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In Search of Equal Justice (al-ʿadl bis-sawiyya)

The Development of “musāwāt” in the Political and Religious Language of Islamic Countries

In: Interdisciplinary Journal for Religion and Transformation in Contemporary Society
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  • 1 University Assistant, Department of Near Eastern Studies, University of ViennaViennaAustria
  • | 2 Assistant Professor of Public Law, Family Research Institute, Shahid Beheshti UniversityTehranIran
Open Access

Abstract

In the last century and a half, modern legal ideas and institutions have more or less found their way into traditional Muslim societies. The translation and transmission of foreign ideas, notions, and concepts into the Islamic context brought about a crisis, which has led to the evaluation of a field of discourse over modernity. The current paper seeks to explain the modifications of the legal language and concepts within the constitutional experience of the Islamic world during the 19th and 20th centuries, by reference to Reinhart Koselleck’s “space of experience” and the “horizon of expectation”. For this purpose, the essay deals with the development of the modern concept of “equality” and some related notions, such as “justice” and “fairness”, with a focus on selected source texts in Arabic, Persian, and Ottoman-Turkish.

Abstract

In the last century and a half, modern legal ideas and institutions have more or less found their way into traditional Muslim societies. The translation and transmission of foreign ideas, notions, and concepts into the Islamic context brought about a crisis, which has led to the evaluation of a field of discourse over modernity. The current paper seeks to explain the modifications of the legal language and concepts within the constitutional experience of the Islamic world during the 19th and 20th centuries, by reference to Reinhart Koselleck’s “space of experience” and the “horizon of expectation”. For this purpose, the essay deals with the development of the modern concept of “equality” and some related notions, such as “justice” and “fairness”, with a focus on selected source texts in Arabic, Persian, and Ottoman-Turkish.

1 Introduction

In the last one and a half century, modern legal ideas and institutions have more or less found their way into traditional Muslim societies. The eager attempt to translate foreign institutions, notions, and concepts into the Islamic context brought about a crisis, which has led to the evaluation of a field of discourse over modernity. In this discourse, in which the first intellectual struggles to establish new concepts have taken place, one can see how a rebuilding phase began. In the process of translating new ideas and concepts into the Islamic context by applying the already familiar old notions and expressions, languages and texts underwent significant transformations. This difficult situation can indeed be understood as a crisis of concepts. “The former social structures were breaking up, and linguistic reflection felt the pressure of change of a history which itself was newly experienced and articulated.”1

The German historian Reinhart Koselleck and his idea of Begriffsgeschichte (Conceptual History) can provide us with an adequate basis – apart from the empirical arguments in the prognoses – to explore the changing semantics and pragmatics of concepts in their social and political contexts and thus gain a better insight into the causes of the accrued crisis of modernity in the Islamic world. Koselleck’s thesis is based on the notion that in separating “past and future”, or “experience and expectation”, it is possible to grasp “historical time”.2 “Historical time”, according to him, repeatedly reproduces the tension between society, its transformation and its linguistic preparation and processing. Social relationships, conflicts, and their solutions, as well as their changing conditions, are never congruent with the linguistic articulation by which societies act, understand, interpret, change, and reform themselves.3

By considering the socio-political history of the Islamic world during the 19th century – taking into account the French invasion of Egypt and the subsequent changes that took place in the Ottoman Empire and Iran – we may be able to mark the end of the 18th century as the beginning of a “new time” of modernity in the Islamic world.4 Moreover, the term nahḍa (revival), employed by many Islamic scholars, was intended to indicate the profound changes that occurred in that phase and separated it from the past. At this time, numerous modernization measures were carried out in many parts of the Islamic world, initially in military reforms, yet for good reason: in Iran, for example, the trauma of the Russian–Persian war losses and the abandonment of Herat produced a longing for a modern army, primarily in Azerbaijan, where contact with the Russians and the Ottomans was greatest.5 A similar situation developed among the Ottomans. After a series of failures in Europe, especially in the context of the Russian–Ottoman wars (1768–1774), they initially announced extensive military transformations. Furthermore, in Egypt, after the French invasion, Muḥammad ʿAlī Paşa (1770–1849) pursued the goal of establishing a modern armoured army as the main aim of his reform plan.6 Consequently, the substantial dominance of the European army, which had menaced the independence and sovereignty of the Middle East, became the model of change in this region. Indeed, the establishment of a modern army caused these countries to be confronted with more fundamental changes, such as administrative, political, social and economic reforms, which in turn required major alterations to their entire governmental structure.

