changing the Fee for Treating Animals], March 15, 1913, Qararat wa-manshurat, 1913, 129. 76.  “Amr ‘ali bi-mu‘alajat al-dawab” [Khedival Decree Regarding the Treatment of Animals], November 28, 1895, in Ministry of the Interior, Draft Proposals, May 8, 1881– May 2, 1893, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya 15/A. 77.  “Mashru‘ qanun man yusi’ mu‘amalat al-dawab” [The Mistreatment of Animals Draft Proposal], June 25, 1906, in Ministry of the Interior, Draft Proposals, May 8, 1881– May 2, 1893, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya 15/A. 78.  Society for the Gentle Treatment of Animals, Report for the Year 1920. 79. Ibid. 80. Lord Cromer to Mrs. Adlam, no. 537, December 1, 1892, FO 633/5. 81. Oshinsky, Worse than Slavery, 20–21. 82. Rules from 1895, for example, regulated the hunting of quail, making it conditional on obtaining a hunting license from the province for a fixed fee. Article 7 provided that the fees were to be distributed to the farmers who owned the lands where the hunting took place. The farmers had no right to request such distribution. The penalty for violating these regulations was a fine of between thirty and one hundred piastres and imprisonment for between twenty-four hours and five days. See Qararat wa-manshurat, 1895, 789. 83.  See the translation of three articles published in the Morning News addressing the work of the Societies for the Gentle Treatment of Animals: “Ta‘rib thalath maqalat” [Trans311

notes to chapter 3

lation into Arabic of Three Articles], October 12–14, 1910, Ministry of the Interior, Societies and Companies Division, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya, 3/B. 84. Mill, “The Case of William Burn,” 952–954, 953. 85. Ibid., 954. 86. Ibid. 87. Thomas, Man and the Natural World, 150. 88. Ibid., 156. 89. Ibid., 176. 90. Bentham, Introduction to the Principles of Morals and Legislation, 311 n.1. 91. Arendt, “The Rights of Man and the End of the Nation State,” in Imperialism, 147–183. 92. Agamben, The Open, 24. 93. Latour, Reassembling the Social, 1–20. 94.  Shai Lavi calls the hypothesis that life is that which humans share and politics is that which sets them apart the “masked-animal hypothesis.” See Lavi, “Animal Laws and the Politics of Life,” 223. 95. Haraway, When Species Meet. See in particular the chapter “Sharing Suffering,” 70–75, where Haraway argues that it is not the instrumental relations between animals and humans that transform animals into machines that have no presence. Instrumentality is intrinsic to “bodily webbed mortal earthly being and becoming.” It is the unidirectional relations of use that are the problem. 96. Tahtawi, Al-Siyasa wal-wataniyya wa-l-tarbiyya, 303–305. 97. Goadby, Introduction to the Study of Law, 218. 98. Ibid. In the 1914 edition that I consulted, “event” has been crossed out by hand and replaced with “thing.” 99. Marquess of Zetland, Lord Cromer, 316. 100.  “Introduction to Mr. Stephen Paget’s work, For and against Experiments on Animals,” H. K. Lewis Experiments on Living Animals, March 27, 1912; republished in Cromer, Political and Literary Essays, 237. 101. Lord Cromer, “The Vivisection Report: To the Editor of the Times,” FO 633/29. See also Lord Cromer’s address to the annual general meeting of the Research Defence Society, London, 1911: Research Defence Society, “An Address by the Right Hon. The Earl of Cromer, O.M., G.C.M.G., G.C.B,” FO 633/28. Cromer was still president of the society when he delivered the speech. 102. Lord Cromer to Mrs. Adlam, no. 54, January 8, 1893, FO 633/5. 103.  Parliamentary inquiry, July 20, 1906, FO 371/67. 104. Memorandum, August 16, 1906, FO 371/67. 105. Letter to Tyrrell, July 26, 1906, FO 371/67. 106.  From Andrew Balfour, M.D., to H.E. the Governor General, August 27, 1906, FO 371/67. 107.  Entomological Research Committee, “Correspondence Relating to the Development of Entomological Research in the British Colonies and Protectorates,” no. 1, The Earl of Cromer to Mr. L. Harcourt, October 8, 1912, FO 633/29. 108.  General Report by Dr. Crookshank on the Changes Introduced in the Management of Egyptian Prisons since January 1, 1884, FO 633/53. 109. Ibid. 110.  See Simon, Poor Discipline; Garland, Punishment and Welfare; and Wiener, “The March of Penal Progress,” 83. 312

notes to chapters 3 and 4

111. This decision of the Court of Assize was in reference to an incident of theft, which took place in Kafr al-Sarim in the province of al-Gharbiyya. The ‘umda was informed of the theft and the names of the offenders were also given. The ‘umda brought the defendants to his house, believing that they were in fact the thieves and beat them (State Representative v. Ahmed Youssef Nassif and others, Court of Assize, June 28, 1927, Official Bulletin of the Native Tribunals 28, no. 8 (1927): 221 [in Arabic]). 112. Decree, August 14, 1893, republished in Al-Huquq 8, 1893, 214. 113. Article 73 of the 1901 Prisons Decree, a comprehensive decree that brought together various regulations and decrees related to the prisons. 114. Article 74 of the 1901 Prisons Decree. 115. Article 75 of the 1901 Prisons Decree. 116. Article 79 of the 1901 Prisons Decree. 117. According to the internal regulations of the Ministry of the Interior published in March 25, 1914, prisoners who were tried before the mixed courts (i.e., foreign prisoners) and imprisoned in the government’s prisons were not to be lashed, transferred, or chained as Egyptian prisoners were. Article 10 provides that in such cases as attempts at escape, upheavals, attacks, or destruction, the prisoner should be referred to the relevant authority, which would in turn inflict the punishment. 118. Article 35 of the 1901 Prisons Decree. 119. Article 63 of the 1904 Penal Code establishes a penalty of twelve strokes for contraventions and twenty-four strokes for other cases. The article also indicates that a thin stick should be used. Additionally, Article 59 states that only a boy who is seven years of age or above can be indicted. Article 60 establishes special penalties for juveniles between the ages of seven and fifteen. 120. Circular of the Committee of Judicial Surveillance, “Whipping of Juvenile Offenders,” May 22, 1904, Official Bulletin of the Native Tribunals 5, no. 9 (1904): 96 (the quotations here are from the English version of the circular). See also a later circular concerning the regulation of physical punishment of juvenile offenders: Circular of the Committee of Judicial Surveillance, June 6, 1909, Official Bulletin of the Native Tribunals 10, no. 10 (1909): 313 (in Arabic). 121. Amin Shmayyil, “The Punishment of Criminals: The Laws Follow Time and Place,” Al-Huquq 3, 1888, 16. 122. Isawy el-Sayyid Ghanem and Others v. State Representative and Others, Court of Cassation, May 27, 1911, Official Bulletin of the Native Tribunals 13, no. 1 (1912): 3 (in Arabic). 123.  See Selverstein, Unleashing Rights. 124. The manuscripts were published in an edited volume titled Bentham and Legal Theory. In the chapter “Torture,” William Twining makes these manuscripts available and discusses them. 125. Ibid., 43. 126. Ibid., 44–45. 127.  See Asad, Formations of the Secular. chapter 4 1.  See chapter 3 for details about the battle that resulted in the occupation of Egypt. 2. In thinking about insects in Egypt, I am indebted to Timothy Mitchell’s chapter on nonhuman actants: see Mitchell, “Can the Mosquito Speak?” in Rule of Experts, 19–53. 3.  See Schanz, Cotton in Egypt and the Anglo-Egyptian Sudan, 69. 313

notes to chapter 4

4.  See my discussion of the debt in chapter 5. 5. Schanz, Cotton in Egypt, 72. 6. Official Report of the Delegation of the International Cotton Spinners’ and Manufacturers’ Associations to Egypt, 175–177. 7. On the role of science in colonization projects, see Prakash, Another Reason. 8.  Ellis Goldberg argues that the explicitly anti-imperialist accounts of Egyptian history exclude Egyptians from any active role in the construction of the political and economic order. My account includes both Egyptian and international actors, as both were crucial for the development of the legal, economic, and political order. See Goldberg, Trade, Reputation, and Child Labor in Twentieth Century Egypt. 9.  For a historical discussion of these schemes, see El Shakry, The Great Social Laboratory; and Gasper, The Power of Representation. 10.  For a historical and theoretical account of the relationship between the abolition of slavery and capitalism, see Ashworth, Davis, Haskell, and Bender, Capitalism and Abolitionism as a Problem in Historical Interpretation. 11. Prakash, Bounded Histories: Genealogies of Labor Servitude in Colonial India, xi. 12.  Beckert, “Emancipation and Empire: Reconstructing the Worldwide Web of Cotton Production in the Age of American Civil War,” 1422. 13.  See Teoman and Kaymak, “Commercial Agriculture and Economic Change in the Ottoman Empire during the Nineteenth Century.” 14.  Beckert, “Emancipation and Empire,” 1419. 15. Ibid. 16. Baer, Studies in the Social History of Modern Egypt. 17. Richards, Egypt’s Agricultural Development, 1800–1980. Richards discusses the effects of the booming cotton export industry on society and economy. 18. Official Report of the International Cotton Congress, 6. 19. McFarlane, “The Production of Cotton in Egypt.” 20.  “Copy of the Dispatch from Sr. E. Baring Inclosing a Report on the Condition of the Agricultural Population in Egypt,” July 1888, FO 653/58. 21. The mixed courts, established in 1876 to adjudicate cases involving foreigners or a “mixed interest,” ruled that lending money on land as a security, at usurious rates of interest, could force the proprietors to sell their lands in order to repay the sum advanced. 22.  “Copy of the Dispatch from Sr. E. Baring Inclosing a Report on the Condition of the Agricultural Population in Egypt,” July 1888, 6, FO 653/58. 23. Ibid., 6. 24. Ibid., 9. See additional discussion of forced labor in chapter 2. 25. Ibid., 13. 26.  See, for example, a report prepared by H. R. Fox Bourne, secretary of the Aborigines’ Protection Society, “Egypt under British Control,” FO 371/246. This report is critical of Cromer’s policies and argues for further reform. Nonetheless, it shares Cromer’s views on the nature of the precolonial regime and the reforms needed to help Egypt. 27.  “Memorandum Giving the Views of Friendly Egyptians on the Situation Today,” March 4, 1900, FO 141/684/2. For the history of irrigation in Egypt, see Sa‘oudi, Tarikh tatawwur al-rayy fi Misr. 28. In a letter to Lord Granfil of 1884, Lord Cromer stated that the use of the whip was one of the main ills of the country. 29.  For a more general discussion of Mehmed Ali’s agricultural policy, see Rivlin,

314

notes to chapter 4

The Agricultural Policy of Muhammad ‘Ali in Egypt; and Shilbi, Al-Mujtama‘ al-rifi fi ‘asr ­Muhammad ‘Ali. 30.  Kato, “Egyptian Village Community under Muhammad Ali’s Rule,” 183. Also see Mitchell, Colonising Egypt, 40–41. 31. The statute was a reprint of some articles in La’ihat zira‘at al-fallah wa-tadbir akham al-siyyasa bi-qasd al-najah [Program for Successful Peasant Cultivation and the Application of Government Regulation], which was introduced in 1829. See Peters, “For His Correction and as a Deterrent Example for Others”; and Kato, “Egyptian Village Community under Muhammad Ali’s Rule.” 32. Bowring, Report on Egypt, 41. 33.  Peters, “For His Correction and as a Deterrent Example for Others.” 34. The book is based on Nahhass’s doctoral thesis, which he submitted to a law school in France. See Nahhass, Al-Fallah. 35. Ibid., 137–138. 36. Ibid. 37. Mustafa, Al-Wajiz fi al-qanoun al-jina’i. 38. Ibid., vii. 39.  Procurer-General, “Taqrir ‘an a‘mal al-Mahakim al-Ahliyya li-‘am 1891” [Report on the Working of the National Courts for the Year 1891] (Arabic translation), Qararat wa-manshurat, 1892, 164–179. 40. Ministry of Justice, Report for the year 1910, presented by the judicial advisor Malcolm McIlwraith, March 1911 (Cairo: National Printing Department, 1911). 41. Ministry of the Interior, “Manshur . . . bi-sha’in ikhtisas . . .” [Circular Regarding Responsibilities . . . ], October 19, 1884, Qararat wa-manshurat, 1884, 103, 104. 42. On the chain of reference, see Latour, Pandora’s Hope. 43. Baer, History of Landownership in Modern Egypt, 224–225. In 1894, medium-size properties made up another 37.7 percent, while those of five acres and under accounted for the remaining 19.8 percent. 44. Owen, Cotton and the Egyptian Economy, 240. 45. Brown, Peasant Politics in Modern Egypt. 46.  ‘Abd al-Wahid, Tarikh al-‘ummal al-zira‘iyyun fi Misr, 35. 47. Ibid., 32. 48. Ibid., 36. 49. Owen, “Development of Agricultural Production in Nineteenth Century Egypt.” 50. It was not until November 1930 that a Labor Office was established in Egypt. This department consulted with Harold Butler, the associate director of the International Labor Office, who in turn suggested legislation for the protection of laborers. The office initiated the promulgation of many decrees, all of which were concerned with industry rather than with agriculture. One of the first labor codes in Egypt, enacted in 1909, was a code regulating child labor in the cotton-related industries. The Labor Office promulgated other laws regulating the labor of women, labor injuries, labor unions, and so forth. See ‘Abd al-Wahid, Tarikh al-‘ummal al-zira‘iyyun fi Misr, 49. 51. Timothy Mitchell develops this insight into the relationships among the state, society, and the economy; see Mitchell, “Society, Economy and the State Effect.” 52.  For the penalizing of peasants who failed to combat the Nile’s floods, see Esmeir, “Of Legal Coloniality/Modernity,” unpublished paper. 53. Daston and Vidal, “Introduction,” in The Moral Authority of Nature, 2.

315

notes to chapter 4

54.  See, for instance, Fanon, The Wretched of the Earth; and Todorov, The Conquest of America. Edward Said’s Orientalism is to a large extent a critique of this distinction. 55.  For the relationships among imperialism, humanism, and nature, see Zimmerman, Anthropology and Antihumanism in Imperial Germany. 56. Daston and Vidal, “Introduction,” in The Moral Authority of Nature, 2. 57. Balls, Egypt of the Egyptians, v. 58. Mitchell, “The Object of Development: America’s Egypt,” 130. 59. Balls, Egypt of the Egyptians, 128. 60. Ibid. 61. Pagden, The Fall of Natural Man. 62. Balls, Egypt of the Egyptians, xx. 63. Ibid. 64. Ibid., 146. 65. Ibid., 161. 66. The Earl of Cromer to Sir Edward Grey, March 15, 1907, FO 371/247. 67. Arendt, “The Conquest of Space and the Stature of Man,” in Between Past and Future, 265–280. 68. Arendt, The Human Condition, 15. 69. Ibid., 17. 70. Arendt, “The Concept of History: Ancient and Modern,” in Between Past and Future, 41–90, 44. 71. Arendt, The Promise of Politics, 93. 72. Arendt, The Human Condition, 9. 73. Arendt, “The Concept of History,” 58. 74. Ibid., 59. 75. It should be noted that in On Violence, where Arendt defines force, as opposed to strength, power, and violence, she attributes force to nature. Force refers to movements in nature and to other circumstances out of human control. Even if Arendt sees the centrality of force to nature, she does not see politics as affected by such force. 76. I borrow the term from Bruno Latour; see Latour, The Politics of Nature, 1–8. 77.  For a discussion of other transformations that occurred to the study of nature during the nineteenth century, see Farber, Finding Order in Nature. 78.  Bowler and Morus, Making Modern Science, 182. 79. Foucault, The Order of Things. See also Larsen, Interpreting Nature. 80. Dunlap, Nature and the English Diaspora. 81.  Bowler and Morus, Making Modern Science, 165, 166, 184. 82. The Earl of Cromer to Mr. L. Harcourt, October 8, 1912, in “Correspondence Relating to the Development of Entomological Research in the British Colonies and Protectorates,” FO 633/29. 83. Balls, Egypt of the Egyptians, xx. 84. A. H. Dixon, “Egyptian Cotton Prospects,” paper submitted to the 7th International Cotton Congress, Brussels, June 1910, FO 368/400. 85.  From the Chairman of the International Federation of Master Cotton Spinners’ & Manufacturers’ Associations to Sir Edward Grey, June 17, 1910, FO 368/400. 86. Official Report of the International Cotton Congress held in Egypt in 1927, by the International Federation of Master Cotton Spinners’ & Manufacturers’ Associations, 175. 87. The British Cotton Growing Association, Memorandum for the Right Honourable Sir Edward Grey, M.P. Secretary of State for Foreign Affairs, “Cotton Growing in the Anglo316

notes to chapter 4

Egyptian Sudan,” November 11, 1910. The British Cotton Association asked in this memorandum to extend cotton cultivation to the Anglo-Egyptian Sudan. In a letter from Sir Edward Grey to Sir Edward Gorst of November 11, 1910 (FO 368/400), Grey wrote that the subject of cotton cultivation was of great importance to the British cotton industry and thus that the British government was bound to take a keen interest and to help in every way it could. 88.  Question by MP Harwood to the Secretary of State for Foreign Affairs, March 15, 1910, FO 368/400. 89. On the history and the professional development of entomology, see Essig, “A Sketch History of Entomology,” 103. See also Palladino, Entomology, Ecology and Agriculture, which traces the rise of entomology as a profession in both the United States and Canada in the late nineteenth century and traces the different scientific institutions that arose in these two countries owing to their differing political circumstances. 90. Willcocks, The Insect and Related Pests of Egypt, 9. 91. The first volume, subtitled “The Insect and Related Pests Injurious to the Cotton Plant,” was printed in Cairo in 1916 by the printing office of the French Institute of Oriental Archeology. The second volume, subtitled “Insects and Mites Feeding on Gramineous Crops and Products in the Field, Granary, and Mill,” was printed in 1925 in Cairo. The twovolume encyclopedia, as the epigraph states, is “an account of the life-history and habits of the insects, mites, ticks, injurious to Egyptian Agricultural and Horticultural crops; fruit and fruit trees . . . by direct attack or as carriers of disease to man.” The volumes also include suggestions for the control of insects and an account of their natural enemies. 92. Willcocks, The Insect and Related Pests of Egypt, 7. 93. Ibid., 10. 94. Ibid. 95. Ibid., 15. 96. Ibid., 209. 97. Ibid., 210. 98. Ibid., 229. 99. Ibid., 231. 100. Ibid., 270. 101. Ibid., 276. 102. Ibid. 103. Balls, The Cotton Plant of Egypt, 14. 104. Ibid., 18. 105. Ibid. 106.  For an examination of agricultural and botanical research in the Caribbean from 1880 to 1930, and especially the relationship between local and foreign scientists, see McCook, States of Nature. See also Scott, Seeing Like a State. 107. Schanz, Cotton in Egypt and the Anglo-Egyptian Sudan. 108. Ibid., 69–70. 109. Ibid., 72. 110. Lockwood, Six-Legged Soldiers. 111.  Quoted in ibid., 3. 112. I draw here on David Kennedy’s Law and War, which theorizes the law as a strategy of war, as opposed to an instrument. 113. Marx, Capital, 11. 114. Ibid. 115. Ibid., 35. 317

notes to chapter 4

116. Ibid., 107. 117. Ibid., 114. 118. Ibid. 119. Ibid., 115. 120. Ibid. 121.  Edward Grey’s reply to a question by MP Harwood to the Secretary of the State for Foreign Affairs, March 15, 1910, FO 368/400. 122.  “Report on the Cotton Crop for the Year 1909/1910,” FO 368/400. 123. Ibid. 124. Court of Appeal, August 14, 1910, Official Bulletin of the Native Tribunals 12, no. 1 (1911): 14–15 (in Arabic). 125. Cassation Court, Dec 16, 1911, Official Bulletin of the Native Tribunals 13, no. 1 (1912): 18 (in Arabic). 126. Report by Ronald Graham, FO 368/400. 127. Law No. 6, April 9, 1913. 128. Law No. 11, June 6, 1918. 129.  See, for example, Law No. 20, June 26, 1921, concerning the destruction of two types of cotton worms, which also imposed a penalty on those who violated the procedures it set forth. In addition, the Ministry of Agriculture issued a decision regarding cotton ginneries: Decision Regarding the Destruction of Worms in Cotton Ginneries, August 31, 1921. 130. The Earl of Cromer to Mr. L. Harcourt, October 8, 1912, in “Correspondence Relating to the Development of Entomological Research in the British Colonies and Protectorates,” FO 633/29. 131. Balls, Egypt of the Egyptians, 215. 132. Ibid., 216. 133. Ibid., 239–240. 134. Ibid. 135. On colonialism as a laboratory, see El Shakry, The Great Social Laboratory. See also Mitchell, “The Stage of Modernity.” 136.  For studies that complicate the meanings of freedom in labor emancipation struggles, see Foner, Nothing but Freedom; and Holt, The Problem of Freedom. 137. Tignor, Modernization and British Colonial Rule in Egypt. 138. Tomlins, Freedom Bound, 11. See also Steinfeld and Engerman, “Labor—Free or Coerced?” By examining wage labor, slavery, indentured labor, and serfdom, Steinfeld and Engerman show the fluidity of these types of labor and how they do not abide by the distinction between free and unfree. 139.  See John L. and Jean Comaroff, eds., Law and Disorder in the Postcolony. This volume investigates, among other things, the predicament of the postcolony in a world order that is dominated by the criminalization of poverty and race. 140. Marx, Economic and Philosophical Manuscripts, 335. 141. Marx, “Crime and Primitive Accumulation,” 45–48. 142.  Greenberg, “Marx and Engels on Crime and Punishment,” 39. 143.  Hilal, “Irhasat la’ihat zira‘at al-fallah.” 144. In Arabic, La’ihat zira‘at al-fallah wa-tadbir al-hukum al-siyyasa bi-qasd al-najah. 145. Lichtenstein, Twice the Work of Free Labor. See also Oshinsky, Worse than Slavery. 146.  Benjamin, “Critique of Violence,” 249. 147.  See Evans, The Criminal Prosecution and Capital Punishment of Animals; and Weiss, “The Criminal Prosecution of Insects.” 318

notes to chapter 5

chapter 5 Chapter epigraph: A response to oral history interviews conducted by Egyptian sociologist Reem Saad with Egyptian peasants who used to work in cotton estates. Saad, Social History of an Agrarian Reform Community in Egypt, 143. 1.  See Hayek, The Constitution of Liberty, 164–165. For the liberal theory of law, see Shklar, Legalism. For another liberal and normative investigation of the rule of law, see also Tamanaha, On The Rule of Law. 2. Austin, The Province of Jurisprudence Determined. 3. Hart, The Concept of Law, 74–75. 4.  For liberal theories of law that juxtaposed sovereign power and the rule of law, see Albert Venn Dicey, who conceptualized sovereignty as singular and absolute, standing in opposition to the rule of law; see Dicey, Introduction to the Study of the Law of the Constitution. For a critique of this conception of sovereignty, see McHugh, “The Lawyer’s Concept of Sovereignty, the Treaty of Waitangi, and a Legal History of New Zealand,” 170. See also Motha, “The Sovereign Event in a Nation’s Law,” 311. 5.  By “specters,” I do not mean evasive ghosts that are without existence or power. On the contrary, by assigning the legalities of the estates the characteristics of a specter, I wish to point to the material work specters do. I draw here on Derrida’s analysis of the work of haunting in which specters are engaged; see Derrida, Specters of Marx, xvii–xx. But I also depart from it, because spectral legalities, in my analysis, do not only come from without. 6. Montesquieu, The Spirit of the Laws, 44. 7. Ibid., 45. 8. Ibid., 81. 9. Ibid. 10. Ibid., 77. 11. Ibid., 79. 12. Cromer, Modern Egypt, 260–261. Cromer’s use of the “machinery” metaphor to describe the legal regime is neither exceptional nor unique. In her book Shadow Justice, Christine Harrington discusses the reforms of the Progressive Era, introducing what she calls “dispute process,” a dimension of the labor process crafted by the newly emerging municipal courts. The question of how to “oil the machinery of justice” was central to these reforms and the “scientific management” of labor. 13. On the ideology of legal orientalism, see Ruskola, “Legal Orientalism,” 179. 14. On the difference between the two legal orders, the particularistic and the general, see Santos, Toward a New Common Sense. Santos draws on Weber’s Economy and Society and traces a transition from “egocentric legality” to “geocentric legality” (456–473). 15. Cromer, Modern Egypt, 517. 16. Ibid., 516. 17. Ibid. 18. Ibid., 520. 19. Ibid. 20.  See the discussion of Fahmy’s and Peters’s work in chapter 1. 21. Carl Schmitt’s theory of the sovereign exception allows for such a reading. See Schmitt, Political Theology, 5–15. 22. Wallace, Egypt and the Egyptian Question, 242. 23. Ibid., 342–343. 24. Mitchell, Rule of Experts. For a history of the plantation system worldwide, see Curtin, The Rise and Fall of the Plantation Complex. 319

notes to chapter 5

25.  Khedival order of Rabi‘ II, 1279 AH, in Sami, Taqwim al-Nil, 513. The text of the order is quoted in Mitchell, “Principles True in Every Country,” in Rule of Experts, 58. Also see other khedival orders: khedival order of Sha‘ban 29, 1279 AH, in Sami, Taqwim al-Nil, vol. 3, 463; two khedival orders of al-Muharram 3, 1280, in ibid., 496; and khedival order of al-Muharram 17, 1280, in ibid., 499. 26. Although the term “rule of law” is modern, its genealogy in the West is long. Hayek argues that the Greek concept that preceded the rule of law was isonomia, which was meant to convey a narrow sense of rule applicable to all manner of persons, in counterpoint to a polity run by personal discretion (quoted in Hussein, The Jurisprudence of Emergency, 8). At a minimum, “rule of law” means a regime under which there exists a separation between the executive power, which executes the rules, and the legislative/judicial powers that make the rules. The executive power (government) is bound by these fixed rules and cannot do just as it pleases. The rules are applicable to all without distinction. The connotations of “rule of law” are more extensive and include notions of justice, individual dignity, freedom, humanity, and so forth. 27.  Brewer and Styles, eds., An Ungovernable People, 13–14. This edited collection includes case studies of specific challenges to authority, tensions between “popular justice” and statute law, and limitations on officials’ authority. 28. The third element, of course, is a product of the English common law tradition. Dicey, Introduction to the Study of the Law of the Constitution, 179–187. 29.  For Cromer’s reform initiatives in the late 1880s and 1890s concerning the courts and the police, see Owen, Lord Cromer, 236–240. 30.  James Fitzjames Stephen made a similar argument about the rule of law in British India. Stephen was a political philosopher who also served as law member of the Colonial Council in India in the 1870s. According to Stephen, “The establishment of a system of law which regulates the most important part of the daily life of the people, constitutes in itself a moral conquest more striking, more durable, and far more solid than the physical conquest which renders it possible” (quoted in Hunter, The Earl of Mayo, 168–169). Also see Nasser Hussein’s work on the rule of law in British India, in which he argues that the rule of law that colonial officials envisioned in India is better understood as “a specific form of rule.” Hussein, The Jurisprudence of Emergency, 10. 31. Hunter, Egypt under the Khedives, 40. 32. Ibid. 33. The mixed courts of Egypt were established in 1875. Their jurisdiction covered “mixed” interests, that is, European or European-Egyptian interests. 34. The term “acre” in what follows refers to an Egyptian acre, or feddan, which was fixed in the nineteenth century at 0.420 hectares, equivalent to 1.038 British or US acres. 35. Baer, A History of Landownership in Modern Egypt, 128. 36. Ibid., 107. 37. On the events leading to the deposition of Khedive Isma‘il by the Ottomans and the role played by the British and the French in it, see Hunter, Egypt under the Khedives, 179–226. 38. The decree was signed by Khedive Isma‘il and published in the Moniteur Egyptien. See “Correspondence Regarding the Appointment of Commissioners for the Management of the Da’ira Lands in Egypt” (Egypt, no. 1, 1879), FO 633/45. 39.  See Brigham, Property and the Politics of Entitlement, 3–5. Brigham focuses on a particular facet of property, “entitlement,” and analyzes the expectations that people have about what they believe to be rightfully and legally theirs. By connecting Brigham’s analysis to the case of large estates in Egypt, I investigate the various meanings and operations of property that were not produced in the codes establishing it. 320

notes to chapter 5

40. The details of the settlements are explained in a letter that Cromer sent in 1888: Sir E. Baring to the Marquis of Salisbury, February 14, 1888, “Correspondence Respecting the Settlement of the Claims of the ex-Khedive Isma‘il Pasha and His Family,” FO 633/58005. 41.  See Owen, Lord Cromer, 306. 42. On the sociohistorical dynamics of property accumulation and the creation of a landless peasantry, see ‘Abbas and al-Disuqi, Kibar al-mullak wal-fallahin fi Misr. 43.  For figures on the distribution of land into estates and their various sizes, see Baer, A History of Landownership in Modern Egypt, 224–225. 44. Stuart, Egypt after the War. 45. Baer, A History of Landownership in Modern Egypt, 66. 46. Cole, Colonialism and Revolution in the Middle East, 207. 47. Baer, A History of Landownership in Modern Egypt, 69. 48. Ibid., 67. 49. Ibid. 50. Ibid. 51. Memorandum of Association of The Land Development Company of Egypt, Limited, registered on October 29, 1904, BT 31/10861/82425. 52. Memorandum of Association of the Egyptian Cotton Planters Company, Limited, registered on July 28, 1914, BT 31/22463/137232. 53. Memorandum of Association of The Cotton Lands of Egypt, Limited, registered on June 25, 1906, BT 11568/892/460007. 54. The Sidi Salem Estates of Egypt, Limited, “Special Resolution,” February 26, 1909, BT 31/11568/892/460009. 55.  See Owen, Cotton and the Egyptian Economy, 242. 56. Baer, A History of Landownership in Modern Egypt. 57. Mustafa Fadil Pasha was one of the “Young Ottomans,” a group of Ottoman nationalist intellectuals formed in 1865, who made his career mainly in Istanbul and who advocated for liberal constitutional reform in the era preceding the British occupation. See Cole, Colonialism and Revolution in the Middle East, 119–122. 58. This incident is recounted in Herbert Kitchener’s letter to Sir Edward Grey, May 3, 1913, FO 371/1938. 59.  Sayyid ‘Ashmawi’s recent book offers a cultural-historical account of the forms of violent resistance in which Egyptian peasants engaged from 1919 until the end of the twentieth century. See ‘Ashmawi, Al-Fallahun wa-l-sulta: ‘ala du’ al-haraka al-fallahiyya al-misriyya. 60. This information is taken from a letter written by Eldon Gorst to Edward Grey on November 9, 1910, FO 371/893 or 894. Gorst did not recount the legal steps taken before the authorization of the Agricultural Bank or how that authorization was achieved. 61. The bank made advances of two kinds: the first were advances not exceeding twenty pounds, secured by the borrower’s note and repayable within a maximum of fifteen months; the second were advances not exceeding five hundred pounds, secured by a first mortgage on land worth at least twice the sum advanced and repayable in twenty and one-half years at most. The annual net profits of the bank were fixed at a minimum of 3 percent on the capital lent out, a rate guaranteed by the government. See Financial Advisor to the Egyptian Government, Mr. Harvey, “Memorandum Regarding the Agricultural Bank of Egypt,” forwarded by Eldon Gorst to Edward Grey, March 20, 1909, FO 368/284. Edward Grey had asked for information about the operation of the bank in response to a request by the Government of India, which was considering a similar experiment. 321

notes to chapter 5

62. Ibid. The reason, according to the financial advisor, lay in the reduction of the interest rate, which in turn encouraged further borrowing. He argued that a large proportion of the bank’s loans were given for land purchases, but the peasants were not always able to pay the installments, especially when the price of cotton fell. 63. Ibid. 64. Owen, “Large Landowners, Agricultural Progress and the State in Egypt.” 65. Owen, Cotton and the Egyptian Economy. 66.  See Richards, Egypt’s Agricultural Development 1800–1980. See also Brown, Peasant Politics in Modern Egypt. 67. Owen, “Development of Agricultural Production in Nineteenth-Century Egypt,” 535. 68. Ibid., 527. 69.  See Hunter’s discussion of the estates from the precolonial era, where he discusses the estates owned by Ilhami Pasha, son of Khedive ‘Abbas. These estates, organized under one Da’ira, had 666 employees and a primary school. Hunter, Egypt under the Khedives, 65. 70. Brown, Peasant Politics in Modern Egypt. 71.  For a discussion of similar surveillance on South African estates, see Murray, “Factories in the Fields.” 72.  See Mitchell, “Principles True in Every Country,” in Rule of Experts, 59–62. 73. Shalabi, Al-Rif al-misri fi al-nisf al-thani min al-qarn al-tasi‘ ‘ashr, 257–258. 74. Nahhass, Al-Fallah al-misri, 109–112. The Arabic version is a translation of the original French version published in 1901. 75. This argument about the visibility and invisibility of peasants to the state draws on James Scott’s argument about the modern state’s ways of seeing and establishing its reach. See Scott, Seeing Like a State. 76. Iqtirah ta‘dil al-qanun al-nizami, 1908 [Proposal to Amend the Administration Law, 1908], Ministry of the Interior, April 27, 1905–May 25, 1922, DWQ, Majlis al-Nuzzar, Nizarat al-Dakhiliyya, 15/G. 77.  Public prosecution no. 744/1910, general no. 41/1911, Defendant Ghazi ‘Abdullah, December 20, 1910 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo], public prosecution investigations, microfilm, 23041). 78. Ibid., microfilm, 20356. This story was not verified. The peasants who allegedly threatened to leave the estate denied it. See microfilm pp. 20363–20364. Another person (the estate shaykh) offered a different version of events, according to which the inspector asked the peasants to send one person to work on the estate, a request they carried out with a delay of only four days. Microfilm, 20368. 79.  Public prosecution no. 865/1896, general no. 104/1896, Defendant ‘Abd al-Mawla Sa‘d, October 5, 1896 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo], public prosecution report, microfilm, 3191). 80. Ibid., court hearings, microfilm, 3230. 81. Ibid. 82. Baer, A History of Landownership in Modern Egypt, 42. 83.  See, for example, the historical novel Al-Wisiyya (The Estate) by Khalil Hassan Khalil, which is based on the author’s life on one estate during the 1930s. 84. This understanding of the legalities governing the estates corresponds to scholarly approaches that consider the estate to be a form of feudalism. Just as many scholars have pointed to the capitalist organization of production on these estates, however, there is a 322

notes to chapter 5

need as well to rethink the assumption that estates were run according to customary law. See Beinin, Workers and Peasants in the Modern Middle East, 53. 85. Saad, Social History of an Agrarian Reform Community in Egypt, 46. 86. Ibid., 45. 87. Ibid., 44. 88.  For a discussion of the production of “distinctions,” see Bourdieu, Distinctions. 89. Derrida, “The Force of Law, 269. 90.  For a discussion of the relationship between the sovereign colonial event of acquisition and Australian postcolonial law that also draws on Derrida, see Motha, “The Sovereign Event in a Nation’s Law.” 91.  Public prosecution no. 158/1905, general no. 106/1905, Defendant Rahim Yusif and others, June 29, 1905 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo], microfilm, 9108). 92. Benton, A Search for Sovereignty, 222. 93.  Public prosecution no. 529/1897, general no. 134/1897, Defendant Murjan al-Sudani and others, November 4, 1897 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo]). 94. Ibid., public prosecution investigations, microfilm, 4507. 95. Ibid., microfilm, 4508–4509. 96.  See a similar argument advanced by Harry Schwirck, who has studied German South West Africa. Schwirck argues that the law did not prevent physical abuse on plantations. The explanation he offers, however, is based on legal doctrine: the Germans developed a doctrine of legitimate corporal discipline that was distinguished from physical abuse. See Schwirck, “Law’s Violence and the Boundary between Corporal Discipline and Physical Abuse in German South West Africa,” 81. 97. Russell, Egyptian Service, 31. 98. Ibid., 33. 99. One of the complaints leveled against Foucault is that he did not fully attend to the dynamics of race and colonization in his historical studies. See Stoler, Race and the Education of Desire. See also David Theo Goldberg, The Racial State, for a discussion of the modern state and its grounding on a logic and practice of racial distinctions, exclusion, and terror. 100. Foucault, The History of Sexuality, 135–145. 101.  Hunt, “Foucault’s Expulsion of Law,” 1. 102.  Ewald, “Norms, Discipline and the Law,” 138. Also, some scholars criticize what they take to be Foucault’s normative account of the law that makes the work of sovereignty less central. See Hussein, The Jurisprudence of Emergency, 14–15. The overemphasis on disciplinary normalizing power has also been noted by Allan Hunt, who seeks a reading of Foucault that retrieves the centrality of state legalities and situates them next to other forms of legal ordering, such as regulatory and disciplinary mechanisms, within a framework of legal plurality. See Hunt, “Foucault’s Expulsion of Law.” In his reply to Hunt’s “retrieval,” Jonathan Simon argues that the law displaced by the emergence of disciplinary power is not the same law that proliferates next to it. He points to the fact that Foucault himself had a plural understanding of law, which changed historically. See Simon, “In Another Kind of Wood,” 49. 103.  Foucault, “Governmentality,” 102–104. 104. Ibid. 105. Foucault, Society Must Be Defended. 106. Ibid., 27. 323

notes to chapter 5

107. Ibid. 108. Ibid., 27–28. 109. Ibid. 110. The plurality argument I put forward here differs from Lauren Benton’s conceptualization of colonial plurality in Law and Colonial Cultures. Benton describes the development of the colonial state through the jurisdictional conflicts between native judicial systems and colonial legal systems. She contends that the cultural practices of indigenous peoples did not disappear in the aftermath of conquest or settlement but rather were grafted onto or coexisted with the state law imposed upon them by the colonizer. Whereas I agree with Benton that “the colonial state was in no small part the product of legal ordering,” I depart from her depiction of “native” and “colonial” legalities as conceptually and empirically separate. My reading of large estates, or legalities of sovereignties, suggests that they did not stand next to, and thus in a possible relationship of tension with, general colonial law but were part and parcel of the colonial rule of law. See Benton, Law and Colonial Cultures, 253. 111.  For an invitation to forgo the assumption of there being a real center of law around which to structure sociolegal research agendas, see Harrington and Yngvesson, “Interpretive Sociological Research,” 135. Harrington and Yngvesson suggest that researching the sites of law’s production cannot be done simply by conducting research into “lower” courts or legal institutions at the bottom of the official hierarchy. This would assume a “real center” of law, as well as separate the law from the sites where it is produced. In the case of colonial Egypt and the laws governing peasants, large estates were important sites for law’s production. 112. Agamben, Homo Sacer, 2. 113. This “flexibility” of liberal legality is not unique to colonialism. The effects of discretionary and arbitrary aspects of sovereign power appear or reappear at particular historical junctures of liberal legality, such as the contemporary neoliberal one. See Harrington and Turem, “Accounting for Accountability in Neoliberal Regulatory Regimes.” 114. Benton, A Search for Sovereignty, 4. 115. Ibid., 289. 116. On sociolegal nonpositivist constitutive approaches to legal plurality, see Brigham, The Constitution of Interests. For the colonial context, see Benton, Law and Colonial Cultures. 117. The reference here is to Agamben’s articulation of the state of exception. See Agamben, State of Exception. 118.  Public prosecution no. 355/1907, general no. 165/1907, Defendant ‘Ali ‘Affuf, September 9, 1907 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo], prosecution investigations, microfilm, 14055, 14057). 119. Ibid., 14076. 120. Ibid., 14070–14072. 121. Ibid., 14058. 122.  For a discussion of a variety of “informal” mechanisms of justice and their relationship to the state legal system, see Abel, ed., The Politics of Informal Justice. 123.  Public prosecution no. 1443/1894, general no. 129/1894, Defendant Salim al-Sudani, September 13, 1894 (case on microfilm in Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice, Cairo]). 124. Ibid., 1131. 125.  Salim used the verb qatala (in colloquial Egyptian Arabic, to kill or to strike). 126.  Penalties were stipulated, among others, for officials who intervened in the work of a judge to help or damage a party in a dispute; a judge who issued such a ruling; and an 324