Thus, most parts of the Islamic world in the 19th century were typified by the realization of various modernization measures, which could be called a “process of translation”.7 Yet, not only modern military methods and technologies were subject to “translations”, but over time, a widespread inclination also developed to “translate” or transfer entire European institutions, unprecedented forms of government, and other non-indigenous concepts, ideas, and visions.8 The numerous failings and inefficiencies of the political authorities on the one hand and the people’s encounters with new ideas and concepts on the other, sent most parts of the Islamic world into an ineluctable crisis. Under these circumstances, the first intellectual debates about the establishment of new concepts took place. Reams of previously unknown expressions and concepts, which were expected to create new conjunctures for the people, were imported. Following Koselleck, these new notions could no longer be termed “experience registration terms” (Erfahrungsregistraturbegriffe), because they no longer indicated what was laid out in the historical background of the people. In fact, they were “concepts of experience founders” (Erfahrungsstiftungsbegriffe) or “mere concepts of expectations” (reine Erwartungsbegriffe) because they rather articulated hopes, expectations, and “anticipated” new horizons.9 In other words, instead of referring to previous experiences, these new terms sought to influence or shape socio-political impacts in the form of new experiences before their occurrence. They gained an “experience-founding quality” and can therefore be called “mere concepts of expectations”.10

This applies in particular to the concepts of the legal language, such as freedom (ḥurriya), law (ḥaqq/qānūn), justice (ʿadāla), and equality (musāwāt/taswiya); concepts of movement, such as emancipation (taḥarrur), progress (taraqqī/taqaddum), and revolution (inqilāb); epochal concepts, such as modernity (taǧaddud); and political units, such as a constitution (dastūriya/mašrūṭiya) and the state (dawla). These concepts, although they had long existed as old terms, obtained the status of neologisms indicating essentially different facts and circumstances and could henceforth trigger an incomparable dynamism.

This period is fairly comparable to Reinhart Koselleck’s “Sattelzeit” (saddle time or threshold time), during which language changed into the language of modernity. According to Koselleck, Sattelzeit marks the time, when “experience of the past and expectation of the future were no longer in correspondence, but were progressively divided up. Pragmatic prognosis of a possible future became a long-term expectation of a new future.”11 The distinction between Koselleck’s main categories of “space of experience” and the “horizon of expectation” can help us to outline more concisely the quandary and tensions caused in the 19th century Islamic world. When Islamic scholars first adopted these ideas, their space of experience for the local community was almost zero, and the lower the space of experience, the wider the expectations linked to them. Yet the tension increased at a subsequent time when the old expressions were used (especially by public speakers) regardless of the essentially different meanings they were now pointing to.

Based on these considerations, this paper seeks to analyse the modifications of the legal language and concepts within the constitutional experience of the Islamic world during the 19th and 20th centuries, exemplified through the development of the modern concept of “equality” and some related notions, such as “justice” and “fairness”, with a focus on selected source texts in Arabic, Persian, and Ottoman-Turkish. The selection of texts in these three leading languages enables us to gain an overall view of the modifications in different parts of the Islamic world.

But first it is worth taking a brief look at the development history of the idea of equality in the West.