notes to chapters 5 and 6

official who used his authority to prevent the carrying out of a government order, a court ruling, or a regulation or piece of legislation. 127. Cairo Court, May 10, 1902, Case 17, 106 (quoted in Gellat, Kitab al-ta‘liqat alqada’iyya ‘ala qawanin al-mahakim al-misriyya, 110). The court decision refers to Article 117, which was the relevant article in the 1883 Penal Code, later replaced by Article 110 in the 1914 Penal Code. 128.  See the discussion in chapters 3 and 4. 129. An example is provided by a case in which an ‘umda shot and killed a person who was meeting with him in order to have the latter find him some construction workers. This particular ‘umda was famous for his ability to terrify most people, and so witnesses to the killing were afraid to tell the police the story, fearing the ‘umda’s reaction. It was only after secret investigations were conducted and forensic medical reports prepared that the truth about the killing was revealed. The police records indicate the extent of the ‘umda’s abuse of the peasants on the estate, which involved the use of physical violence, imprisonment, and preventing the peasants from making complaints. 130.  See, for example, decisions of the minister of the Da’ira Saniyya in which he reviewed the decisions of the ministry’s disciplinary committee: for example, Ministry of the Da’ira Saniyya, “Qarar” [A Decision], June 21, 1888, Qararat wa-manshurat, 1888, 210; Ministry of the Da’ira Siniyya, “Qarar,” December 7, 1898, Qararat wa-manshurat, 1898, 417; Ministry of the Da’ira Saniyya, May 30, 1888, “Qarar,” Qararat wa-manshurat, 1888, 195; Ministry of the Da’ira Saniyya, “Qarar,” December 10, 1898, Qararat wa-manshurat, 1898, 419; Ministry of the Da’ira Saniyya, “Qarar,” October 10, 1898, Qararat wa-­ manshurat, 1898, 245; Ministry of the Da’ira Saniyya, “Qarar,” April 9, 1899, Qararat wa-manshurat, 1899, 158. 131.  Khedival order, Thi al-qi‘da 5, 1294, in Sami, Taqwim al-Nil, 1514. 132.  Khedival order, Rajab 12, 1282, in ibid., 630. chapter 6 1.  For a detailed account of the origins of the revolution, see Cole, Colonialism and Revolution in the Middle East. 2.  See Cohen, Law, Violence and Community in Classical Athens. Rather than view vengeance in opposition to the legal process, Cohen narrates a history of the legal process in Athens when legal institutions transformed and incorporated legal vengeance, rather than negating it. 3. Anupama Rao and Steven Pierce offer a parallel argument about the colonial civilizing mission that risked losing itself when it unleashed its own violence. See Pierce and Rao, eds., Discipline and the Other Body, 4: “The allegedly necessary violence of colonial government threatened to undermine the very distinction that justified it. Disciplining ‘uncivilized’ people through the use of force could often seem the only way to correct their behavior, but this was a problem: Violence also appeared to be the antithesis of civilized government.” 4. Pound, The Ideal Element in Law, 7. 5. In my discussion of a world split between factual violence and normative humanity, I draw on the work of Timothy Mitchell in his Colonising Egypt, in which he argues that modern power, and more specifically modern colonial power in Egypt, endangers a world that is experienced through an ontological distinction between physical reality and its representation. See Mitchell, “Egypt at the Exhibit,” in Colonising Egypt, 1–33. 6. In developing this argument about hybrids of humanity and inhumanity, ideals and facts, I draw on Bruno Latour’s chapter on “circulating references” in Pandora’s Hope, where 325

notes to chapter 6

he traces the material process of abstracting a future “sign” from the soil and elaborates on the material weight of this abstraction. 7. Saroufim, England and the Criminal Legislation of Egypt from 1882, 29. 8. No. 155, Earl Granville to the Earl of Dufferin, December 13, 1882, FO 633/49. 9.  Sir E. Malet to Cherif Pasha, October 1, 1882, FO 633/49. 10. Lieutenant-Colonel Sir E. Wilson to the Earl of Dufferin, December 30, 1882, FO 633/49. 11.  Sir E. Malet to Earl Granville, October 22, 1882, FO 633/49. 12. The accused were to receive notices of the offenses they were to be tried in connection with, as well as the evidence and other documentation. The counsel for defense had the right to be present at all hearings, to give their evidence, and to summon their own witnesses. The counsel for defense also agreed to “observe the greatest diligence in the procedure” and not to prolong it unduly. Should they do so, the commission had the right to declare the instruction closed. The court-martial was to meet seven days after the end of the instruction, and no delays were permitted unless there was an urgent necessity. The parties also agreed on the procedure for the debates to follow the instruction sessions. The sentence of the court was to be pronounced in public. The procedure was detailed in a letter from Sir E. Malet to Earl Granville, October 25, 1882, FO 633/49. 13. Ibid. 14. Letter from the Earl of Dufferin to Earl Granville, December 12, 1882, FO 633/49. 15. Mossowah is a large Egyptian port on the Red Sea. Political prisoners for whom imprisonment was deemed too harsh a penalty were occasionally sent to this island-town. In this case, the person exiled to Mossowah was a commander at the battle of Tel-al-Kabir under ‘Urabi. As he refused to plead, avail himself of a British lawyer’s services, or pay his parole, the government considered him too dangerous to be let loose as a normal exile. 16. Table showing all the determined punishments of political prisoners implicated in the rebellion, Enclosure no. 32, FO 633/49. 17. The Earl of Dufferin to Earl Granville, December 26, 1882, FO 633/49. 18. The reference here is to the decree issued to commute capital punishment to exile. See Mehemet Tewfik, Amnesty Decree, January 1, 1883, FO 633/49. 19. The Earl of Dufferin to Earl Granville, December 18, 1882, FO 633/49. 20. The Earl of Dufferin to Earl Granville, December 26, 1882, FO 633/49. 21. Ibid. 22. Decision of the Council of Ministers as to the prisoners’ property, n.d., FO 633/49. 23. Memorial to the Marquis of Salisbury, signed by Ahmed Arabi [‘Urabi], Mahmood Samy, Yacoob Samy, Toulba Ismet, Ali Fehmi, Abdul-Al-Helmi, and Mahmood Fehmy, n.d., FO 633/9. 24. The khedive’s opinion was transmitted by the president of the Council of Ministers, Riaz Pasha. See Memorandum by Riaz Pasha, received at the Foreign Office, July 9, 1890, FO 633/9. 25.  Sir Evelyn Baring to the Marquis of Salisbury, June 28, 1890, FO 633/9. 26. The board added that any change of climate required for the benefit of their health could be found within Ceylon itself. See “Principal Medical Officer to Colonial Secretary, Ceylon,” October 10, 1890, FO 633/9. 27.  Foreign Office to Colonial Office, November 15, 1890, FO 633/9. 28. The three exiles were Mahmood Samy, Toulba Ismet, and Yacoob Samy. 29. Lord Cromer to the Marquis of Salisbury, June 10, 1897, FO 633/66. 30. Memorial to the Right Honourable Lord Cromer, signed by Mahmood Samy, 326

notes to chapter 6

Toulba Ismet, and Yacoob Samy, May 17, 1897, in “Memorials from the Egyptian Exiles in Ceylon,” FO 633/66. 31. Memorial to Her Gracious Majesty Victoria of the United Kingdom of Great Britain and Ireland, Queen, Empress of India, signed by Mahmood Samy, Toulba Ismet, and ­Yacoob Samy, May 17, 1897, in “Memorials from the Egyptian Exiles in Ceylon,” FO 633/66. 32.  Sir Edward Malet to E. Granville, October 10, 1882, FO 633/49. 33.  Earl Granville to Sir E. Malet, October 26, 1882, FO 633/49. 34.  Sir E. Malet to Earl Granville, October 26, 1882, FO 633/49. 35.  “Report of the Sub-Commission for the Week Ending December 9, 1882,” signed by D. A. Cameron, FO 633/49. 36. The Earl of Dufferin to Earl Granville, December 11, 1882, FO 633/49. 37. The Earl of Dufferin to Earl Granville, April 28, 1883, FO 633/49. 38. Ibid. 39. Al-Rafi‘i, Mustafa Kamil ba‘ith al-harakah al-wataniyya, 202. 40. Lord Cromer to Edward Grey, June 25, 1906, FO 371/66. 41.  Evelyn Baring to Rosebery, March 29, 1886, FO 141/232/103. 42.  High Order, February 25, 1895. 43. Badrawi, Political Violence in Egypt 1910–1924, 23. 44. Mr. Findlay to Sir Edward Grey, June 22, 1906, FO 371/66. 45. Ibid. 46. Mr. Findlay to Sir Edward Grey, June 27, 1906, FO 371/66. 47.  Sir Edward Grey to Mr. Findlay, June 27, 1906, FO 371/66. 48. Mr. Findlay to Sir Edward Grey, June 28, 1906, FO 371/66. 49. Mr. Findlay to Sir Edward Grey, June 30, 1906, FO 371/66. 50. Lord Cromer, “Egypt No. 3 (1906),” 20–25, FO 371/247. 51.  Parliamentary Debates, Fourth Series, vol. CLIX, cols. 342–343, 363, 956, 1111– 1114, 1619; vol. CLX, cols. 286, 288, 289, 310, 317, 1054–1057, 1305; vol. CLXI, 737, June 21–July 23, 1906; referenced in Badrawi, Political Violence, 23. 52.  Le Figaro, July 11, 1906; English translation published in Sonbol, trans. and ed., The Last Khedive of Egypt, 165. 53. Ibid. 54. M. R. Lehmann, August 26, 1907, FO 371/248. 55. Letter to Sir Edward Grey, October 9, 1907, FO 371/248. 56. New Reform Club to Edward Grey, November 25, 1907, FO 371/248. 57.  Sir Eldon Gorst to Sir Edward Grey, December 23, 1907, FO 371/248. 58.  Sir Eldon Gorst to Sir Edward Grey, January 7, 1908, FO 371/1363. 59. Ministry of the Interior, “Manshur . . . bi-sha’in ma yajib ijra’ahu ma‘ man yata‘ada min al-ahlin ‘ala ahad min al-‘urubbiyyin” [Circular . . . Regarding Natives Attacking Europeans], April 19, 1885, Qararat wa-manshurat, 1885, 66. 60. The charges were initially pressed against twenty Egyptians. At the first hearing, the parquet withdrew its charges against seven and restricted its charges to thirteen defendants. 61. The relevant articles were 67, 68, and 220 of the 1883 Penal Code. 62. Criminal Appeal Parquet no. 315/1994, General Listing no. 312/1895, Parquet v. Muhammad ‘Uthman Abu Jalanbu et al., Court of Appeal, Cairo, Al-Huquq 10, 1895, 92. In the appeal, only seven of the thirteen were defendants. Sentences ranged from six months to two years. 63. Mr. Findlay to Sir Edward Grey, July 7, 1906, FO 371/67. 64. Lord Cromer to Sir Edward Grey, October 24, 1906, FO 371/68. 327

notes to chapter 6

65. Ibid. 66. Kirchheimer, Political Justice, 17. 67. Lord Cromer to Sir Edward Grey, October 24, 1906, FO 371/68. 68. Ibid. 69. Lord Cromer to Sir Edward Grey, December 28, 1906, FO 371/68. 70.  See, for example, Letter from G. M. Bullock to Lord Cromer, December 29, 1906. See also a further letter, December 28, 1908, FO 371/68: “The issue of orders interfering with local civil Government by a foreign power is not recognized; and if any order were issued directing the General Officer to interfere in special cases, it would mean that the British Government, and not the General Officer, was intervening in the civil government of Egypt, and for this I do not think there is any precedent. Undoubtedly, the war office could issue elaborate instructions for the guidance of the General Officer as to the manner of acting, should an emergency arise; but in the end it is the General Officer alone who is responsible, or who has the right to act; and if the Government intervene, they act, as far as I know, contrary to the customs of nations.” 71. Law Officers of the Crown to Sir Edward Grey, February 6, 1907, FO 371/141/480/28. 72.  Sir Edward Grey to Cromer, March 15, 1907, FO 371/141/480/28. 73.  From Amos to the First Secretary, September 20, 1921, FO 141/480/28. 74. Letter from Colonel A.A.G. to the headquarters in the Alexandria Area, November 25, 1921, FO 141/480/28. The two men petitioned the high commissioner again, stating that they were French and Italian subjects, respectively, and that their respective consuls should be involved in the process. See Petition to the Governor of Alexandria Prison signed by Mohamed Hassan, December 12, 1921, and Petition to the French Consulate signed by Ibrahim Isma‘il Naga, FO 141/480/28. The high commissioner consequently postponed the execution of the sentence and sought the opinion of the judicial advisor on the matter. The acting judicial advisor replied that, in view of the fact that the sentences were passed under martial law, the question of the nationality of the accused was immaterial. Martial law, he added, “applies to all the inhabitants of Egypt without distinction, and a Military Court is not concerned with the nationality of any person accused.” See, From the Acting Judicial Advisor to The Residency, December 8, 1921, FO 141/480/28. 75. Badrawi, Political Violence, 120–121. 76.  From the Governor of St. Helena to the Secretary of State for the Colonies, September 22, 1915, FO 368/2357. 77. Minister of Justice, “Mudhakkira idahiyya ‘an qanun al-tajamhur” [Memo Explaining the Assembly Law], Al-Waqai‘ al-misriyya, October 18, 1914, 3302. 78. Marsot, Egypt’s Liberal Experience, 63. 79. Berque, Egypt, 323. 80. This article was adapted from Article 118 of the Italian Penal Code. It stipulated a punishment of up to six months imprisonment or a fine of E£100 for a worker who participated in a strike that endangered the lives of human beings, their health, or their security, or a strike that either did or could have resulted in conflict. 81. Note by M. S. Amos, December 2, 1924, FO 141/793/2. 82.  Viscount Allenby to Austen Chamberlain, Foreign Office, December 9, 1924, FO 141/793/2. 83. Memo by Mr. Percival with regards to martial law, n.d., FO 141/793/2. 84. The acting judicial advisor added that he could see three cases in which martial law could be justified: first, a murder campaign, which would require special preventive measures in the form of arrests and detention of suspects and the trial of accused persons 328

notes to chapter 6

before special courts, on the assumption that the Egyptian government could not be relied on; second, some form of passive resistance obliging the temporary taking of control of the civil government of the country; and third, riot, disorder, or rebellion necessitating active military measures, as occurred in 1919. The first case could be dealt with in the regular national courts, and, if need be, British judges could be reintroduced in the Court of Appeal. In the second case a declaration of martial law might be desirable. In the third case, it might be possible to limit martial law to the afflicted area. See Memo by Acting Judicial Advisor, n.d., FO 141/793/2. 85. Brown, The Rule of Law in the Arab World, 46. 86. Ibid., 48. 87. Latour, We Have Never Been Modern. 88. Ministry of the Interior, “Manshur bisha’in al-intibah bi-‘adam tamakkun al-ashqiya’ min al-sattuw ‘ala qitarat al-waburat” [Circular Concerning the Prevention of Bandits Robbing the Trains], March 5, 1882, Qararat wa-manshurat, 1882, 138. 89.  Brown, “Brigands and State Building,” 258. 90.  See “Kitab min sa‘adat mudir Garga” [Letter from the Governor of Garga], February 24, 1890, Qararat wa-manshurat, 1890, 157–161. The governor wrote to the minister of the interior, detailing what happened during the arrest of the bandit Ziad and stating the facts of the matter. 91.  See a letter from the agent of the secret administration of Upper Egypt, March 18, 1888: “It became known to us from two bandits who were arrested, that the bandits were still living in the said locality, and their number amounts to six hundred persons, and after the arrival of Al-Hayman, one hundred fifty additional persons joined them. More people are still joining them, and they intend to attack any place.” “Warid min mandub al-idarah al-siriyya” [Incoming Letter from the Secret Administration Agent], March 18, 1888, Ministry of the Interior, Police Division, December 1884–June 16, 1923, DWQ, Majlis al-Nuzzar, Nazzarat al-Dakhiliyya, 8/4/B. See an additional report giving the locality where bandits were present: “Dabt al-ashqiyya’ . . .” [Capturing Bandits . . . ], February 26, 1888, Ministry of the Interior, Police Divison, December 1884–June 16, 1923, DWQ, Majlis al-Nuzzar, Nazzarat al-Dakhiliyya, 8/4/B. 92. Othman Badran, “Taqrir marfu‘ li-dawlatihi nazir al-dakhiliyya” [Report to the Minister of the Interior], October 17, 1888, Qararat wa-manshurat, 1888, 499. 93.  Here I do not examine the political and social nature of bandits’ activities. Nor do I consider the bandits as a social group—a consideration that would follow from Eric Hobsbawm’s theorization of bandits as “primitive rebels,” who “are not regarded as criminals by public opinion.” Hobsbawm, Bandits, 7. ‘Afaf Marsot attempted to implement the Hobsbawmian model to the case of Egyptian bandits; see Marsot, A Short History of Modern Egypt, 78. 94. The decree was issued on October 14, 1884. 95.  See, for example, “Report from the Governor of Qailoubiya to the Ministry of the Interior,” October 21, 1888, Qararat wa-manshurat, 1888, 559. 96.  Brown, “Brigands and State Building,” 258. 97. In accordance with Articles 289, 352, and 210 of the 1883 Penal Code. 98.  Brown, “Brigands and State Building,” 271–278. 99.  For a discussion of legal pluralism and governance (in contradistinction to government, which would assume a unified institutional understanding of the work of governance), see Hunt, “Law as a Constitutive Mode of Regulation,” in Explorations in Law and Society. 100. In Egypt this structure of rule is called dual rule. However, it could be also com329

notes to chapter 6

pared to indirect colonial rule, as discussed by Mamdani in his work on colonial Africa; see Mamdani, Citizen and Subject. 101. Milner, England in Egypt, 279–280. 102. Malcolm McIlwraith, Judicial Advisor, “Taqrir ‘am 1899” [Report for 1899] (Arabic translation), Qararat wa-manshurat, March 1900, 108–155, at 122–124. 103. Malcolm McIlwraith, Judicial Advisor, “Taqrir ‘am 1900” [Report for 1900] (Arabic translation), Al-Huquq 16, 1901, 86–88, 92–95, 101–104, 108–110, 116–119, at 102. 104. In the case of theft by habitual criminals, the increase was from 289 cases in 1904 to 459 in 1908; in that of destruction of crops, the increase was from 243 cases in 1904 to 284 in 1908. 105. Mr. Graham to Sir Edward Grey, September 5, 1909, FO 371/663. 106.  Sir Eldon Gorst to Sir Edward Grey, July 10, 1909, FO 371/663. 107. Ibid. 108.  See ‘Abdal-Ghaffar, Al-Jarima fi al-rif al-misri, 280–281. ‘Abdal-Ghaffar covered the debates in the Egyptian press. 109. Ibid., 285–286. 110.  Sir Eldon Gorst to Sir Edward Grey, November 6, 1906, FO 371/663. 111. Mr. Graham to Sir Edward Grey, August 29, 1909, FO 371/663. 112. Mr. Graham to Edward Grey, October 8, 1909, FO 371/663. 113. Muhammad ‘Abdal-Jawwad, “Mahkamat al-nafi al-idari fi al-fayyum” [The Administrative Exile Court in al-Fayyum], Al-Mu’ayyad, August 23, 1909, cited in ‘AbdalGhaffar, Al-Jarima fi al-rif al-misri, 286. 114. Report by Advisor to Egyptian Ministry of the Interior, A. C. Chitty, November 5, 1909, FO 371/633. 115.  From King Herman to the Earl of Crewe, Secretary of State for the Colonies, September 16, 1909, FO 371/663. 116. Report by Advisor to Egyptian Ministry of the Interior, A. C. Chitty, November 5, 1909, FO 371/633. 117.  For Cover’s collected writings on law’s violence, see Minow, Ryan, and Sarat, eds., Narrative, Violence and the Law. 118.  Fitzpatrick, “Why Law Is Also Non-violent,” 166. 119. Ibid., 167. 120.  Foucault, “Nietzsche, Genealogy, History,” 139–164.

330

Bibliography

a rchiv es Centre d’Études et de Documentation Économique, Juridique et Sociale, Cairo. ‘Aziz Khanki Papers. Dar al-Kutub al-Misriyya [Egyptian National Library], Cairo. Dar al-Watha’iq al-Qawmiyya [Egyptian National Archives], Cairo. Majlis al-Nuzzar. Majlis al-Dirasat al-Qada’iyya, Wizarat al-‘Adl [Council for Judicial Studies, Ministry of Justice]. Cairo Homicide Cases. National Archives, Kew Gardens, London. n e w spa p e r s a n d p e r iodic a l s Al-Ahram Al-Hilal Majmu‘at al-watha’iq al-rasmiyya Misr al-fatat Qararat wa-manshurat Al-Waqai‘ al-misriyya Law Journals and Law Periodicals Collection of Circulars of the Committee for Judicial Surveillance, 1914–1936 Al-Huquq Official Bulletin of the Native Tribunals Al-Qada’ coll ec t ions i n a r a bic Gellat, Philippe. Al-Qamus al-‘am lil-idara wal-qanoun [General Dictionary on the Administration and the Law], vol. 7: Kitab al-ta‘liqat al-qada’iyya ‘ala qawanin almahakim al-misriyya: al-qism al-rabi‘, qanun al-‘uqubat [Judicial Commentaries on the Laws of Egyptian Courts: Part Four, the Penal Code]. Cairo: Matba‘at al-Ma‘arif, 1908. Al-Kitab al-dhahabi lil-mahakim al-ahliyya [The Golden Book for the Native Courts], vol. 1 (1883–1933). Cairo: Bulaq Press, 1937. Sami, Amin. Taqwim al-nil wa-asama’ man tawallaw amr Misr wa-muddat hukmihim ‘alayha wa-mulahazat ta’rikhiyya ‘an ahwal al-khilafah al-‘amma wa-shu’un Misr al-khassa [The Calendar of the Nile, the Names of Egypt’s Rulers, the Period of Their Rule, and Historical Comments on the General Conditions of Rule and Egypt’s Particular Affairs], vol. 3 (1264–1289). Cairo: Matba‘at Dar al-Kutub, 1936. l aw t e x t b o o k s i n a r a b i c ‘Abdullah, Salama. Muqaddimat al-qawanin [Introduction to the Laws], vol. 1. Cairo: Matba‘at Ra‘amsis, 1913.