2 The Modern Era of Equality

In the Western European tradition, the origins of equality date back to antiquity, when the conception of equal value of all human beings was represented by, among others, the sophists.12 Furthermore, in the ancient philosophy of Stoicism, the notion of equality between people already played an important role (e.g. in the writings of Cicero and his concept of dignitas hominis). However, the dignitas hominis of antiquity had no subjective-legal consequences, but only virtue-ethical duties towards oneself. It was only later in Kant’s moral philosophy that the universal Ciceronian dignitas hominis became a concept that justified moral and legal claims against third parties.13

Until modern times, older traditional, class-based societies remained committed to this model of Stoicism. In this system of thought, the individual was only a member of the house and clan association, and equal treatment was related to the particular level at which everyone was equal (e.g. the equality of all barons). This is why in older societies, no general human rights existed that made an unsurpassable universal claim; instead, there were specific and concrete rights and privileges of certain groups of people. The meaning of equality in the sense of suum cuique in Roman law moved in the same direction: it presupposed a differentiated target group rather than a collective abstract containing a universal message and claim of general applicability. Not the individual with legal capacity but his or her status was recognized as the holder of rights and obligations.14

Another root of the modern Western idea of equality is the Christian sense of equality of all people before God.15 However, in Christian doctrine, similar to Stoicism, the final step from equality before and in God to general equal human rights enforceable in this world was not carried out. The classical Christian equality and freedom were equality and freedom before God. Early Christianity led away from politics and was not a state-supporting principle; thus, “no theological or moral doctrine of inner freedom, of the equality of all humans before God, or of their equality given by nature ever questioned indenture labour, serfdom, servitude, or slavery institutions – all of which spread in the most terrible way in the early modern period”.16 However, although equality only gained social impact in modern times, both Stoicism and Christianity created the spiritual foundations for its development in the West. Without Stoicism and Christianity, a rational system of supranational, natural human rights might never have been realized.17

The first step in this process was the demand for equality before the law, which arose because of the differences in the legal status of people according to their classes handed down from medieval feudal society. To the extent that the bourgeoisie was economically successful with the development of trade and industry, it increasingly demanded legal equality and equal freedom.18 The intellectual foundation for this was provided by the theories of rational natural law and classical liberalism – above all, those by Hobbes, Locke, Rousseau, Smith, Hume, and Kant.19 The rational doctrine of natural law derives inalienable universal rights from the natural freedom and equality inherent in every human being.20 Classic liberalism also promises that everyone’s freedom will by itself lead to a state of general well-being.21 Inspired by this, a bourgeois emancipation movement was formed, and over time, it succeeded in enforcing constitutional orders that guaranteed legal equality and certain fundamental freedoms, curbed state power through the separation of powers and legal binding, and involved wealthy people in legislative procedures.22

Although these achievements satisfied the property bourgeoisie, they could not satisfy the petty bourgeoisie and the constantly growing workforce who continued to be excluded from political participation and restricted in the exercise of their rights and freedoms. A powerful democratic movement thus emerged during the 19th century that called for equality of political participation.23 It gradually achieved the extension of the right to vote to broader strata first and finally to universal and equal voting rights.

For Koselleck, the French Revolution marks the decisive moment from which the most important features of the modern concept of equality occurred, because once the Declaration of the Rights of Man and of the Citizen (DRMC) “had opened up the social space of expectation, […] every program strove for further realization in the name of freedom or equality or both”.24 In the 18th century, the changing expectations of the European people set the stage for new ambitions, which “were visualized as a new beginning, a true political phenomenon”.25 According to Koselleck, the expansion of the concept of equality achieved its full potential through the coinage of its semantic after the DRMC. This declaration “led very slowly to a fuller disclosure of the term equality on the grounds that before the revolution categories of people – like women and slaves – were banned from the political public sphere”. The people understood that consistent attempts were needed to eliminate the privileged social layers of the aristocratic order. “This understanding of new kinds of rights of inclusion, and the development of the concept of the public sphere, heightened the social and political expectations of the actors involved in the major revolutions of the twentieth century.”26