331

bibliogr a ph y

Amin Beik, Ahmad. Sharh qanun al-‘uqubat al-ahli: al-qism al-khass [Clarifying the National Penal Code: The Specific Part]. Cairo: Matba‘at Dar al-Kutub al-Misriyya, 1924. ‘Assaf, Yusif. Mir’at al-Majallah [The Majalla’s Mirror]. Cairo: Al-Matba‘a al-‘Umumiyya, 1894. Bustani, Amin Ifram al-. Sharh qanun al-‘uqubat al-misri [Interpretation of the Egyptian Penal Code]. Cairo: Matba‘at al-Mahrusa, 1894. Khalil, ‘Abd al-‘Aziz Bayk. Ithbat al-huquq al-madaniyya [Proving Civil Rights]. Alexandria: Matba‘at al-Ahram, 1899. Mursi, Muhammad Kamil Bayk, and Sayyid Mustafa Bayk. Usul al-qawanin: ma‘ tatbiqat min al-qanun al-misri wa-ba‘d al-qawanin al-ukhra [Principles of Law: Including Applications from Egyptian Law and Other Laws]. Cairo: Al-Matba‘a al-Rahmaniyya, 1923. Mustafa, ‘Umar. Al-Wajiz fi al-qanoun al-jina’i [The Basics of Criminal Law]. Cairo: Matba‘at al-Sha‘b, 1904–1907. Nash’at Beik, Ahmad. Sharh qanun tahqiq al-jinayyat [Interpretation of the Penal Procedure Law]. Cairo: Matba‘at al-I‘timad, 1925. Qadri, Muhammad Pasha. Kitab murshid al-hayran ila ma‘rifat ahwal al-insan [Guidebook for the Perplexed on Knowing the Conditions of the Human]. 2nd ed. Bulaq: Al-Matba‘a al-Amiriyya, 1891. Ra’fat, Muhammad Afandi. Usul al-qawanin [The Sources of the Laws]. Cairo: Matba‘at Jaridat al-Islam, 1897/98. Safwat, Ahmad. Muqaddimat al-qanun [Introduction to the Law]. 1st ed. Cairo: Matba‘at al-Qahira, 1924. Zaghlul, Ahmad Fathi. Al-Muhama [Lawyering]. Cairo: Matba‘at al-Ma‘arif, 1900. books a nd a rticles in a r a bic a nd english ‘Abbas, Ra’uf, and Asim al-Disuqi. Kibar al-mullak wal-fallahin fi Misr, 1837–1952 [Large Landowners and Peasants in Egypt, 1837–1952]. Cairo: Dar Qaba’ li-l-Tiba‘a wa-­ ­­ l-Nasher wa-l-Tawzi‘, 1998. ‘Abd al-Wahid, Fatima ‘Alam al-Din. Tarikh al-‘ummal al-zira ‘iyyun fi Misr: 1914–1952 [The History of Rural Laborers in Egypt: 1914–1952]. Cairo: Al-Hayi’a al-Misriyya al-‘Amma lil-Kitab, 1997. ‘Abdal-Ghaffar, Nady. Al-Jarima fi al-rif al-misri, 1882–1956 [Crime in the Egyptian Countryside, 1882–1952]. MA thesis, Zagazig University, Egypt, 2003. Abel, Richard, ed. The Politics of Informal Justice. 2 vols. New York: Academic Press, 1982. Abou El Fadl, Khaled. Speaking in God’s Name: Islamic Law, Authority and Women. Oxford: Oneworld, 2001. Abu an-Nur, Sami, comp. Salib Pasha Sami. Cairo: Madbouli, 1999. Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press, 1998. ———. Means without End: Notes on Politics. Translated by Vincenzo Binetti and Cesare Casarino. Minneapolis: University of Minnesota Press, 2000. ———. The Open. Stanford, CA: Stanford University Press, 2004. ———. State of Exception. Translated by Kevin Attell. Stanford, CA: Stanford University Press, 2005. Agrama, Hussein. “Tradition, Authority, Ethics: Toward an Anthropology of the Fatwa.” American Ethnologist 37, no. 1 (2010): 2–18. Ahmad, Leila. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven, CT: Yale University Press, 1993. 332

bibliogr a ph y

Alexander, G. Glover. “Modern Egyptian Criminal Law.” Journal of Comparative Legislation and International Law 7, no. 4 (1925): 228–237. Amin, Qasim. “The Liberation of Women” and “The New Woman”: Two Documents in the History of Egyptian Feminism. Translated by Samiha Sidhom Peterson. Cairo: American University in Cairo Press, 2000. Anghie, Anthony. Imperialism, Sovereignty, and the Making of International Law. Cambridge: Cambridge University Press, 2004. Arendt, Hannah. Between Past and Future. New York: Penguin, 1977. ———. The Human Condition. Chicago: University of Chicago Press, 1998. ———. Imperialism: Part Two of the Origins of Totalitarianism. San Diego: Harcourt Brace, 1968. ———. On Violence. Orlando, FL: Harvest, 1970. ———. The Promise of Politics. New York: Schocken, 2007. Asad, Talal, ed. Anthropology and the Colonial Encounter. Amherst, NY: Humanity Books, 1973. ———. “Conscripts of Western Civilization.” In Dialectical Anthropology: Essays in Honor of Stanley Diamond, vol. 1: Civilization in Crisis: Anthropological Perspectives, edited by Christine Ward Gailey, 333–351. Tallahassee: University of Florida Press, 1992. ———. Formations of the Secular: Christianity, Islam, Modernity. Stanford, CA: Stanford University Press, 2003. ———. “From the History of Colonial Anthropology to the Anthropology of Western Hegemony.” In The Anthropology of Politics: A Reader in Ethnography, Theory and Critique, edited by Joan Vincent, 133–142. Oxford: Blackwell, 2002. ———. “Thinking about Law, Morality, and Religion in the Story of Egyptian Modernization.” Special issue, JISMOR 1 (2005): 13–24. ‘Ashmawi, Sayyid. Al-Fallahun wa-l-sulta: ‘ala du’ al-haraka al-fallahiyya al-misriyya, 1919– 1999 [The Peasants and the Authority: In Light of the Egyptian Peasant Movement, 1919–1999]. Cairo: Mirette, 2000. Ashworth, John, David Brion Davis, Thomas Haskell, and Thomas Bender. Capitalism and Abolitionism as a Problem in Historical Interpretation. Berkeley: University of California Press, 1992. Attar, Farid Ud-Din. Mantiq al-tayr [The Conference of the Birds: A Philosophical Religious Poem in Prose]. New York: Routledge & Kegan Paul, 1974. Austin, John. The Province of Jurisprudence Determined. London: J. Murray, 1861 [1832]. Badir, Murteza. “Fikh to Law: Secularization through Curriculum.” Islamic Law and Society 11, no. 3 (2004): 378–401. Badrawi, Malak. Political Violence in Egypt 1910–1924: Secret Societies, Plots and Assassinations. Richmond, UK: Curzon Press, 2000. Baer, Gabriel. A History of Landownership in Modern Egypt, 1800–1950. Oxford: Oxford University Press, 1962. ———. Studies in the Social History of Modern Egypt. Chicago and London: University of Chicago Press, 1969. ———. “Tanzimat in Egypt—The Penal Code.” Bulletin of the School of Oriental and African Studies 26, no. 1 (1963): 29–49. ———. “The Transition from Traditional to Western Criminal Law in Turkey and Egypt.” Studia Islamica, no. 45 (1997): 139–158. Balls, W. Lawrence. The Cotton Plant in Egypt: Studies in Physiology and Genetics. London: Macmillan, 1912. 333

bibliogr a ph y

———. The Development and Properties of Raw Cotton. London: A.&C. Black, 1915. ———. Egypt of the Egyptians. London: Sir Isaac Pittman & Sons, 1920. Beccaria, Cesare. An Essay on Crimes and Punishments. Edited by Adolph Caso. Boston: Branden Books, 1983. Beckert, Sven. “Emancipation and Empire: Reconstructing the Worldwide Web of Cotton Production in the Age of American Civil War.” American Historical Review 1, no. 5 (2004): 1405–1438. Beinin, Joel. Workers and Peasants in the Modern Middle East. Cambridge: Cambridge University Press, 2001. Benjamin, Walter. “Critique of Violence.” In Selected Writings, vol. 1, edited by Marcus Bullock and Michael Jennings, translated by Edmund Jephcott, 236–252. Cambridge, MA: Harvard University Press, 1999. ———. “On the Concept of History.” In Walter Benjamin: Selected Writings: 1938–1940, vol. 4, edited by Howard Eiland and Michael W. Jennings, translated by Edmund Jephcott et al., 389–400. Cambridge, MA: Belknap Press of Harvard University Press, 2003. Bentham, Jeremy. Introduction to the Principles of Morals and Legislation. Oxford: Clarendon Press, 1879 [1823]. Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge and New York: Cambridge University Press, 2002. ———. A Search for Sovereignty: Law and Geography in European Empires, 1400–1900. Cambridge: Cambridge University Press, 2010. Berman, Marshal. All That Is Solid Melts into Air: The Experience of Modernity. New York: Verso, 1982. Berque, Jacques. Egypt: Imperialism and Revolution. London: Faber & Faber, 1972. Bishri, Tariq al-. Al-Hiwar al-islami al-‘ilmani [The Islamic Secular Dialogue]. Cairo: Dar al-Shorouk, 1996. ———. Al-Wad‘ al-qanuni bayna al-shari‘a al-islamiyya wal-qanun al-wad‘i. Cairo: Dar al-Shorouk, 1996. Bourdieu, Pierre. Distinctions: A Social Critique of the Judgment of Taste. Translated by Richard Nice. Cambridge, MA: Harvard University Press, 1984. ———. “The Force of Law: Toward a Sociology of the Juridical Field.” Hastings Law Journal 38, no. 5 (1987): 805–853. ———. “Rethinking the State: Genesis and Structure of the Bureaucratic Field.” In State/ Culture, edited by George Steinmetz, 53–75. Ithaca, NY: Cornell University Press, 1999. Bowler, Peter, and Iwan Rhys Morus. Making Modern Science: A Historical Survey. Chicago and London: University of Chicago Press, 2005. Bowring, Sir John. Report on Egypt, 1823–1838, under the Reign of Mohamed Ali. London: Trade Exploration Ltd., 1998. Breisach, Ernst. Historiography: Ancient, Medieval and Modern. Chicago: University of Chicago Press, 2007. Brewer, John, and John Styles, eds. An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries. New Brunswick, NJ: Rutgers University Press, 1980. Brigham, John. The Constitution of Interests: Beyond the Politics of Rights. New York: New York University Press, 1996. ———. Property and the Politics of Entitlement. Philadelphia: Temple University Press, 1990. Brinton, Jasper. The Mixed Courts of Egypt. New Haven, CT: Yale University Press, 1968. Brown, Nathan. “Brigands and State Building: The Invention of Banditry in Modern Egypt.” Comparative Studies in Society and History 32, no. 2 (1990): 258–281. 334

bibliogr a ph y

———. “Law and Imperialism: Egypt in Comparative Perspective.” Law and Society Review 29, no. 1 (1995): 103–126. ———. Peasant Politics in Modern Egypt: The Struggle against the State. New Haven, CT: Yale University Press, 1990. ———. The Rule of Law in the Arab World: Courts in Egypt and the Gulf States. Cambridge: Cambridge University Press, 1997. ———. “Who Abolished Corvée Labor and Why?” Past and Present 144 (1994): 116–137. Bruner, Jose. “Modern Times: Law, Temporality and Happiness in Hobbes, Locke, and Bentham.” Theoretical Inquiries in Law 8 (2007): 105–138. Butler, William Francis. Autobiography. New York: Charles Scribner’s Sons, 1911. Calcutta Society for the Prevention of Cruelty to Animals. To the Children of Calcutta, on Cruelty. Calcutta: Spink & Co., 1872. Campbell, Colin. “Detraditionalization, Character, and the Limits to Agency.” In Detraditionalization, edited by Paul Hellas, Scott Lasch, and Paul Morris, 149–172. Oxford: Blackwell, 1996. Cannon, Byron. Politics of Law and the Courts in Nineteenth Century Egypt. Salt Lake City: University of Utah Press, 1988. ———. “Social Tensions and the Teaching of European Law in Egypt before 1900.” History of Education Quarterly 15, no. 3 (1975): 299–315. Carr, David. Time, Narrative and History. Bloomington: Indiana University Press, 1991. Cesaire, Aimé. Discourse on Colonialism. New York: Monthly Review Press, 1972. Chanock, Martin. Law, Custom, and Social Order. Cambridge: Cambridge University Press, 1985. Chatterjee, Partha. The Nation and Its Fragments: Colonial and Postcolonial Histories. Princeton, NJ: Princeton University Press, 1993. Cheah, Pheng. Inhuman Conditions: On Cosmopolitanism and Human Rights. Cambridge, MA: Harvard University Press, 2006. Chirol, Valentine. The Egyptian Problem. London: Macmillan, 1920. Clifford, James. Person and Myth: Maurice Leenhardt in the Melanesian World. Durham, NC: Duke University Press, 1992. Cohen, David. Law, Violence and Community in Classical Athens. Cambridge: Cambridge University Press, 1995. Cole, Juan. Colonialism and Revolution in the Middle East: Social and Cultural Origins of Egypt’s Urabi Movement. Cairo: American University in Cairo Press, 1999. Colla, Elliot. Conflicted Antiquities, Egyptology, Egyptomania, Egyptian Modernity. Durham, NC: Duke University Press, 2007. Comaroff, John L., and Jean Comaroff, eds. Law and Disorder in the Postcolony. Chicago: University of Chicago Press, 2006. ———. Of Revelation and Revolution, vol. 2: The Dialectics of Modernity on a South African Frontier. Chicago: University of Chicago Press, 1997. Conklin, Alice. The Civilizing Mission: The Republican Idea of Empire in France and West Africa, 1895–1930. Stanford, CA: Stanford University Press, 1997. Constable, Marianne. Just Silences: The Limits and Possibilities of Modern Law. Princeton, NJ: Princeton University Press, 2005. ———. The Law of the Other: The Mixed Jury and the Changing Conceptions of Citizenship, Law and Knowledge. Chicago: University of Chicago Press, 1994. Cooper, Frederick. Colonialism in Question: Theory, Knowledge, History. Berkeley: University of California Press, 2005. 335

bibliogr a ph y

Cotterrell, Roger. “Common Law Approaches to the Relationship between Law and Morality.” Ethical Theory and Moral Practice 3, no. 1 (2000): 9–26. Cromer, Earl of [Lord]. Modern Egypt. Vol. 2. London: Macmillan, 1908. ———. Political and Literary Essays. 2nd series. London: Macmillan, 1908–1913. ———. “What Is Slavery?” The Spectator (1914). Reprinted in Political and Literary Essays, 270–276. London: Macmillan, 1914. Curtin, Philip. The Rise and Fall of the Plantation Complex. Cambridge: Cambridge University Press, 1990. Darraj, Faisal. Al-Hadatha al-mutaqahqira [Modernity in Retrieval]. Ramallah: Muwatin, 2005. Darwin, Charles. The Origin of Species. Oxford: Oxford University Press, 1998. Daston, Lorraine, and Fernando Vidal, eds. The Moral Authority of Nature. Chicago: University of Chicago Press, 2004. Derrida, Jacques. “The Force of Law: The ‘Mystical Foundation of Authority.’” In Acts of Religion, edited by Gil Anidjar, 228–298. London: Routledge, 2002. ———. Of Grammatology. Translated by Gayatri Spivak. Baltimore: Johns Hopkins University Press, 1998. ———. Specters of Marx: The State of the Debt, the Work of Mourning, and the New International. Translated by Peggy Kamuf. New York: Routledge, 1994. Di-Capua, Yoav. Gatekeepers of the Arab Past: Historians and History Writing in Twentieth Century Egypt. Berkeley: University of California Press, 2009. Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1961 [1885]. Dunlap, Thomas R. Nature and the English Diaspora. Cambridge: Cambridge University Press, 1999. El Shakry, Omnia. The Great Social Laboratory. Stanford, CA: Stanford University Press, 2007. Esmeir, Samera. “Of Legal Modernity/Coloniality: Itineraries of Power in Colonial Egypt.” Article in progress. Essig, E. O. “A Sketch History of Entomology.” Osiris 2 (1936): 80–123. Euben, Roxanne. Journeys to the Other Shore: Muslim and Western Travelers in Search of Knowledge. Princeton, NJ: Princeton University Press, 2006. Evans, E. P. The Criminal Prosecution and Capital Punishment of Animals. London: Faber & Faber, 1906. Ewald, François. “Norms, Discipline and the Law.” Representations 30 (Spring 1999): 138–161. Fahmy, Khaled. “Justice, Law and Pain in Khedival Egypt.” In Standing Trial: Law and the Person in Modern Middle East, edited by Baudouin Dupret, 85–115. New York: I. B. Tauris, 2004. ———. “The Police and the People in Nineteenth Century Egypt.” In “State, Law and Society in Nineteenth Century Egypt,” special issue, Die Welt des Islams 39, no. 3 (November 1999): 340–377. Fahmy, Khaled, and Rudolph Peters. “The Legal History of Ottoman Egypt.” Islamic Law and Society 6, no. 2 (1999): 224–271. Fanon, Frantz. The Wretched of the Earth. Translated by Richard Philcox. New York: Grove Press, 1963. Farber, Paul Lawrence. Finding Order in Nature: The Naturalist Tradition from Linnaeus to E. O. Wilson. Baltimore: Johns Hopkins University Press, 2000. Farmer, Lindsay. Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present. Cambridge: Cambridge University Press, 1997. 336

bibliogr a ph y

Feldman, Ilana, and Miriam Ticktin, eds. In the Name of Humanity: The Government of Threat and Care. Durham, NC: Duke University Press, 2010. Fischer-Tinâe, Harald, and Michael Mann. Colonialism as Civilizing Mission: Cultural Ideology in British India. London: Anthem Press, 2004. Fitzpatrick, Peter. “Bare Sovereignty: Homo Sacer and the Insistence of Law.” Theory and Event 5, no. 2 (2001); http://muse.jhu.edu/journals/theory_and_event/v005. ———. Modernism and the Grounds of Law. Cambridge: Cambridge University Press, 2001. ———. The Mythology of Modern Law. London: Routledge, 1992. ———. “Why Law Is Also Non-violent.” In Law, Violence, and the Possibility of Justice, edited by Austin Sarat, 142–173. Princeton, NJ: Princeton University Press, 2001. Foner, Eric. Nothing but Freedom: Emancipation and Its Legacy. Baton Rouge: Louisiana State University Press, 1983. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1979. ———. “Governmentality.” In The Foucault Effect, edited by Graham Burchell, Colin Gordon, and Peter Miller, 102–104. Chicago: University of Chicago Press, 1991. ———. The History of Sexuality. Translated by Robert Hurley. New York: Pantheon, 1978. ———. Language, Counter-Memory, Practice. Ithaca, NY: Cornell University Press, 1980. ———. The Order of Things: An Archeology of the Human Sciences. New York: Vintage Books, 1994. ———. Society Must Be Defended: Lectures at the Collège de France, 1975–1976. Translated by David Macey. London: Penguin, 2003. Fudge, Erica. Brutal Reasoning: Animals, Rationality, and Humanity in Early Modern England. Ithaca, NY: Cornell University Press, 2006. Garland, David. Punishment and Welfare: A History of Penal Strategies. Aldershot, UK: Gower, 1987. Garraud, R. Traité théorique et pratique du droit pénal français. 3rd ed. Paris: Recueil Sirey, 1913. Gasper, Michael. The Power of Representation: Publics, Peasants, and Islam in Egypt. Stanford, CA: Stanford University Press, 2009. Geuss, Raymond. History and Illusion in Politics. Cambridge: Cambridge University Press, 2001. Glenn, Patrick. “The National Legal Tradition.” Electronic Journal of Comparative Law 11, no. 3 (December 2007); http://www.ejcl.org. Goadby, Frederick. Commentary on Egyptian Criminal Law and the Related Criminal Law of Palestine, Cyprus and Iraq. Cairo: Government Press, 1924. ———. Introduction to the Study of Law: A Handbook for the Use of Egyptian Law Students. London: Butterworth, 1914. Goldberg, David Theo. The Racial State. Oxford: Blackwell, 2002. Goldberg, Ellis. Trade, Reputation, and Child Labor in Twentieth Century Egypt. New York: Palgrave Macmillan, 2004. Goodrich, Peter. “Specula Laws: Image, Aesthetic and Common Law.” Law and Critique 2, no. 2 (1991): 234–254. Goodrich, Peter, Lior Barshack, and Anton Schutz, eds. Law, Text, Terror. London: RoutledgeCavendish, 2006. Greenberg, David. “Marx and Engels on Crime and Punishment.” In Crime and Capitalism, edited by David Greenberg, 37–56. Palo Alto, CA: Mayfield, 1981. Gregory, Derek. The Colonial Present: Afghanistan, Palestine, Iraq. Oxford: Blackwell, 2004. 337