In reviewing this evolution, we may agree with Menke that equality, in terms of equal consideration of all, constitutes “the overriding normative idea of modernity”.27 As a new normative-ethical factor of modernity, the idea of equality is no longer satisfied with equality before God, but demands comprehensive equality before the law. Therefore, modern natural law, which must be sharply distinguished from classical law, no longer follows the traditional understanding of duty-based ethics; it no longer has the duality of rights and duties in mind. Instead, by overcoming the old doctrine of status, and from the point of view of the individual, it considers who is released from tasks and duties and who confronts the modern state with pure claims.28

However, we must consider that the modern idea of equality does not mean “being equal” or “making equal” (equalization), nor does it mean “equal distribution” – and certainly not equal distribution of everything to everyone.29 Equality in its modern orientation does not focus on the characteristics or properties of people, but on the question of how they should be treated (i.e. equal consideration of all). “Here, equality does not have the theoretical meaning that no differences can be determined between the entities considered, but a practical sense: that no distinction should be made between them.”30

Nevertheless, even this practical approach of equal consideration of people is ambiguous and can be understood at two distinct and differently developed levels. In the first stage, equal consideration of people means that they are subject to the same rule. “The paradigm of such equal consideration is primarily the impartial judge, who treats the same cases equally and unequal cases unequally.”31 However, the rule can also be a rule of inequality, such as a rule that defines privileges for certain groups of people. Here, the equal consideration of subjects is relative to the rules; it says nothing about the content of the rule. In the second stage, the equal consideration of all denotes the content of the rule itself, not just the impartial manner of its application. The paradigm of this higher-lying idea of equal treatment, which has become decisive in modern ages – particularly in recent years – is not the judge who impartially decides on individual cases, but the legislature, which only passes rules that all take into account equally. Here, equal treatment is not only a formal, but also a content-related idea: it determines the content of normative rules, not just the way in which they must be applied.32

3 The Notion of Equality (musāwāt/taswiya) in the Classical Fiqh Literature

Terminologically put, equality is represented in Arabic with “taswiya” and in modern literature rather with “musāwāt”, signifying that both observe equality and fairness.33 Musāwāt is an Arabic noun formation (maṣdar) from the root s-w-y of the third stem, with the same meaning as the first stem. The verb sawiya was originally used in the sense of “to be equal, to be of equal value” and in the third stem also as “to make equal” or “to balance”.34 Taswiya is another noun formation from the second stem, literally in the sense of “equalization”.35

The notion of taswiya was familiar to the legal community. Most fiqh books referred to it as one of the requirements of the qāḍī (judge), who had to be impartial and fair to the parties or as the neutral position of the ruler towards his subjects.36 According to the classical fiqh books, it was obligatory for the judge to observe the principle of equality between the two parties “even in looking and greeting, speaking, sitting, keeping silent, and also in different kinds of appreciations, etc.”37 Here, taswiya was understood to mean the Aristotelian principle of personal justice (i.e. treat like cases alike),38 which was also received and expanded by Islamic philosophers such as al-Fārābī.39 In this sense, it coincides with the ʿadl term, which stands for “balance” and “justice” in general, and as a specific legal term in fiqh literature, it means “irreproachability” of the qāḍī (judge) and witnesses before the court. Furthermore, particularly with a view of the characteristics of the ruler, the ʿadl term was given a central role. In this context, ʿadl was understood as the opposite of ẓulm (tyranny, injustice). According to al-Māwardī, ʿadāla, the quality of ʿadl, is described as a state of moral and religious integrity of the ruler.40 For ̣al-Ġazzālī, ʿadl (justice) differs from ẓulm (tyranny) only through the Sharia laws.41

The taswiya term has also been used in other sections of Islamic law, such as in the chapters on purity, prayers, zakāt (special alms), education, trade, endowment, gift, will, marriage, and punishment. For instance, taswiya in the payment of zakāt means considering equality among needy people in the absence of any reason for preference;42 taswiya of the teacher specifies equal treatment of students in education;43 and taswiya in trade requires the seller to consider equality between buyers and not to put any difference between young and old and between hagglers and non-hagglers.44 Furthermore, in parenting, there should be taswiya in giving gifts to children;45 and in marriage, it should be present between husband and wife/wives in alimony, good cohabitation, intercourse, and other matters.46

Moreover, apart from the classical fiqh literature, the idea of human equality also has a long tradition in the Islamic faith.47 Indeed, the egalitarian approach of early Islam was one of the main reasons that marginalized groups initially joined it. There are also interesting examples from the economic life of the early Islamic community on this subject.48 What is certain is that, according to the religious and legal definition, all Muslims should enjoy the same position.49 A legal gradation among Muslims was not even permissible according to the theory. Moreover, Islam categorically rejects any preference or disadvantage on the basis of skin colour, descent, or ethnic origin ethnicity.50 Equality in this sense went beyond the equality and brotherhood of all Arabs and spoke of the equality of all people who professed Islam. In his “farewell sermon” a few weeks before his death, Muḥammad said specifically, “An Arab is no better than a non-Arab, and a non-Arab is no better than an Arab. A white man is not superior to a black man, nor a black man to a white man. You are all children of Adam, and Adam was made of soil.”51 It was precisely this teaching of Islam that aimed to eradicate all social and genealogical differences. This attitude is considered to be one of the reasons for the rapid spread of Islam in large areas of North Africa and Asia. However, history is more complicated and historical events rarely unfold according to theories. Nevertheless, the idea of equality among Muslims, although often neglected, has always been viewed as an ideal worth striving for. This also explains why Islamic law did not theoretically develop a hierarchical status theory. Albrecht Noth sees here the real reason why

for the societal fragmentation of the ‘umma’ (to this day!) almost never the (over a long period of time constant) ‘class’ (= vertical structure), but rather the one that bridges social-material differences – ‘group’ / firqa, ṭāʾifa, fiʾa’ (= horizontal structure) was characteristic, even ideal-typical.52

Howbeit, despite this attitude, the term taswiya or musāwāt – apart from a few exceptions53 – has rarely developed a political dimension. Only in the course of the encounters with modern Western ideas and concepts during the 19th century, the egalitarian aspect of Islam became attractive again. Until recently, many Islamic movements, at least in theory, appeared with an egalitarian claim. In this way, in the 20th century, they protested against both the enormous class differences and the widening gap between the rich and the poor – they were in a sense socially revolutionary.54 Thereby, the Islamic community at the time of the Prophet Muḥammad in the early seventh century had still served as a model for change.

Next, we investigate how this conceptual shift came about by assessing some Arabic, Persian, and Ottoman-Turkish texts from the 19th century.

4 The Semantic Modification of the musāwāt/taswiya Concept during the 19th Century

The beginning of the 19th century marked a turbulent phase of new concepts, ideas, and challenges for the Islamic world. Not only Arabic, but also Persian and Ottoman-Turkish languages witnessed palpable changes in concepts and terminologies: “Political and social vocabularies rapidly transformed, absorbed new meanings, and acquired varying forms.”55 In the following sections, we briefly review these changes and their mutual influence on the three aforementioned languages, with a focus on the concept of equality (musāwāt/taswiya).

4.1 Arabic Literature

In recent Arabic political language, the concept of human equality took centre stage when the ideas of the French Revolution reached the region. An examination in primary Arabic texts from around 1800 shows that, still at that time, the word widely maintained its previous, and frequently non-political medieval, semantics.56 This is illustrated especially in some Arabic historical sources of the early 19th century. The chronicle of ʿAbd ar-Raḥmān al-Ǧabartī (1753–1825) exemplifies this non-political use of the word equality. He and other contemporary chroniclers, such as Amīr Ḥaydar aš-Šihābī (1761–1835), incorporate into their works complete French proclamations, which Napoléon, immediately after the French landing in Egypt (1789), declared to the “Egyptian nation” (al-umma al-Miṣriyya) and the inhabitants of Cairo. According to aš-Šihābī (in his chronicle later called Tārīḫ Amīr Ḥaydar) and al-Ǧabartī, in the first proclamation, Bonaparte announced that the goal of the French invasion was to liberate the country from slavery and to exploit the “race” of the Mamlūks and their autocratic beys. The residents, their families, their homes, and their property would be protected; their way of life and their religion would be respected; and dīwāns would be established for self-government, staffed with local dignitaries.57 At the beginning, the proclamation states:

On behalf of the French Republic which is based upon the foundation of liberty [ḥurriya] and equality [taswiya] […].O ye Egyptians, they may say to you that I have not made an expedition hither for any other object than that of abolishing your religion; but this is a pure falsehood and you must not give credit to it, but tell the slanderers that I have not come to you except for the purpose of restoring your rights from the hands of the oppressors and that I, more than the Mamluks, serve God – may He be praised and exalted – and revere His Prophet Muhammad and the glorious Qur’an.

And tell them also that all people are equal in the eyes of God [mutasāwiyīn ʿind Allāh] and the only circumstances which distinguish one from the other are reason, virtue, and knowledge. But amongst the Mamluks, what is there of reason [ʿaql], virtue, and knowledge [ʿulūm], which would distinguish them from others and qualify them alone to possess everything which sweetens life in this world? […] from this day forward no Egyptian shall be excluded from admission to eminent positions nor from acquiring high ranks.58

As we can see, here, taswiya was used both in a political context (a principle of the French regime) and in a religious context (in the eyes of God). Apart from the main political intention to win over the people in the fight against the Mamlūks, in the proclamation, the French also presented their main political principles (i.e. “freedom” combined with “equality”).

The primary reactions of aš-Šaiābī and al-Ǧabartī to these ideas was not particularly affirmative and supporting. They systematically refuted the content of the French proclamation. For al-Ǧabartī, the assumption that “all people are equal” was “a lie, ignorance and fatuity”, particularly because “sometimes they break this rule according to their whims and inclinations or reasoning”.59 Moreover, for aš-Šihābī, the “corrupt French belief” that “all humans are equal” destroyed the laws of all religions.60

This apolitical meaning of taswiya slowly began to change between 1820 and 1860. Those years are particularly characterized by political and social upheavals and the related transformations in the Arabic language. The growing religious (e.g. missionary activities), political (regional influences, triggering of the Ottoman reforms), and economic ties to Europe manifested themselves in a large number of areas, all of which in turn strengthened the cultural adaption to the West.61 During these times, some reforms by Muḥammad ʿAli – the then Egyptian ruler (1805–1848) – brought about, in particular, considerable language changes, notably through the delegation of student groups to Europe and the establishment of a language school for translations.

The famous Egyptian modernizer Rifāʿa Rāfiʿ aṭ-Ṭahṭāwī (1801–1873) was one of the most important figures whom Muḥammad ʿAlī sent to Paris. His travelogue is the result of a five-year study-based visit to Paris and is titled – based on the English translation by Daniel Newman – “The Extraction of Pure Gold in the Abridgement of Paris” (Taḫlīṣ al-ibrīz fī talḫīṣ Bārīz).62 The book is still of interest today as one of the few Arabic documents from the 19th century that reveals the Islamic view of the West at that time. In particular, Ṭahṭāwī’s efforts to translate and reproduce legal and socio-political terms, ideas, and conceptions make it possible, based on this text, to claim a break in the (literary) history of the Arab or Islamic countries.