bibliogr a ph y

Guha, Ranajit. Dominance without Hegemony: History and Power in Colonial India. Boston: Harvard University Press, 1998. Hallaq, Wael. “Consideration of the Function and Character of Sunni Legal Theory.” Journal of the American Oriental Society 104, no. 4 (October–December, 1984): 679–689. ———. Shari‘a: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009. ———. “Usul al-Fiqh: Beyond Tradition.” Journal of Islamic Studies 3, no. 2 (1992): 172–202. Haraway, Donna. When Species Meet. Minneapolis: University of Minnesota Press, 2008. Harrington, Christine. “Delegalization Reform Movements: A Historical Analysis.” In The Politics of Informal Justice, edited by Richard Abel, 35–71. New York: Academic Press, 1981. ———. “Outlining a Theory of Legal Practice.” In Lawyers in a Postmodern World: Translation and Transgression, edited by Maureen Cain and Christine Harrington, 49–69. New York: New York University Press, 1994. ———. “Regulatory Reform: Creating Gaps and Making Markets.” Law and Policy 10 (1988): 293–316. ———. Shadow Justice: The Ideology and Institutionalization of Alternatives to Court. Westport, CT: Greenwood Press, 1985. Harrington, Christine, and Ziya Umut Turem. “Accounting for Accountability in Neoliberal Regulatory Regimes.” In Public Accountability: An Epistemic Mapping, edited by Michael Dowdle, 195–219. New York: Cambridge University Press, 2006. Harrington, Christine, and Barbara Yngvesson. “Interpretive Sociological Research.” Law and Social Inquiry 15 (1990): 135–148. Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961. Hay, Douglas. “Property, Authority, and the Criminal Law.” In Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, edited by Douglas Hay, 17–63. New York: Pantheon, 1975. Hayek, Friedrich A. The Constitution of Liberty. Chicago: Gateway Edition, 1972. Hexter, J. H. “The Rhetoric of History.” History and Theory 6, no. 1 (1967): 3–13. Hilal, ‘Imad. “Irhasat la’ihat zira‘at al-fallah: al-tashri‘ al-jana’i fi misr, 1805–1830” [The Beginnings of the Program of Peasant Cultivation: Penal Legislation in Egypt]. AlRuznamah 4 (2006): 249–304. Hill, Thomas E. “Humanity as an End in Itself.” Ethics 91, no. 1 (1980): 84–99. Hirschkind, Charles. The Ethical Soundscapes: Cassette Sermons and Islamic Counterpublics. New York: Columbia University Press, 2007. Hobsbawm, Eric. Bandits. Harmondsworth, UK: Penguin, 1985. Holt, Thomas. The Problem of Freedom: Race, Labor, and Politics in Jamaica and Britain, 1832–1938. Baltimore: Johns Hopkins University Press, 1992. Hoyle, Mark. The Mixed Courts of Egypt. London: Graham & Totman, 1991. Humphries, Drew, and David Greenberg. “The Dialectics of Crime Control.” In Crime and Capitalism, edited by David Greenberg, 209–254. Palo Alto, CA: Mayfield, 1981. Hunt, Allan. Explorations in Law and Society: Toward a Constitutive Theory of Law. New York: Routledge, 1993. ———. “Foucault’s Expulsion of Law: Towards a Retrieval.” Law and Social Inquiry 17, no. 1 (1992): 1–38. Hunt, Lynn. Inventing Human Rights. New York: W. W. Norton, 2007. Hunter, Robert. Egypt under the Khedives, 1805–1879: From Household Government to Modern Bureaucracy. Pittsburgh, PA: University of Pittsburgh Press, 1984. 338

bibliogr a ph y

Hunter, William Wilson. The Earl of Mayo. Vol. 2. Oxford: Clarendon Press, 1892. Hussein, Nasser. The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: University of Michigan Press, 2003. Ibn ‘Arabi. Divine Governance of the Human Kingdom. Translated by Tosun Bayrak. Louisville, KY: Fons Vitae, 1997. Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850. New York: Pantheon, 1978. Jacob, Wilson Chacko. Working Out Egypt: Effendi Masculinity and Subject Formation in Colonial Modernity, 1870–1940. Durham, NC: Duke University Press, 2011. Jawhari, Tantawi. Ayna al-insan [Where Is the Human?]. Cairo: Dar al-nahda al-arabiyya, 1978 [1911]. Johansen, Baber. “Casuistry: Between Legal Doctrine and Social Practice.” Islamic Law and Society 2, no. 2 (1995): 135–156. Kafka, Franz. “Metamorphosis.” In The Complete Stories, edited by Nahum Glatzer, 89–139. New York: Schocken, 1971. Kahn, Paul. The Cultural Study of Law: Reconstructing Legal Scholarship. Chicago: University of Chicago Press, 2000. Kant, Immanuel. Practical Philosophy. Edited and translated by Mary Gregor. Cambridge: Cambridge University Press, 1996. Kato, Hirosho. “Egyptian Village Community under Muhammad Ali’s Rule: An Annotation of ‘Qanun al-Filaha.’” Orient 16 (1980): 183–222. Kennedy, David. Law and War. Princeton, NJ: Princeton University Press, 2006. Khalil, Khalil Hassan. Al-Wisiyya: ‘an hayat al-jundi al-ladhi asbaha ostadh lil-iqtisad al-siyasi [The Estate: On the Life of the Soldier Who Became a Professor of Political Economy]. Cairo: Maktabat Madbuli, 1996. Khan, Ali. “Temporality of Law.” McGeorge Law Review 40 (2008): 55–106. Khanki, ‘Aziz. Shu’un misriyya [Egyptian Affairs]. Cairo: Al-Matba‘a al-‘Asriyya, n.d.). Kidder, Robert. “Toward an Integrated Theory of Imposed Law.” In The Imposition of Law, edited by Sandra Burman and Barbara Harrell-Bond, 289–306. New York: Academic Press, 1979. Kirchheimer, Otto. Political Justice: The Use of Legal Procedure for Political Ends. Princeton, NJ: Princeton University Press, 1961. Kornman, Anthony. “Precedent and Tradition.” Yale Law Journal 99, no. 5 (May 1990): 1029–1068. Koselleck, Reinhart. Critique and Crises: Enlightenment and the Pathogenesis of Modern Society. Boston: MIT Press, 1998. ———. Futures Past: On the Semantics of Historical Time. Translated by Keith Tribe. New York: Columbia University Press, 2004. Langdell, Christopher Columbus. A Summary of the Law of Contracts. Boston: Little, Brown, 1880. Larsen, James L. Interpreting Nature: The Science of Living from Linnaeus to Kant. Baltimore: Johns Hopkins University Press, 1994. Latour, Bruno. Pandora’s Hope: Essays on the Reality of Science Studies. Cambridge, MA: Harvard University Press, 1999. ———. The Politics of Nature: How to Bring the Sciences into Democracy. Translated by Catherine Porter. Cambridge, MA: Harvard University Press, 2004. ———. Reassembling the Social: An Introduction to Actor-Network Theory. Oxford: Oxford University Press, 2007. 339

bibliogr a ph y

———. We Have Never Been Modern. Cambridge, MA: Harvard University Press, 1993. Lavi, Shai. “Animal Laws and the Politics of Life: Slaughterhouse Regulations in Germany, 1870–1917.” Theoretical Inquiries in Law 8 (2008): 221–250. Lichtenstein, Alex. Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South. London: Verso, 1996. Lockwood, Jeffrey A. Six-Legged Soldiers: Using Insects as Weapons of War. Oxford: Oxford University Press, 2009. Lowenthal, David. The Past Is a Foreign Country. Cambridge: Cambridge University Press, 1999. Lowith, Karl. Meaning in History: The Theological Implications of the Philosophy of History. Chicago: University of Chicago Press, 1957. Lyotard, Jean-Francois. The Inhuman: Reflections on Time. Translated by Rachel Bowlby. Stanford, CA: Stanford University Press, 1992. MacIntyre, Alasdair. Dependent Rational Animals: Why Human Beings Need the Virtues. Chicago: Open Court, 1999. Maestro, Marcello. Cesare Beccaria and the Origins of Penal Reform. Philadelphia: Temple University Press, 1973. Mahmood, Saba. The Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton, NJ: Princeton University Press, 2005. Mamdani, Mahmood. Citizen and Subject. Princeton, NJ: Princeton University Press, 1996. Mani, Lata. Contentious Traditions: The Debate on Sati in Colonial India. Berkeley: University of California Press, 1998. Marsot, ‘Afaf Lutfi al-Sayyid. Egypt’s Liberal Experience, 1922–1936. Berkeley: University of California Press, 1977. ———. A Short History of Modern Egypt. New York: Cambridge University Press, 1985. Marx, Karl. Capital: A Critique of Political Economy. Vol. 1. New York: Penguin Classics, 1992. ———. “Crime and Primitive Accumulation.” In Crime and Capitalism, edited by David Greenberg, 45–48. Palo Alto, CA: Mayfield, 1981. ———. Economic and Philosophical Manuscripts, 1844. In Karl Marx, Early Writings, 279–420. London: Penguin, 1992. Mathhar, Isma‘il, trans. Asl al-anwa‘ [The Origin of Species]. By Charles Darwin. Cairo: Al-Matba‘a al-Misriyya, 1918. Mauss, Marcel. The Category of the Person: Anthropology, Philosophy, History. Edited by Michael Carrithers, Steven Collins, and Steven Lukes. Translated by W. D. Halls. Cambridge: Cambridge University Press, 1996 [1938]. Mbembe, Achille. “Necropolitics.” Translated by Libby Meintjes. Public Culture 15, no. 1 (2003): 11–40. McCook, Stuart. States of Nature: Science, Agriculture, and Environment in the Spanish Caribbean, 1760–1940. Austin: University of Texas Press, 2002. McFarlane, J. “The Production of Cotton in Egypt.” Journal of the Royal African Society 8, no. 32 (1909): 372–382. McGowen, Randall. “The Image of Justice and Reform of the Criminal Law in Early Nineteenth Century England.” Buffalo Law Review 32 (1983): 89–125. McHugh, P. G. “The Lawyer’s Concept of Sovereignty, the Treaty of Waitangi, and a Legal History of New Zealand.” In Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Context, edited by William Renwick, 170–189. Wellington, New Zealand: Victoria University Press, 1991. 340

bibliogr a ph y

Mehta, Uday Singh. Liberalism and Empire. Chicago and London: University of Chicago Press, 1999. Merry, Sally Engle. Colonizing Hawaii: The Cultural Power of Law. Princeton, NJ: Princeton University Press, 2000. ———. “Law and Colonialism.” Law and Society Review 25, no. 4 (1991): 889–922. Messick, Brinkley. The Calligraphic State: Textual Domination and History in a Muslim Society. Berkeley: University of California Press, 1996. Mill, John Stuart. “The Case of William Burn.” Morning Chronicle, November 1846. Reprinted in Newspaper Writings: January 1835–June 1847, edited by Ann and John Robson. Toronto: University of Toronto Press, 1986. Milner, Alfred. England in Egypt. London: Edward Arnold, Publisher to the India Office, 1892. Minow, Martha, Michael Ryan, and Austin Sarat, eds. Narrative, Violence and the Law: The Essays of Robert Cover. Ann Arbor: University of Michigan Press, 1995. Mitchell, Timothy. Colonising Egypt. Cambridge: Cambridge University Press, 1988. ———. “The Object of Development: America’s Egypt.” In Power of Development, edited by Jonathan Crush, 125–152. London: Routledge, 1995. ———. Rule of Experts: Egypt, Techno-politics, Modernity. Berkeley: University of California Press, 2002. ———. “Society, Economy and the State Effect.” In State/Culture: State Formation after the Cultural Turn, edited by George Steinmetz, 76–97. Ithaca, NY, and London: Cornell University Press, 1999. ———. “The Stage of Modernity.” In Questions of Modernity, edited by Timothy Mitchell, 1–34. Minneapolis: University of Minnesota Press, 2000. Montesquieu, baron de. The Spirit of the Laws. Translated by Thomas Nugent. Kitchener, ON: Batoche Books, 2001. Motha, Stewart. “The Sovereign Event in a Nation’s Law.” Law and Critique 13, no. 3 (2002): 311–338. Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge, MA: Harvard University Press, 2010. ———. “On the Genealogy of Morals.” The Nation, April 16, 2007; http://www.thenation .com/article/genealogy-morals. Murray, Martin. “Factories in the Fields: Capitalist Farming in the Bethal District: 1910– 1950.” In White Farms: Black Labor: The State and Agrarian Change in Southern Africa, 1910–1950, edited by Alan H. Jeeves and Jonathan Crush, 75–93. Portsmouth, NH: Heinemann, 1997. Muthu, Sanker. Enlightenment against Empire. Princeton, NJ: Princeton University Press, 2003. Nahhass, Yousef. Al-Fallah al-misri: halatahu al-iqtisadiyya wal-ijtima‘iyya [The Egyptian Peasant: His Economic and Social Conditions]. Cairo: Matba‘at al-Muqataf w ­ alMuqatam, 1926. Newsinger, John. “Liberal Imperialism and the Occupation of Egypt in 1882.” Race and Class 49, no. 3 (2007): 54–75. Official Report of the Delegation of the International Cotton Spinners’ and Manufacturers’ Associations to Egypt (October–November, 1912) and Report by the Secretary on His Subsequent Visit to the Anglo-Egyptian Sudan. November–December, 1912. Manchester, UK, March, 1913. Official Report of the International Cotton Congress, held in Egypt, 1927, by the International Federation of Master Cotton Spinners’ & Manufacturers’ Association. Manchester, UK: Taylor, Garnett, Evans & Co., 1927. 341

bibliogr a ph y

Oshinsky, David. “Worse than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice. New York: Free Press, 1997. Owen, Roger. Cotton and the Egyptian Economy, 1820–1914: A Study in Trade and Development. Oxford: Oxford University Press, 1969. ———. “Development of Agricultural Production in Nineteenth-Century Egypt: Capitalism of What Type?” In The Islamic Middle East, 700–1900: Studies in Economic and Social History, edited by Abraham Udovitch, 521–546. Princeton, NJ: Darwin Press, 1981. ———. “Large Landowners, Agricultural Progress and the State in Egypt, 1800–1970: An Overview with Many Questions.” In Food, States, and Peasants: Analysis of the Agrarian Question in the Middle East, edited by Alan Richards, 69–95. Boulder, CO, and London: Westview Press, 1986. ———. Lord Cromer: Victorian Imperialist, Edwardian Proconsul. Oxford: Oxford University Press, 2004. Pagden, Anthony. The Fall of Natural Man. Cambridge: Cambridge University Press, 1982. Palladino, Paolo. Entomology, Ecology and Agriculture: The Making of Scientific Careers in North America, 1885–1985. Amsterdam: Harwood Academic Publishers, 1996. Perry, Harold A. “Justice in Egypt.” Law Quarterly Review 1 (1885): 342–353. Peters, Rudolph. “Administrators and Magistrates: The Development of a Secular Judiciary in Egypt, 1842–1871.” In “State, Law and Society in Nineteenth Century Egypt,” special issue, Die Welt des Islams 39, no. 3 (November 1999): 378–397. ———. “Controlled Suffering: Mortality and Living Conditions in 19th-Century Egyptian Prisons.” International Journal of Middle East Studies 36, no. 3 (August 2004): 387–407. ———. “For His Correction and as a Deterrent Example for Others: Mehmet ‘Ali’s First Criminal Legislation.” Islamic Law and Society 6, no. 2 (1999): 164–192. ———. “Islamic and Secular Criminal Law in Nineteenth Century Egypt: The Role and the Function of the Qadi.” Islamic Law and Society 4, no. 1 (1997): 70–79. Pierce, Steven, and Anupama Rao, eds. Discipline and the Other Body: Correction, Corporeality, Colonialism. Durham, NC: Duke University Press, 2006. Pitts, Jennifer. A Turn to Empire: The Rise of Imperial Liberalism in Britain and France. Princeton, NJ: Princeton University Press, 1970. Pollard, Lisa. Nurturing the Nation: The Family Politics of Modernizing, Colonizing and Liberating Egypt. Berkeley: University of California Press, 2005. Pound, Roscoe. The Ideal Element in Law. Indianapolis, IN: Liberty Fund, 2002. Powell, Eve M. Troutt. A Different Shade of Colonialism: Egypt, Great Britain, and Mastery of the Sudan. Berkeley: University of California Press, 2003. Prakash, Gyan. Another Reason: Science and the Imagination of Modern India. Princeton, NJ: Princeton University Press, 1999. ———. Bounded Histories: Genealogies of Labor Servitude in Colonial India. Cambridge: Cambridge University Press, 1990. Radzinwicz, Leon, and Roger Hood. History of English Criminal Law and Its Administration. London: Stevens, 1986. Rafi‘i, ‘Abd al-Rahman al-. Mustafa Kamil ba‘ith al-harakah al-wataniyya [Mustafa Kamil, Founder of the Nationalist Movement]. Cairo: Dar al-Ma‘arif, 1962. Reid, Donald. Lawyers and Politics in the Arab World, 1880–1960. Minneapolis: Bibliotheca Islamica, 1981. Richards, Alan. Egypt’s Agricultural Development 1800–1980: Technical and Social Change. Boulder, CO: Westview Press, 1981.

342

bibliogr a ph y

Rivlin, Helen. The Agricultural Policy of Muhammad Ali in Egypt. Cambridge, MA: Harvard University Press, 1961. Rousseau, Jean-Jacques. On the Geneva Manuscript and Political Economy. Edited by Roger Masters. Translated by Judith Masters. New York: St. Martin’s, 1978. ———. The Social Contract. New York: Penguin, 2006. Rusche, Georg, and Otto Kirchheimer. Punishment and Social Structure. New York: Russell & Russell, 1968 [1939]. Ruskola, Teemu. “Legal Orientalism.” Michigan Law Review 101 (2003): 179–234. Russell, Thomas Pasha. Egyptian Service: 1902–1946. London: John Murray, 1949. Saad, Reem. Social History of an Agrarian Reform Community in Egypt. Cairo Papers in Social Science, vol. 11, Monograph 4. Cairo: American University in Cairo Press, Winter 1988. Said, Edward. Orientalism. New York: Vintage, 1978. Sala-Molins, Louis. Dark Side of the Light: Slavery and the French Enlightenment. Translated by John Conteh-Morgan. Minneapolis: University of Minnesota Press, 2006. Salim, Latifa. Al-Nizam al-qada’i al-misri al-hadith [The Egyptian Modern Legal System]. 2 vols. Cairo: Dar al-Shorouk, 2010. Salvatore, Armando. “The ‘Implosion’ of Shari‘a within the Emergence of Public Normativity: The Impact on Personal Responsibility and the Impersonality of Law.” In Standing Trial: Law and the Person in the Modern Middle East, edited by Baudouin Dupret, 116–139. London: I. B. Tauris, 2004. Santos, Boaventura de Sousa. Toward a New Common Sense. New York: Routledge, 1995. Sa‘oudi, ‘Abd al-‘Azim Muhmmad. Tarikh tatawwur al-rayy fi Misr: 1882–1914 [The History of the Development of Irrigation in Egypt]. Cairo: Al-Hayi’a al-Misriyya ­al-‘Amma lilKitab, 2001. Sarat, Austin, and Thomas Kearns, eds. History, Memory and the Law. Ann Arbor: University of Michigan Press, 1999. Saroufim, Ebied. England and the Criminal Legislation of Egypt from 1882. Unpublished doctoral thesis. Oxford, 1949. Schanz, Moritz. Cotton in Egypt and the Anglo-Egyptian Sudan. Submitted to the 9th International Cotton Congress, Scheveningen, June 9th to 11th, 1913. Manchester, UK: Taylor, Garnett, Evans & Co., 1913. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Cambridge, MA: MIT Press, 1985. Schorske, Carl E. Thinking with History: Explorations in the Passage to Modernism. Princeton, NJ: Princeton University Press, 1998. Schwirck, Harry. “Law’s Violence and the Boundary between Corporal Discipline and Physical Abuse in German South West Africa.” Akron Law Review 36 (2002): 81–132. Scott, James. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven, CT, and London: Yale University Press, 1998. Selverstein, Helena. Unleashing Rights: Law, Meaning and the Animal Rights Movement. Ann Arbor: University of Michigan Press, 1996. Shalabi, ‘Ali. Al-Rif al-misri fi al-nisf al-thani min al-qarn al-tasi‘ ‘ashar [Rural Egypt in the Second Half of the Nineteenth Century]. Cairo: Dar al-Ma‘arif, 1983. Shihata, Shafiq. Tarikh harakat al-tajdid fi al-nuzum al-qanuniyya fi Misr mundhu matla‘ al-qarn al-tasi‘ ‘ashar [The History of the Legal Reform Movement in Egypt since the Beginnings of the Nineteenth Century]. Cairo: Isa al-Babi al-Halabi, 1961.

343

bibliogr a ph y

Shilbi, Ahmad Hilmi. Al-Mujtama‘ al-rifi fi ‘asr Muhammad ‘Ali [Rural Society during Muhammad ‘Ali’s Reign]. Cairo: Al-Hayi’a al-Misriyya al-‘Amma lil-Kitab, 1992. Shklar, Judith. Legalism: Law, Morals and Political Trials. Cambridge, MA: Harvard University Press, 1964. Shmayyil, Shibli. Kitab falsafat al-nushu’ wal-iritiqa’ [A Book on the Philosophy of Evolution and Development]. Cairo: Matba‘at al-Muqtataf, 1910. Simay, Philippe. “Tradition as Injunction: Benjamin and the Critique of Historicism.” In Walter Benjamin and History, edited by Andrew Benjamin, 137–155. New York: Continuum, 2006. Simon, Jonathan. “‘In Another Kind of Wood’: Michel Foucault and Sociolegal Studies.” Law and Social Inquiry 17 (1992): 49–55. ———. Poor Discipline: Parole and the Social Control of the Underclass, 1890–1990. Chicago: University of Chicago Press, 1993. Society for the Gentle Treatment of Animals, “Taqrir ‘an ‘Am 1920” [Report for the Year 1920]. Cairo, 1921. Society for the Prevention of Cruelty to Animals (Egypt). “First Report for the Year 1883.” Alexandria: Printed at V. Penasson’s, 1883. Sonbol, Amira, trans. and ed. The Last Khedive of Egypt: Memoirs of ‘Abbas Hilmi II. Reading, UK: Ithaca Press, 1998. Steinfeld, Robert J., and Stanley L. Engerman. “Labor—Free or Coerced? A Historical Reassessment of Difference and Similarities.” In Free and Unfree Labour: The Debate Continues, edited by Tom Brass and Marcel van der Linden, 107–126. International and Comparative Social History 5. New York: Peter Lang, 1997. Stoler, Anne Laura. Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things. Durham, NC: Duke University Press, 1995. Stuart, Villiers. Egypt after the War: Narrative of a Tour of Inspection. London: John Murray, 1883. Sugarman, David. “‘A Hatred of Disorder’: Legal Science, Liberalism and Imperialism.” In Dangerous Supplements: Resistance and Renewal in Jurisprudence, edited by Peter Fitzpatrick, 34–67. Durham, NC: Duke University Press, 1991. ———. “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition.” In Legal Theory and Common Law, edited by William Twining, 26–61. Oxford and New York: Blackwell, 1986. Sugarman, David, and W. Wesley Pue. “Introduction: Towards a Cultural History of Lawyers.” In Lawyers and Vampires: Cultural Histories of Legal Professions, edited by W. Wesley Pue and David Sugarman, 1–24. Oxford: Hart Publishing, 2003. Tahtawi, Ra‘fat. Al-Siyasa wal-wataniyya wa-l-tarbiyya [National Politics and Education]. Vol. 2. Edited by Muhammad Amara. Cairo: Al-Mu’asasa al-‘Arabiyya li-l-Dirasat wa‑l-Nashr, 1973. Tamanaha, Brian Z. On The Rule of Law: History, Politics, Theory. Cambridge: Cambridge University Press, 2004. Tamir, ‘Aref, ed. Rasa’il ikhwan al-safa wa-khillan al-wafa [The Letters of the Brethren of Purity]. Vol. 2. Beirut: Manshurat Owiedat, 1995. Tawil, Amani al-. Al-Muhamoon wal-siysa: dirasa fi tarikh al-nukhba al-misriyya [Lawyers and Politics: A Study of the History of an Egyptian Elite]. Cairo: Dar al-Shorouk, 2007. Teoman, Özgur, and Muammer Kaymak. “Commercial Agriculture and Economic Change in the Ottoman Empire during the Nineteenth Century: A Comparison of Raw Cotton

344

bibliogr a ph y

Production in Western Anatolia and Egypt.” Journal of Peasant Studies 35, no. 2 (2008): 314–334. Thomas, Keith. Man and the Natural World: Changing Attitudes in England, 1500–1800. New York: Oxford University Press, 1983. Thompson, Edward Palmer. Whigs and Hunters: The Origin of the Black Act. New York: Pantheon, 1975. Tignor, Robert. Modernization and British Colonial Rule in Egypt, 1882–1914. Princeton, NJ: Princeton University Press, 1966. Todorov, Tzvetan. The Conquest of America: The Question of the Other. Norman: University of Oklahoma Press, 1999. Tollefson, Harold. Policing Islam: The British Occupation of Egypt and the Anglo-Egyptian Struggle over Control of the Police, 1882–1914. Westport, CT: Greenwood Press, 2000. Tomlins, Christopher. Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865. Cambridge: Cambridge University Press, 2010. Tucker, Judith. Women in Nineteenth Century Egypt. Cambridge: Cambridge University Press, 2002. Twining, William. “Torture.” In Bentham and Legal Theory, edited by M. H. James, 39–90. Belfast: Northern Ireland Legal Quarterly, 1973. Wallace, Donald Mackenzie. Egypt and the Egyptian Question. New York: Russell & Russell, 1883. Weber, Max. Economy and Society. Edited by Guenther Roth and Claus Wittich. 2 vols. Berkeley: University of California Press, 1978. Weiss, Harry. “The Criminal Prosecution of Insects.” Journal of the New York Entomological Society 45, no. 2 (1937): 251–258. Wiener, Martin. “The March of Penal Progress.” Journal of British Studies 26 (1987): 83–96. Wilder, Gary. The French Imperial Nation-State: Negritude and Colonial Humanism between the Two Worlds. Chicago: University of Chicago Press, 2005. Willcocks, F. G. The Insect and Related Pests of Egypt: The Insects and Related Pests Injurious to the Cotton Plant, The Pink Bollworm. Vol. 1, part 1. Cairo: Printing Office of the French Institute of Oriental Archaeology, 1916. Willcocks, William, and J. I. Craig. Egyptian Irrigation. 3rd ed. London: Spon, 1913. Wynter, Sylvia. “Unsettling the Coloniality of Being/Power/Truth/Freedom: Towards the Human, after Man, Its Overrepresentation—An Argument.” CR: The New Centennial Review 3 (2003): 257–337. Young, Robert. Postcolonialism: An Historical Introduction. Oxford: Blackwell, 2001. Zeidan, George. Kitab ‘aja’ib al-khalq [The Wonders of the Creation]. Cairo: Matba‘at alHilal, 1912. Zetland, Marquess of. Lord Cromer, Being the Authorized Life of Evelyn Baring First Earl of Cromer. Hodder & Stoughton: London, 1932. Ziadeh, Farhat. Lawyers, the Rule of Law and Liberalism in Modern Egypt. Stanford, CA: Hoover Institution on War, Revolution and Peace, 1968. Zimmerman, Andrew. Anthropology and Antihumanism in Imperial Germany. Chicago: University of Chicago Press, 2001. Zubaida, Sami. Law and Power in the Islamic World. London: I. B. Tauris, 2003.

345

Index

‘Abbas (khedive), 265–66 ‘Abd al-Wahid, Fatima, 162 ‘Abdullah, Salama, 50, 74, 75–76, 301n108 Aborigines’ Protection Society, 156–57, 314n26 abstraction, and presentism of modern law, 53–61 action, Arendt on, 170–71 administrative councils (magalis siyasa), 21, 33, 36, 37, 296n2 Administrative Exile Law, 279. See also Police Supervision Act of 1909 administrative law: as focus of khedival legal tradition, 55; separation from criminal law, 152–53, 158–61, 191–92 Afandi, Salim, 220–21 ‘Affuf, ‘Ali, 232–33 ‘Afifi, Ibrahim, 185 Agamben, Giorgio, 133, 231 agents (wukala’), in khedival legal system, 43 Agrama, Hussein, 297n16 agricultural administration: under Khedive Isma‘il, 207–8; separation from criminal law, 159, 161–63. See also Ministry of Agriculture Agricultural Bank of Egypt, 215–16 Alexandria, bombardment of, 109 Ali Pasha, Mehmed, 120, 192, 298n47. See also ‘Ali Pasha, Muhammad ‘Ali Pasha, Muhammad, 315nn29–31 al-haq (right; justice), in Egyptian legal writings, 25–26, 28 Al-Hilal (periodical), 54–55 Al-Huquq (legal journal): articles on law and history, 25–29; history as central interest of, 23; on introduction of modern law, 31; on prison reform, 117; as source for contemporary authors, 56

‘Ali, Mohammad Hassan, 266 Allenby, Viscount, 268, 269 Al-Mahakim (periodical), 56 Al-Mar’a al-jadida (The New Woman; Amin), 80 Al-Muhamah (Zaghlul), 23, 32–33 Al-Muqtataf (periodical), 100 Al-Qada’ (periodical), 56 alternative mechanism of dispute resolution, peasant vengeance as, 233–35 Althusser, Louis, 106 Al-Wajiz fi al-qanoun al-jina’i (The Basics of Criminal Law; Mustafa), 159–60 American South, forced labor in, 193–94 Amin, Qasim: and evolutionary theory, 82–85, 87, 100; on Islamic doctrine of human perfection, 82–83; on women’s rights, 80–85 Amin Bayk, Ahmad, 56–57 Amos, M. S., 266, 268 analytic school of jurisprudence, 51 Andres, Mr., 175 Anghie, Anthony, 34–35 animal cruelty: Cromer on, 126–29, 138– 39; as dehumanizing, 112; prevention of, as colonial goal, 111–12 animal cruelty reforms, 124–32; animal ­research and, 138–40; anticruelty societies, 126–27, 130–31; and colonial project, 125–26; and creation of human, 129–32; criminal statutes, 127– 28; as social control mechanism, 129 animals: homology with humans, and colonial project, 132–37; redefined status of under Darwinism, 86–87; research using, and instrumentalization of pain, 138–40 anticolonial tradition, on dehumanization of colonial subjects, 1–2 347

index

bandits (ashqiya’): and crime increase, concerns about, 276; difficulties prosecuting, 276–77; infamous exploits of, 272, 329n91; as synonymous with Bedouin, 272; as threat to cotton production, 271–72 bandits, measures against, 272–73; British policy of noninterference in, 274–76; commissions of brigandage, 273–76; efforts to prevent abuses in, 277; ­Police Supervision Act of 1909, 277–80 Barbier, Georges, 56 Beccaria, Cesare, 121–23 Beckert, Sven, 154 Bedouin (‘urban), as synonymous with bandit, 272 Beer, Gillian, 307n107 Benjamin, Walter, 28, 35, 146, 194–95, 307n87 Bentham, Jeremy: on animal suffering, 132; influence of, 47, 63, 301n108; instrumentalization of pain in, 120–21; on legal reform, 69; pleasure principle of, 111; on torture, 144–45 Benton, Lauren, 225, 231–32, 324n110 Between Past and Future (Arendt), 44–45 Bey, Nuri, 208 binding to law, tradition and, 44–45 biological sciences, and insects, conceptualization of, 172–73 biopower: Foucault on, 310n41; juridical human as subject of, 123; prison reform as, 118–19 Bishri, Tariq al-, 10, 40, 41 Blanche, Antoine G., 56 Boccaria, Cesare, 113 Bonding the law, to the human, 2, 16, 24, 284, 285. See also juridical humanity Borelli, Octave, 38 Bourdieu, Pierre, 306n74 Bowring, Sir John, 158–59 Brigham, John, 320n39 Brinton, Jasper, 299n57 British Cotton Association, 317n87 British occupation, 241; military events in, 109–10; oversight of ‘Urabi rebels’

‘ardihalgis, in khedival legal system, 43 Arendt, Hannah: on authority, 44–45; on French Declaration of the Rights of Man, 73; on human-nature relationship, 170–72; on juridical personhood, 8–9; on rightless creatures, 133, 136, 281; theorizations of the human, 93–94; on violence, 316n75 Artificial person, erasure of gap between natural person and, 106 Asad, Talal, 1, 10, 95, 145–46, 302n118, 310n44 ‘Assaf, Yusif, 301n107 ‘Atiyya, Muhammad Labib, 38–40 attacks on British troops: British policy on punishment of, 259, 260, 263, 268; extraordinary legal measures in response to, 253–60 Attar, Farid Ud-Din, 67, 103–4 Austin, John, 51, 59–60, 200 authority of insects: and conception of nature, 171–72; conceptualization of, 174–77; government’s need to address, 164, 195 authority of law: modern law’s lack of foundation in tradition, 44–45; positive law and, 52–53, 60–61; positivist relocation of into present, 53; tradition as basis of, 44–45 authority of nature: articulations of, 165– 80; colonial project as loosening of, 168–69; struggle against as struggle against force, 180, 183, 188, 189, 192, 194 Ayna al-insan (Where Is the Human?; Jawhari), 96–100 Badawi Pasha, ‘Abd al-Hamid, 56 Baer, Gabriel, 154, 212, 296–97n12 Balfour, Andrew, 139–40 Balls, W. Lawrence: career of, 166; on control of Nile, 189; on Egyptian link to nature, 166, 167, 170; on insect pests, 173, 178; on taming of nature, 168, 171; training of peasants in pest control, 188–89

348

index

trial and punishment, 67–68, 110–11, 244–46; phases of, 261; pretexts for, 36 British-occupied independent Egypt: British fields of intervention in, 267–68; British legal impotence in, 268–70, 328–29n84 British protectorship, use of extraordinary legal measures in, 265–67, 328n74 British Royal Commission on Vivisection, 139 Broadly, Mr., 249 Brown, Nathan, 40–41, 89–90, 270–71, 273–74 Bustani, Amin Ifram al-, 55–56 Butler, Harold, 315n50 Butler, William Francis, 109

nature, 168–69; plant scientists’ role in, 179 colonial rule: juridical humanity as legacy of, 95; persistence of past beneath, 65; reconfigured khedival spectral legalities of sovereignty under, 201–2, 206; recruitment of Egyptians to juridical humanity, 95; separation of legal ideality and legal factuality as technology of, 243 Colonising Egypt (Mitchell), 325n5 colonized subjects, inclusion of, in colonialism of modern law, 35 Comaroff, Jean, 305n32 Comaroff, John L., 305n32 Commentary on Egyptian Criminal Law (Goadby), 113 commissions of brigandage, 273–76 Committee for Judicial Surveillance, 143, 275, 302n129 Concept of Law, The (Hart), 51–52, 200 Conference of the Birds, The (Mantiq altayr; Attar), 67, 103–4 Cooper, Frederick, 41 corporal punishment, abolishment of, 89, 118. See also whipping corruption, and peasant exploitation, 155 corvée labor. See forced labor cotton crop, collapse of: Egyptian responsibility for, 173–74; impact on cotton industry, 149–50, 173, 174; natural causes of, 173 cotton diseases, fungal, 178 cotton industry: banditry as threat to, 271–72; cost of cotton pests to, 149–50, 173; importance to Egyptian economy, 153–54; labor laws, 315n50 cotton insect pests: administrative machinery against, 184–85; and biological pest control, 173, 176; as divine violence, 195; Earias insulana as, 179–80; measures against, 173–74, 183–89, 318n129; peasant response to, 150, 186, 195; penalties for failure to report, 185, 186, 187; pink bollworms as, 175–78, 184;

Calogero, Amadeo, 266 Campbell, Colin, 61 capitalism, and criminalization of displaced workers, 191–92 Carr, David, 297n31 cash-rent system, on large estates, 217–18 Césaire, Aimé, 1–2 Chaveau, Adolphe, 56, 57 Cheah, Pheng, 91, 304n26 Chirol, Valentine, 69–70 Chitty, A. C., 277, 279–80 citizen vs. human, in Arendt, 93–94 Clarke, F. S., 155–56 Colla, Elliott, 299n54 colonialist discourse, on nature-culture distinction, 165 coloniality of modern law, 24–25, 30, 35; creation of juridical humanity and, 68; debate on, 21–22; as generative of positivistic, presentist posture, 45 colonial law: characteristics of, 21; as ideal-factual hybrid, 243, 270–71. See also modern law colonial plurality, Benton on, 324n110 colonial project: abolition of slavery and, 126; animal cruelty reforms and, 125– 26; as experimental process, 189; homology of humans and animals and, 132–37; as loosening of authority of

349

index

cotton insect pests (continued ) technical training of peasants about, 188–89. See also cotton worms cotton insect pests, forced labor to combat: British conception of as voluntary, 177–78; characteristics vs. precolonial forced labor, 189–94; introduction of, 177–78; penal law as driving force in, 183–86; as recruitment of peasants into human labor, 150, 151, 188 Cotton Lands of Egypt, Limited, 213 Cotton Plant in Egypt, The (Balls), 166 cotton worms: efforts to combat, 173–74, 184; forced labor to combat, 150, 151; impact on cotton industry, 149– 50, 173; and reevaluation of nature as concept, 150 council judges, in khedival legal system, 43 Council of Ministers, 273 court-martial. See military tribunals and courts-martial Cover, Robert, 282 Credit Foncier Égyptien, 212, 215 Crew, Lord, 138 crime: early 20th-century increase in, 276, 330n104; Police Supervision Act and, 278. See also bandits criminal law: codification, 21, 39–40; colonial as compared to khedival, 189–194; in colonial use of forced labor, 183–86, 190–91, 193; conceptual purification from force, 152–53, 158–61, 191–92; as humanizing force, 131; separation from administrative law, 159–63; systematization of under positivism, 56; in textbooks, 55–57, 159. See also modern law, as ideal separated from legal factuality criminal procedures, new, introduction of, 40 criminal records, as window into estate life, 219–21, 224–27 “Critique of Violence” (Benjamin), 146, 194–95 Cromer, Lord (Evelyn Baring): and British reforms, 155; on cotton insect pests,

187; critics of, 314n26; on cruelty to animals, 126–29, 138–39; on Da’ira Saniyya lands, sale of, 211; and D ­ inshaway incident, 253–54, 255, 256; on Egyptian abuses, 156, 308–9n15; on Egyptian courts, 254; and extraordinary legal measures, 261–63; on forced labor, 94; on insect pests, 140; on irrigation, 169–70; on peasants, 88–89; on rule of law, 205– 6, 209; ‘Urabi rebellion and, 250–51 Crookshank, Dr., 115–16, 140–41 cruelty to animals: Cromer on, 126–29, 138–39; as dehumanizing, 112; prevention of, as colonial goal, 111–12 cruelty to animals, reform efforts, 124–32; animal research and, 138–40; anti­ cruelty societies, 126–27, 130–31; and colonial project, 125–26; and creation of human, 129–32; criminal statutes, 127–28; as social control mechanism, 129 Cruelty to Animals Decree (June 1902), 128 Cultivation Statute of 1829, 158–59, 160; colonial forced labor as repackaging of, 187, 190, 192–93 Da’ira della Famiglia, 221 Da’ira Saniyya: colonial sale and dispersal of, 211–14, 221–22; extent of, 221; growth of under Isma‘il Pasha, 207–8; Isma‘il Pasha’s relinquishment of, 209–11; management of under Isma‘il Pasha, 221, 223, 238 Darraj, Faisal, 25 Darwin, Charles, 100–104. See also evolutionary theory Daston, Lauren, 164, 165 death and life, continuity between, in Jawhari, 99–100 debt as technology of labor management, in agriculture, 154 Declaration of the Rights of Man and of the Citizen (1789), 4, 68–69, 73; and citizen vs. human, 93–94; and concept of person, 78

350

index

decolonization: anticolonial tradition on, 2; Fanon on, 6–7 Decree No. 19 (1912), 177 dehumanization: alternatives to juridical conception of humanity and, 285; as product of cruelty, 112; as product of suffering, 111, 119, 123 dehumanization of colonial subjects: anticolonial tradition on, 1–2; erasure of gap between natural person and artificial person and, 106; Fanon on, 6–8; modern law’s appropriation of power of humanization and, 77–80, 87–88; subjects’ refusal to accept, 7–8 Derrida, Jacques, 223, 304n14, 307n87 Development and Properties of Raw Cotton, The (Balls), 166 di-Capua, Yoav, 25 Dicey, A. V., 208 Dilke, Sir Charles, 109 Dinshaway, attack on British soldiers at, 253; backlash against summary justice, 257–59; and reinforcement of normative order through exceptional legalities, 257–58; release of jailed perpetrators, 258–59; separation of ideal law from legal factuality in, 255–57, 259; summary execution of sentences, 255; trial and sentencing in, 253, 254–55 divine violence: Benjamin on, 146, 194– 95; cotton insect pests as, 195 Dixon, A. H., 173–74 domain lands, 208 domination, Foucault on, 229 Dufferin, Lord: and British occupation of Egypt, 36, 241; and modern law in Egypt, 38; and ‘Urabi rebellion, 247, 248, 249–50, 252

209–11; independence gained by, 267; postcolonial, protesters’ state of exception in, 290–91 Egypt and the Egyptian Question (Wallace), 88 Egyptian Cotton Planters Company, Limited, 213 Egyptian courts, British impatience with, 254, 270 Egyptian elite, participation in civilization of peasants, 152 Egyptian lawyers, Western education of, 42–44 Egyptian political order, Egyptian involvement in creation of, 314n8 Egyptian relationship with past: modern law’s severing of, 24–25, 34, 55, 62– 63, 86; persistence of beneath colonial rule, 65; Ra’fat on, 64–65 Egyptians: determination of by nature, 166; modern law’s interpellation of, 3. See also peasantry Egyptians, humanization of: animal cruelty reforms and, 129–32; and pain, new understanding of, 4; past figure envisioned in, 86–87; prison reforms and, 111, 114–19; reshaping of relationship with nature and, 164; thwarting of by the inhuman, 94–95 Egyptian Service (Russell), 227 Egyptian Society for the Prevention of Cruelty to Animals, 126 Egypt of the Egyptians (Balls), 166 “Egypt Under British Control” (Fox Bourne), 314n26 empiricist theory of positive law, 52 “End of Rights of Man, The” (Arendt), 91–93 England in Egypt (Milner), 69 English Federation of Master Cotton Spinners’ Associations, 173–74 Enlightenment thought: and humanity as end in itself, 74–75; and prison reform, 113 entomology, and conceptualization of insect authority, 174–77 Essig, E. O., 149

Earias insulana, as cotton pest, 179–80 education: of Egyptian lawyers, Western focus of, 42–44; and Islamic doctrine of human perfection, 82; legal, and abstract nature of modern law, 33–34; moral, positive law as vehicle for, 69 Egypt: bankruptcy, under Isma‘il Pasha,

351

index

estates, under colonial rule: criminal records as window into, 219–21, 224–27; economic structures of, 217–18; Egyptian collective memory of, 222–23; land accumulation by private individuals, 211–14; limited state oversight of, 218–19, 221–23, 237, 322–23n84; management of, 218; peasant living conditions on, 216–21, 222–23, 226–28, 232–33, 234–35; and peasants, economic impact on, 214–16, 217–18; peasants’ lack of legal redress, 227–28, 232–33; peasant violence in, 219–21, 224–28, 232–35; permits required for, 219; persistence of, 202, 211–14; and relegation of violence to private agents, 202–3; as external and internal to state law, 223–28; as spaces of modern law’s multiple legalities, 229–32, 324nn110–11; state-owned, state’s supervision of, 236–37 estates, under khedival rule: Isma‘il Pasha’s formation of, 207–8; Isma‘il Pasha’s relinquishment of, 209–11; management and regulation of, 221, 223, 237–38 ethics: accounts including bodily dimensions, 124; detachment of pain from, 121–24 Euben, Roxanne, 63 evidence vs. ruling, in shari‘a law, 47–48 evolutionary theory: and animality, redefinition of, 86–87; conventional Egyptian understanding of, 101–2; Jawhari on, 100–104; positivist recasting of Islamic doctrine of human perfection in terms of, 82–86 exile: of bandits, 277, 279; as humane punishment, 250, 277, 281, 326n15; as practice constitutive of juridical humanity, 280–81; of ‘Urabi rebels, 249–51 extraordinary legal measures by British: attacks on troops and, 253–60; backlash against, 257–59; during British protectorship, 265–67, 328n74; as

crisis in modern legal order, 242; as evidence of law as ideal-factual hybrid, 243, 270–71; during occupation period, 242, 261–66; in occupied, independent Egypt, 267–70, 328– 29n84; ongoing crisis in ideal-factual split and, 243–44, 271; reinforcement of juridical order through, 257–58, 271, 281; separation of ideal law from legal factuality in, 243–44, 255–57, 259, 260, 261–65, 266, 270. See also martial law; military tribunals and courts-martial; special commissions extraordinary legal measures by Egyptian government: British attitude of noninterference toward, 274–76; reinforcement of juridical order through, 280, 281 ‘Ezbet Murjani, 222–23 fabrication (work), Arendt of, 170–71 fact vs. law, in shari‘a law, 47–48 Fadil, Mustafa Pasha Fahmy, Khaled, 9–10, 31, 118, 206, 296n12, 298n48 Fakhri, Husayn, 36–38, 43 Fanon, Frantz, 6–8 Fichte, Johann Gottlieb, 78 Findlay, Mr., 260 Fitzpatrick, Peter, 282 Flex, Paul, 129 force: criminal law’s conceptual purification from, 152–53, 158–61, 191–92; struggle against authority of nature as struggle against, 180, 183, 188, 189, 192, 194. See also violence force, use against peasantry: before British rule, 155–56; as incentive to achieve fully human separation from nature, 150–53; reclassification as penal, 153; reforms under British rule, 156; relegation to private agents, 153, 157, 161, 202–3. See also forced labor forced labor (corvée labor): before British rule, 155–56; precolonial vs. colonial, 189–94 forced labor, abolishment of, 89, 156;

352

index

British motives for, 89–90, 157–58; exceptions to, 90–92; in humanization of peasantry, 152, 154; as reconceptualization, 90–92 forced labor to combat cotton insect pests: British conception of as voluntary, 177–78; characteristics vs. precolonial forced labor, 189–94; introduction of, 177–78; penal law as driving force in, 183–86; as recruitment of peasants into human labor, 150, 151, 188 “Force of Law, The” (Derrida), 223 Foreign Office, policy on extraordinary legal measures, 261, 264–65 Fortarce, Visconti, 214 Foucault, Michel: on biopower, 118–19, 310n41; on birth of biological sciences, 172; on human progress, 283; on modern law, 228–29, 230; on the modern birth of man, 97; normative account of law in, 323n102; on prison reform, motives for, 113; and race, 323n99 Fox Bourne, H. R., 314n26 freedom as commodity, forced labor and, 92–93 French Revolution: and criminal law reforms, 113; as model for the rights of man, 74. See also Declaration of the Rights of Man and of the Citizen (1789) Fudge, Erica, 86–87 future: hope for, as channel for legitimate law, 63–64; in Jawhari’s cosmology, 99; positivism’s reshaping of, 65, 95, 200–201

Goadby, Frederick, 56, 113, 136–37 Goldberg, Ellis, 314n8 Golden Book, The (‘Atiyya), 38–39 Goodrich, Peter, 105–6 Gorst, Sir Eldon, 215–16, 259, 277, 321n57 Gour, Hari Singh, 56 “Governmentality” (Foucault), 228 governmental operations of the concept “person,” 305n38 Graham, Ronald, 277–78 Granville, Earl, 110, 241, 251–52 Greeks, ancient, cyclical concept of time in, 297–98n33 Greenwood, George, 139 Grey, Sir Edward, 174, 214, 258, 259, 265, 317n87, 321n61 Guess, Raymond, 306n83 Guidebook for the Perplexed on Knowing the Conditions of the Human (Qadri), 49–50 Halim, ‘Abd al-, 238 Haraway, Donna, 134, 312n95 Harrington, Christine, 319n12, 324n111 Hart, H. L. A., 51–52, 200 Hay, Douglas, 114 Hayek, Friedrich, 320n26 Hélie, Faustin, 56, 57 hierarchy in nature, Jawhari on, 100–104 Hilal, ‘Imad, 192–93 Hilbawi, Ibrahim el-, 254 Hill, Thomas E., 304n29 historical jurisprudence, 51 historical sensibility, modern, emergence of, 25 history, legal: multiple meanings of, 61–62; Ra’fat’s alternative account of, 63–65 history and law: in khedival Egyptian view, 25–29; separation of, in positivist view, 30–35 history and modern law: linearity of history, 29–35, 153; new temporal sensibility of modern law, 24; reasons for interest in history, 24; severing relationship with past, 24–25, 62–63

gap between natural person and artificial person, erasure of, 106 Garçon, Emile, 56, 57 Garraud, M., 113 Garraud, René, 56, 57, 302n130 Garstin, Sir William, 169–70 General Prisons Decree of 1901, 116 Geneva Manuscript (Rousseau), 304n20 Ghali, Butrus Pasha, 254 Glenn, Patrick, 296n10

353

index

human labor: anti-insect work as recruitment of peasants into, 150, 151, 188; as combat against force in nature, 183; concept of in conceptualizations of nature, 166, 170–72; Marx on, 181–83; transformation of nature by, 182–83; transformation of worker by, 183. See also forced labor human perfection, positivist recasting of Islamic doctrine of, 82–86 human rights, enforcement of, 306n83 human status, alternative constructs of: Islamic alternatives, 95–105; modern law’s foreclosure of, 5, 9; necessity of articulating, 17; possibility of, 285–91 human status, as construct of modern law: Arendt on, 8–9; as claiming power of humanization, 2–5, 8, 9, 10–11, 16–17; Fanon on, 6–8; as focus of British rule, 68; and moral reform, 81–82; ongoing problems engendered by, 10; possibility of overturning, 10–11, 17; rise of concept, 73–80; ‘Urabi rebels and, 67–68; and women’s rights, 80–86. See also juridical humanity human status, of peasantry: as abandonment to private regulation, 157–58, 163; British definition of through economic performance, 152, 154–55 human status, of criminals: relieved from useless pain, 129, 134, 142, 145; homology with animals, 142 Hunt, Allan, 323n102 Hunt, Lynn, 303–4n13 Hussein, Taha, 25

History of Sexuality, The (Foucault), 118, 228 Hobsbawm, Eric, 329n93 hope for the future, as channel for legitimate law, 63–64 Hoyle, Mark, 299n57 Human Condition, The (Arendt), 170 humaneness, history of concept, 131–32 humane reforms: biological life as target of, 119, 123–24; conception of human in, 142; and creation of human, 111, 114–19, 129–32; permitted forms of violence under, 137–45, 313n111, 313n117; persistence of violence under, 112. See also animal cruelty reforms; prison reform human-inhuman opposition: absence of in Jawhari’s cosmology, 97, 99; modern law and, 88, 89, 91–93 humanist tradition: and creation of juridical humanity, 70–73; legal personhood in, 105 humanitarian movement, expansion to include animals, 112 humanity: al-Tahtawi on, 135–36; in Bentham, 120; as end in itself, in positive law, 73–75; as excess remaining in law after expulsion of inhuman, 91–93; homology with animals, and colonial project, 132–37; Jawhari on, 96–100; as means in itself, 75; vs. citizen, in Arendt, 93–94. See also human status humanization of Egyptians: animal cruelty reforms and, 129–32; and pain, new understanding of, 4, 17; past figure envisioned in, 86–87; prison reforms and, 111, 114–19; reshaping of relationship with nature and, 164; thwarting of by the inhuman, 94–95. See also juridical humanity, creation of humanization power: alleviation of suffering as, 111, 119; dehumanization implicit in, 77–80, 87–88; modern law’s claiming of, 2–5, 8, 9, 10–11, 16–17; of positivism, vs. Islamic doctrine of human perfection, 82–84. See also human status

Ibn ‘Arabi, 27 Ignatieff, Michael, 113–14 Ikhwan al-Safa, 101, 308n111 insects, as weapons, 180 insects, authority of: and conception of nature, 171–72; conceptualization of, 174–77; government’s need to address, 164, 195. See also cotton insect pests insects, conceptualization of: birth of

354

index

biological sciences and, 172–73; paradigm of war in, 176, 179–80, 183 Insects and the Related Pests of Egypt, The (Willcocks), 175, 317n91 instinctive labor: Marx on, 181–82; vs. human labor, 183 instrumentality, and the human, 91 International Commission of Inquiry, 209 International Cotton Conference (1912), 150 International Cotton Conference (1927), 174 International Cotton Spinners’ and Manufacturers’ Association, 150 International Federation of Master Cotton Spinners’ and Manufacturers’ Associations, 174 Introduction to the Study of Law (Goadby), 113, 136–37 irrigation: human-nature relationship implicit in, 170–72; improvements under British rule, 155–56; naturalization of, 169–70; as technological taming of nature, 167–69 Islam: alternatives to juridical humanity in, 95–105; doctrine of human perfection, positivist recasting of, 82–86 Islamic law, Weber on unsystematic nature of, 298n46 Islamic legal writing (usul al fiqh), 53, 302n120 Islamic writing, positivist critique of, 54–55 Isma‘il Pasha: bankruptcy of, 209–11; and khedival estates, assembling of, 207–8; and khedival estates, management of, 221, 223, 238; and khedival estates, relinquishment of, 209–11; legal reforms under, 32, 42; peasant economic conditions under, 155–56; removal of, 210

theory, 100–104; future in, 99; on human, nature of, 96–100, 103; on justice vs. law, 104; as representative of alternative mystical tradition, 104–5; view of time in, 103 judicial system, mixed court, 36, 37, 38, 40–41, 159, 209, 212, 298n47, 299n57, 314n21 judicial system, modern: accommodation of shar‘ia in, 40; appeal of for Egyptian lawyers, 40–44; as break from past, 34, 39, 59, 62–63; Egyptians’ acceptance of, 39–40; introduction of, 37–39, 298n47 juridical, Foucault on the, 228 juridical humanity: as both bondage and critique of bondage, 289; as collapse of means and end, 147; as creation of modern law, 3, 8, 9; defined, 77; humaneness as, 111; as legacy of colonialism, 95; and modern law, fractured complexity of, 238–39; necessary attachment to law, 283–84, 285; and ongoing crisis within ideal-factual split, 244; as product of tension between ideal and factual, 282–83; recruitment of Egyptians to, 95; targeted populations, 68; as technology of colonial rule, 9, 17, 79; unsettling features of, 286–89; violence as inherent feature of, 287–89. See also modern law, as determinant of human status juridical humanity, alternatives to: Islamic alternatives, 95–105; modern law’s foreclosure of, 5, 9; necessity of articulating, 17; possibility of, 285–91 juridical humanity, creation of: actors in, 68; advocates for, 69–70; European culture of emancipation and, 68–69; humanist tradition and, 70–73; and mingling of human and changes in government, 69, 70, 72–73, 78; and positive law’s monopoly on humanizing power, 73, 75–80; and women’s rights, 80–86. See also humanization of Egyptians; human status, as construct of modern law

Jacob, Wilson Chacko, 295n1 Jamal, Ibrahim Afandi, 56 Jam‘iyyat al-rifq bil-hayawan (Society for the Gentle Treatment of Animals), 127, 128, 129 Jawhari, Tantawi: continuity of life and death in, 99–100; on evolutionary

355

index

juridical order, modern: multiple zones of spectral legalities constituting, 229–32; violence as assertion of ideal in, 282–83 juridical personhood, Arendt on, 8–9 justice, Rousseau on, 72 “Justice in Egypt” (Perry), 21 justice vs. law, Jawhari on, 104

labor, human: anti-insect work as recruitment of peasants into, 150, 151, 188; as combat against force in nature, 183; concept of in conceptualizations of nature, 166, 170–72; Marx on, 181–83; transformation of nature by, 182–83; transformation of worker by, 183. See also forced labor labor management technology: debt as, 154; private property as, 162–63, 221, 223; violence as, 236, 237 Labor Office, establishment of, 315n50 labor of peasants, exploitation of: British increase of efficiency in, 152; before British rule, 155–56; under British system, 161–63; debt as technology of, 154 land, sovereign’s continuity with, 229, 230 land companies, European, 212–14 Land Development Company of Egypt, Limited, 213 land ownership: concentration of, 154, 162, 211–14, 216; by European land companies, 212–14; by owner type, 214; price increases under colonial rule, 213; reconfiguration of khedival legalities under colonial rule, 202; and sovereign power, Montesquieu on, 204 Land Reform of 1952, 217 Langdell, Christopher Columbus, 298–99n49 Latour, Bruno, 125, 133, 271, 325–26n6 law: and calling of subject into being, 105–6; as historical memory, 64; inscription upon daily life, in humanist tradition, 105; legitimate, hope for the future as channel for, 63–64; and reason, Muslim perspective on, 47–48. See also colonial law, modern law; positive law; rule of law law, authority of: modern law’s lack of foundation in tradition, 44–45; positive law and, 52–53, 60–61; positivist relocation of into present, 53; tradition as basis of, 44–45 Law and Colonial Cultures (Benton), 324n110

Kafka, Franz, 137 Kahn, Paul, 58 Kamil, Mustafa, 257–58, 282 Kant, Immanuel, 74–75, 78, 304–5n30 Kershaw, J. F., 115 Khalil, Muhammad, 266 Khedival Agricultural Society, 184 khedival decree of 1897, 275–76 khedival laws, particularity of, 33 khedival legal tradition: administrative focus of, 55; colonial efforts to distance Egyptians from, 4; colonial reading of as inhuman, 4; critiques of, 39; efforts to recapture, 9–10; law and history in, 25–29; legal professionals under, 43; modern law’s destruction of, 1, 5–6, 9–10, 21–22, 30–35, 296n10; 19th-century reform efforts, 36–37, 298nn47–48; as raw material for modern legal system, 30–35, 62; replacement by modern law, 1, 9, 16, 21, 298n47, 301n115; structure and components of, 33; its depiction as unsystematic and incomplete, 296– 97n12, 298n46. See also shari‘a Khedival School of Law, 46 khedival sovereignty: abuses of, as motive for rule of law, 199–200, 205–6; assembly of estates under, 207–8; British restoration of, 36, 109, 110; continuity with the land, 229, 230; lingering spectral legalities under colonial rule, 201–2, 206 Kirchheimer, Otto, 262 Kitab al-arwah (The Book of Spirits; Jawhari), 96–100 Kitchener, Herbert, 214 Koselleck, Reinhart, 31, 79

356

index

magalis siyasa. See administrative councils Majlis al-Ahkam, 118 Mallet, Sir Edward, 110 Mamdani, Mahmood, 329–30n100 Mantiq al-tayr (The Conference of the Birds; Attar), 67, 103–4 martial law: during British protectorship period, 265–67, 328n74; debate on, in post-independence Egypt, 268–70, 328–29n84; debate on, pre-World War I, 261–65; in occupied, independent Egypt, 268–70; use of in British occupation, 242. See also military tribunals and courts-martial Marx, Karl: on human labor and nature, 181–83; on political economy, 191 Mathhar, Isma‘il, 101 Mauss, Marcel, 77–78 Maxwell, Peter Benson, 38 McFarlane, J., 154–55 Mehta, Uday, 55 Metamorphosis (Kafka), 137 migratory labor, on large estates, 217, 218 military tribunals and courts-martial: advocates for, 261–65; criticisms of, 253, 257–59, 261–62; ‘Urabi rebellion, 245–47; use of in British occupation, 242, 253–59. See also martial law Mill, John Stuart, 120, 129–30, 132 Milner, Alfred, 69, 79, 104–5, 274–75 Ministry of Agriculture: establishment of, 161, 174; inspections on large estates, 219; and war on insect pests, 186–87 Ministry of Irrigation, 218 Ministry of Justice, 160, 206, 245, 278 Ministry of Public Works, 161 Ministry of the Da’ira Saniyya, 237 Ministry of the Interior: and animal anticruelty efforts, 127, 128; antibanditry efforts, 272, 278; attacks on soldiers and, 255–56, 259; and ban on whipping, 115, 157; equal justice measures, 161; and legal reform, 161; and prison reform, 115, 116; and regulation of corporal punishment, 141, 142, 313n117; and war against insect pests, 184

law and history: in khedival Egyptian view, 25–29; separation of, in positivist view, 30–35. See also modern law, and history lawgivers, Rousseau on, 72–73 Law No. 3 (1906), 185 Law No. 6 (1913), 186 Law No. 13 (1905), 185 Law No. 15 (1923), 269 Law No. 20 (1921), 318n129 legal education, and abstract nature of modern law, 33–34 legal professionals: under khedival legal system, 43; as sole arbiters of legal system, in positivist law, 55–56, 57– 58; Western education of, and support for modern law, 42–44 legal reforms, colonial, 4, 10–14, 21–24, 36–45; as compared to pre-reform era, 31–34. See also humane reforms legal tradition, khedival: administrative focus of, 55; colonial efforts to distance Egyptians from, 4; colonial reading of as inhuman, 4; critiques of, 39; efforts to recapture, 9–10; law and history in, 25–29; legal professionals under, 43; modern law’s destruction of, 1, 5–6, 9–10, 21–22, 30–35, 296n10; 19th-century reform efforts, 36–37, 298nn47–48; as raw material for modern legal system, 30–35, 62; replacement by modern law, 1, 9, 16, 21, 298n47, 301n115; structure and components of, 33; as unsystematic and incomplete, 296–97n12, 298n46. See also shari‘a legal tradition, vs. legal system, 296n12 legal writings, positivist, history as central interest in, 23, 25 Le Grelle, M., 274–75 liberal tradition, on modern law, 2 Liberation of Women, The (Tahrir almar’a; Amin), 80, 82, 83 Lockwood, Jeffrey, 180 Lowith, Karl, 297–98n33 MacIntyre, Alasdair, 124

357

index

Mir’at al-Majalla (The Majalla’s Mirror; ‘Assaf), 301n107 Mitchell, Timothy, 166–67, 207, 325n5 mixed court system, 36, 37, 38, 40–41, 159, 209, 212, 298n47, 299n57, 314n21 Modern Egypt (Cromer), 205–6 modern law: authority of, lack of foundation in tradition, 44–45; Egyptian views on, 10, 70; erasure of gap between natural person and artificial person, 106; Foucault on, 228–29, 230; fractured complexity of, and meaning of juridical humanity, 238–39; interpellation of Egyptians, 3; introduction of, 38–39; liberal account of, 2; and opposition of human and inhuman, 88–89; as plural vehicles of domination, 229–32; as positive and secular, 4; replacement of Ottoman-khedival legal order, 1, 9, 16, 21, 298n47, 301n115; as technology of colonial rule, 3. See also positive law modern law, abstract nature of: and erasure of past, 34, 39, 59; legal education and, 33–34; and perception of khedival law, 33 modern law, coloniality of, 24–25, 30, 35; creation of juridical humanity and, 68; debate on, 21–22; generative of positivistic, presentist posture, 45 modern law, as determinant of human status: Arendt on, 8–9; as claiming power of humanization, 2–5, 8, 9, 10–11, 16–17; Fanon on, 6–8; as focus of British rule, 68; and moral reform, 81–82; ongoing problems engendered by, 10; possibility of overturning, 10–11, 17; rise of concept, 73–80; ‘Urabi rebels and, 67–68; and women’s rights, 80–86. See also juridical humanity modern law, and history: historicizing force, 59, 62, 199, 204, 207; linearity of history, 29–35, 153; new temporal sensibility of modern law, 24; reasons

for interest in history, 24; severing relationship with past, 24–25, 62–63 modern law, as ideal separated from legal factuality: British attitude of noninterference with Egyptian extraordinary legal measures, 274–76; in British occupation period, 242, 244–46; and British oversight over Egyptian legal operations, 67–68, 110–11, 243–46; Brown on, 270–71; as contradictory formation, 243; Dinshaway incident and, 255–57, 259; extraordinary legal measures and, 243–44, 255–57, 259, 260, 261–65, 266, 270, 280–82; ongoing crisis of purification engendered by, 243–44, 271; and possibility of politics, 283–84; reinforcement of normative order through exceptional legalities, 257–58; synergy of two sides, 281–82; as technology of colonial rule, 243; ‘Urabi rebellion trials and, 248–49 Montesquieu, 203–4, 223, 228 moral education, positive law as vehicle for, 69 morality, Muslim perspective on, 48 Morris, Mr., 275 Moyn, Samuel, 303–4n13 Mubarak, ‘Ali, 49–50 Muhammad Qadri Pasha, 36, 49–50 Muqaddimat al-qanun (Introduction to the Law; Safwat), 52, 53, 76 Muqaddimat al-qawanin (Introduction to the Laws; ‘Abdullah), 50, 74, 75–76 Murqus, Lukan, 214 Mursi, Muhammad Kamil Bayk, 50–52, 53–54, 56, 99, 301n115 Mustafa, ‘Umar, 159–60 Mustafa Bayk, Sayyid, 50–52, 53–54, 99, 301n115 mystical tradition, in Jawhari and Attar, 104 Nahhass, Yousef, 159 Napier, Mr., 249 naturalization of state, through irrigation work, 169–70

358

index

Origins of Totalitarianism, The (Arendt), 8 Ottoman Empire, in World War I, 265 Ottoman-khedival legal order. See khedival legal tradition Owen, Roger, 162, 217

nature: determination of Egyptians by, 166–68, 180; Marx on, 181–83; plasticity and adaptability of, 166, 167–69; vs. culture, colonialist discourse on, 165 nature, authority of: articulations of, 165–80; colonial project as loosening of, 168–69; struggle against as struggle against force, 180, 183, 188, 189, 192, 194 nature, conceptualizations of, 165–80; concept of human laborer engendered in, 166, 170–72; as homologous to critiques of precolonial state, 189 nature, relationship with: Arendt on, 170– 72; colonial reshaping of, 4, 150–53; reshaping of as form of humanization, 164; as state of war, 166, 176, 179–80, 183 Nawawi, Mufti Shaykh Hassuna Al-, 49 New Reform Club, 259 Newsinger, John, 110 New Woman; The (Al-Mar’a al-jadida; Amin), 80, 81, 82 Nile river: authority of, government’s need to address, 164; as symbol of Egypt, 167 Nitham al-‘alam wal-’umam (The Order of the Universe and the Nations; Jawhari), 100 Nolan, Mr., 255 nonviolence, as desired impossibility, 288 Nubar Pasha, 38, 126, 212, 274 Nypels, Guillaume, 56

Pagden, Anthony, 167 pain: al-Tahtawi on, 135–36; Beccaria on, 121–23; dehumanization as product of, 111, 119, 123; detachment from ethics, 121–24; new understanding of under modern law, 4, 17 pain, instrumentalization of: and animal research, 138–40; in Bentham, 120–21; and collapse of means and ends, 147, 288; under colonial rule, 137–45; and creation of human, 111, 119, 121–24, 142, 147, 287; and juridical humanity as unsettling concept, 288–89; and measurement of pain, 143–44; and paradox of cruelty, 145– 46; in prison discipline, 140–44 pain, measurement of, in instrumentalized pain, 143–44 Pandora’s Hope (Latour), 325–26n6 paradox of cruelty, instrumentalization of pain and, 145–46 past, Egypt’s relationship with: modern law’s severing of, 24–25, 34, 55, 62– 63, 86; persistence of beneath colonial rule, 65; Ra’fat on, 64–65 Peasant: His Economic and Social Conditions, The (Nahhass), 159 peasant labor, exploitation of: British increase of efficiency in, 152; before British rule, 155–56; under British system, 161–63; debt as technology of, 154. See also forced labor peasantry (fellahin): under British rule, 156–57, 161–63; and cotton insect pests, response to, 150, 186, 195; economic conditions before British rule, 155–56; economic conditions under British rule, 156–57, 161–63, 214–16, 217–18, 321n61; elevation of, legal reforms aimed at, 89; equality of, as measure of successful reform, 88–89;

O’Brien, Thomas, 260 occupation, and positive law, imposition of, 60 Official Bulletin of the Native Tribunals, 56, 57 “On the Concept of History” (Benjamin), 28 “On the Human” (al-Tahtawi), 134–36 On Violence (Arendt), 316n75 Order of Things, The (Foucault), 172 Origin of Species, The (Darwin), 100, 101, 307n107

359

index

peasantry (fellahin) (continued) and judicial system, refusal to participate in, 276–77; living conditions under British rule, 216–21, 222–23, 226–28, 325n129; loyalty of, British concern with winning, 157; rights, recognition of under British rule, 159; as target of humanizing efforts, 151–52 peasantry, human status of: as abandonment to private regulation, 157–58, 163; British definition of through economic performance, 152, 154–55. See also humanization of Egyptians peasantry, use of force against: before British rule, 155–56; as incentive to achieve fully human separation from nature, 150–53; reclassification as penal, 153; reforms under British rule, 156; relegation to private agents, 153, 157, 161, 202–3. See also forced labor Penal Code of 1883: conceptual purification from force, 158–60; French Penal Code as model for, 39; introduction of, 38–39; textbooks’ exclusive focus on, 57–58 Penal Code of 1904: anti-strike provisions, 268, 328n80; on illegal assembly, 267; and instrumentalization of pain, 144, 236, 313n119; new crimes introduced in, 276; reforms in, 40 penal law. See criminal law Percival, J. H., 269 Perrot, Mr., 266 Perry, Harold, 21 persona, 77–78 personhood: collapse of human into, 78; history of concept, 77–78; in humanist tradition, 105 personnage, 77–78 personne, 77–78 Peters, Rudolph, 31, 40, 118, 127, 159, 206, 298n48 Pierce, Steven, 325n3 pink bollworm (Gelechia gossypiella), efforts to combat, 175–78, 184 plantation system, on large estates, 217

plant scientists, role in colonial project, 179 Police Supervision Act of 1909, 277–80 political economy, Marx on, 191 political language, concepts of, 79 politics: possibility of, ideal-factuality split in juridical order and, 283–84; space of, alternatives to juridical conception of humanity in, 285–91 positive law: and basis of authority, 52–53, 60–61; definitions of law in, 50–51; early definitions of, 47, 50, 51–53; empiricist theory of, 52; Hart on, 51–52, 200; as historical method, 62; lack of external checks on, 61; legal forms of ordering tolerated under, 51–52; methods of incorporating human concept in, 73–74; monopolization of justice in, 72; presentism of, 53–61; primary and secondary rules in, 51–52; and relegation of labor management, 163; self-referentiality of, 54–61, 73; as simultaneous means and end, 24–25, 60–61; as temporal concept, 62; as vehicle for moral education, 69. See also modern law positive law textbooks, 45–53; abstract self-referentiality of, 34, 54–61; and evolution of modern law, 45–53; historical focus of, 23; ignoring of penal mechanisms beyond legal code, 56–57; on legal professional as sole arbiters of legal system, 55–56, 57–58; and mingling of human and changes in government, 78 postcolonial Egypt, protesters’ state of exception in, 290–91 Pound, Roscoe, 243 Prakash, Gyan, 153 precolonial state: critiques of, as homologous to critiques of nature, 189; forced labor in, 155–56 presentism of positive law, 53–61 prisoners, khedival decree reducing sentences of, 275–76 prison reform, 110–11, 115–19; biological

360

index

life as focus of, 119, 123–24; creation of human as goal of, 119; enforcement of standards, 116–17; limited efficacy of, 117; living conditions as focus of, 115–16; motives for, 113–14, 118; precolonial efforts, 118; punishment regulation, 140–44, 309n31, 313n117, 313n119; as social control mechanism, 113–14; as technique of juridical humanity, 119 Prisons Decree of 1901, 142 private property: Montesquieu on, 204; and rule of law, 204; as technology of labor management, 162–63, 221, 223. See also land ownership Program for Successful Peasant Cultivation and the Application of Government Regulation, 192–93 Property and Politics of Entitlement (Brigham), 320n39 property law, reconfigured khedival legalities under colonial rule, 202 Province of Jurisprudence, The (Austin), 59–60

English establishment and spread of, 208–9; and future, reshaping of, 200–201; law as disembodied abstraction in, 199, 205–6; Montesquieu on, 203–4; private property and, 204; on rule of men, assumed abuses under, 199–200, 208 rule of law, violence in: recognition of potential for, 200; regulation of, 200. See also modern law, as ideal separated from legal factuality Rule of Law in the Arab World, The (Brown), 40–41, 270–71 Russell Pasha, Sir Thomas, 157, 227–28, 233 Saad, Reem, 199, 222–23 Sa‘d, ‘Abd al-Mawla, 221 Sa‘d, Dimitri Afandi, 116 Safwat, Ahmad, 52, 53, 76 Sa‘id (khedive), 209 Sa‘id, Mahmud Muhammed, 214 Salih, Muhammad, 225–26 Salim, ‘Ali, 220–21 Salim, Latifa, 298n47 Salisbury, Marquis of, 250 Salvatore, Armando, 305n38 Sarvais, Jean, 56 Schanz, Moritz, 150, 179–80 Schwirck, Harry, 323n96 scribes, in khedival legal system, 43 Seventh International Cotton Congress (Brussels, 1910), 173 Seymour, Admiral, 109 Shadow Justice (Harrington), 319n12 Shakry, Omnia el-, 304n21, 314n9, 315n135 sharecropping, 162–63, 217 shari‘a: accommodation of in new judicial system, 40, 301n115; characteristics vs. positive law, 47–48; as a comparative legal system, 46, 49–50, 64; early legal textbooks’ referencing of, 46–49; efforts to codify, 36, 37; modern law’s replacement of, 1, 4, 48–49; as raw material for modern legal system, 31; teaching of in positivist textbooks, 50

Qanun-i siyasiye (1829), 159 Qawish estate, 225–27 Ra’fat, Muhammad Afandi, 46–49, 63–65 Rao, Anupama, 325n3 real person (al-shakhs al-haqiqi), Mursi and Mustafa on, 99 reason and law, Muslim perspective on, 47–48 Research Defense Society, 138–39 Richards, Alan, 154 “Rights of Man and the End of the Nation State, The” (Arendt), 133 Rizq, Hajj Khadir, 232–33 Roman law, Shmayyil on, 29 Rousseau, Jean-Jacques, 47, 63, 70–73, 303n13, 304n20 Royal Society for the Prevention of Cruelty to Animals, 126, 138 rule of law: in British India, 320n30; centrality to Egyptian colonial state, 199; Cromer on, 205–6; defined, 320n26;

361

index

shari‘a courts: as component of khedival legal structure, 33; replacement of, 21, 37–38 Sharif Pasha, 126, 250 Sherif, Muhammad, 36–37 Shmayyil, Shibli: on khedival legal system, 26–30; on modern view of legal progress, 29–31 Sidi Salem Estates of Egypt, Limited, 213 Simon, Jonathan, 323n102 siyasa. See administrative councils “Sketch History of Entomology, A” (Essig), 149 slavery, abolition of, and colonial project, 126 Social Contract, The (Rousseau), 70–73, 304n20 Social History of an Agrarian Reform Community in Egypt (Saad), 199 Society for the Gentle Treatment of Animals (Jam‘iyyat al-rifq bil-hayawan), 127, 128, 129 Society Must Be Defended (Foucault), 229 sore-shin fungus, 178 sovereignty: Austin on, 59–60; Montesquieu on, 203–4 sovereignty, khedival: abuses of, as motive for rule of law, 199–200, 205–6; assembly of estates under, 207–8; British restoration of, 36, 109, 110; continuity with the land, 229, 230; lingering spectral legalities under colonial rule, 201–2, 206 special commissions: in ‘Urabi rebellion investigation, 252–53; use of in British occupation, 242 spectral legalities: defined, 319n5; of khedival sovereignty, reconfigured under colonial rule, 201–2, 206; multiple zones of, in modern law, 229–32 Spirit of the Laws (Montesquieu), 203–4 state, naturalization of, through irrigation work, 169–70 state archival records, lacunae in, 224 Stephen, James Fitzjames, 320n30 subject, calling of into being by law, 105–6 Sudani, Murjan al-, 226

Sudani, Salim al-, 234–35 Suez Canal Company, 209 suffering, as dehumanizing, 111, 119, 123 Sugarman, David, 57 Sultanic Agricultural Society, 175 Tahrir al-mar’a (The Liberation of Women; Amin), 80, 82, 83 Tahtawi, Rafi‘ al-, 134–36 Tarabishi, Ibrahim Isma‘il Nagah el-, 266 Tawfiq (khedive), 36–37, 67; and Dinshaway incident, 254, 258, 259; and prison reform, 110; restoration of, 36, 109, 110; and ‘Urabi Revolution, 241, 247–48, 252 taxation, abuses and reforms, 155–56 technology, in taming of nature, 166–68 Tel el-Kebir, battle of, 109–10 terror, of space outside modern law, 106 textbooks, positive law, 45–53; and abstract nature of modern law, 34; abstract self-referentiality of, 54–61; and evolution of modern law, 45–53; historical focus of, 23; ignoring of penal mechanisms beyond legal code, 56–57; on legal professional as sole arbiters of legal system, 55–56, 57–58 Thomas, Keith, 131–32 Thompson, E. P., 114 Tignor, Robert, 190 time: cyclicality of, in ancient Greek system, 297–98n33; cyclicality of, in khedival legal system, 27–29; linearity of in conventional Egyptian reading of evolutionary theory, 102–3; linearity of in modern view, 29–35, 153 Times (London), 139 Tomlins, Christopher, 190 torture: Beccaria on, 121–23; Bentham on, 144–45; Foucault on, 113; prohibition of, 88, 110–11, 117, 119, 309n31; reform’s reclassification of, 141 To the Children of Calcutta, on Cruelty (Calcutta Society for the Prevention of Cruelty to Animals), 125–26 tradition, loss of, as loss of authority, 44–45

362

index

‘Umar Pasha, 238 universal substance, Jawhari on, 96–98 ‘Urabi, Ahmad: exile of, 249–50; role in rebellion, 36; trial and sentencing of, 241–42, 246–48, 326n12 ‘Urabi rebellion, 36, 241; British oversight of rebel trial and punishment, 67–68, 110–11, 244–46, 251–52; exile of rebels, 249–51; jailed rebels, treatment and disposition of, 251–53; sentencing of rebels, 241–42, 247–48; trial of rebels, 246, 326n12 Usul al-qanun (The Principles of Law; Mursi and Mustafa), 99 Usul al-Qawanin (The Sources of Laws; Ra’fat), 46–49 utilitarianism, instrumentalization of pain in, 120–21

235–39; as collapse of means and ends, 235, 288; as instrumentalized, 137–45, 235–37, 324–25n126; on private estates, rule of law and, 218–19, 221–28, 237 vita activa, Arendt of, 170–71 wage labor, transition to in agriculture, 162–63 Wallace, Donald Mackenzie, 88 waqf (Islamic charitable endowments), land ownership by, 214 Wardani, Ibrahim Nasif el-, 254 Weber, May, 298n46 Wellcome Research Laboratories, 139 West, Raymond, 274 “What Is Authority” (Arendt), 44–45 “What Is Slavery?” (Cromer), 94 whipping: before British rule, 155; of free citizens, abolishment of, 115, 117, 118, 157, 161; of prisoners, regulation of, 140–41, 142–43, 313n119 Willcocks, F. C., 175–78 Willcocks, W., 156–57 Wilson, Sir Charles, 110, 245–46, 252 Wolseley, Garnet, 36 women’s rights: advocates for, 80–82; as product of modern law, 82–86 Wood, Evelyn, 70 work (fabrication), Arendt on, 170–71 Wretched of the Earth, The (Fanon), 6–8 wukala’ (agents), in khedival legal system, 43 Wynter, Sylvia, 307n94

vengeance: as alternative mechanism of dispute resolution, 233–35; peasants’ resort to, 227–28, 276 Victoria (queen of England), 251 Vidal, Fernando, 164, 165 violence: as assertion of ideality, in juridical order, 282–83; criteria for regulation of, 147; as inherent feature of juridical humanity, 287–89; of law, Benjamin on, 194–95; new understanding of under modern law, 4, 17; and nonviolence, connectedness of, 282. See also force; modern law, as ideal separated from legal factuality; pain; whipping violence, divine: Benjamin on, 146, 194– 95; cotton insect pests as, 195 violence, in extraordinary legal measures by British: backlash against, 257–59; in Dinshaway incident, 255. See also extraordinary legal measures by British violence under colonial rule: as arbitrary,

Yngvesson, Barbara, 324n111 Zaghlul, Ahmad Fathi, 23, 32–33, 43, 298n47 Zaghlul, Sa‘d, 267 Zaki, Mustafa Afandi, 116

363