Moreover, after his return from Paris, Ṭahṭāwī was involved in the development of national education for most of his life. As head of the language school founded by Muḥammad ʿAlī in Cairo (madrasat al-alsūn), he intensively promoted translation work from French throughout his life. With Ṭahṭāwī’s travelogue, as well as his later activity as a translator of French texts, one of the most important starting points for the introduction of modern ideas into the Arab world is said to have been set.63 However, Ṭahṭāwī is seen less as someone who only introduced European ideas into the Arab world than as someone who justified an Arabic interpretation of modernity.64 Egyptian authors refer to him as the “father of Egyptian democracy”65 and as a “pioneer of the Enlightenment”66 or see him as a central figure of the nahḍa.67 The idea of an intermediary position thus primarily follows from his comparisons between Egyptian, Islamic, or Arabic customs on the one hand and European, French, or Parisian customs on the other.68

Thanks to Ṭahṭāwī’s efforts and the activities of the Translation School, many translated works were published between 1820 and the 1850s, particularly in the fields of natural sciences, social sciences, philosophy, history, and geography. Glossaries and notes on neologisms were attached to some of these translations, adding new ideas and concepts to temporal Arabic. Due to these newly imprinted neologisms and the borrowing of words from European languages, mainly from French, the Arabic language underwent sequences of change.69

During those years, the semantic field of taswiya also expanded. Along with the political reforms during the tanẓīmāt,70 the term acquired new socio-political dimensions and acquired a central function in most areas of the Ottoman Empire. These changes and the political-semantic expansion of the taswiya term can also be observed in Ṭahṭāwī’s works. Unlike aš-Šihābī and al-Ǧabartī, Ṭahṭāwī extended the political aspect of the taswiya term from an internal Islamic perspective and, from this point of view, continued to relate it conceptually to the two concepts of freedom (ḥurriya) and justice (ʿadl). In the translation of the French Charte Constitutionnelle of 4 June 1814, cited in his travelogue, he provides an interesting explanation of Article 1 of the Charte and the concept of equality:

When in the first article it is said that all French people are equal before the law [mustawūn qaddām aš-Šarīʿa], this refers to all those who live in France, from the highest to the humblest. No distinction is made between them in terms of the application of the aforesaid laws of the code to the extent that legal charges can even be brought against the king, against whom a judgement is enforceable, just as it is for other people. So, behold this first article is highly conducive to the introduction of justice; it ensures the oppressed receive assistance, whereas the souls of the poor are satisfied that they are in fact important people when it comes to the execution of the laws. This matter is almost becoming a canonical saying among the French. It is also clear proof of the arrival among them of justice, and the high degree of progress in the civilized way of living. That which they call freedom [ḥurriya] and which they crave is what we call “justice” and “equity”, [ʿadl wal-inṣāf] inasmuch as “rule by freedom” means establishing equality [at-tasāwī] in judgements and laws so that the ruler cannot oppress any human being. Indeed, in this country the laws are the ultimate court and serve as a lesson.71

The assimilation of the Western concept of equality with the Arabic terms ʿadl and inṣāf, and their collocation with the notion of freedom (ḥurriya), later led to various ambiguities among Muslim scholars. As mentioned above, ʿadl and inṣāf were associated with the classical Islamic understanding of governance in which the ruler was required to avoid oppression (ẓulm); that is, to act justly according to the rules of Sharia.72 However, what made up the new political meaning of equality was the emphasis on the elimination of the aristocratic order and on the fact that the people now had a right to equal treatment, which could be enforced. Aṭ-Ṭahṭāwī, however, perceived the French concept of equality in the Islamic sense of executing ʿadl and acting lawfully according to Islamic norms. In doing so, he influenced the later developments of this term and the subsequent understandings of constitutionalism and rule of law in other Islamic languages. Later on, many Muslim scholars orientated themselves towards this interpretation and associated constitutionalism with the binding force of law. Both equality and freedom were understood precisely in this context (i.e. as a prerequisite for a legal order). “The idea of constitutionalism thus did not necessarily evolve in contrast with autocracy but rather with anarchy and absence of the execution of religions laws”. This perception of equality, as well as freedom, emerged “within the epistemic conception of religion, and it became a cornerstone in the evolving constitutional thought in Arabic”.73

Ṭahṭāwī’s definition of ʿadl points in the same direction. As an antonym to ẓulm (injustice), ʿadl refers to everyone who “fulfills his duties and responsibilities in the society and fulfills his rights to the fullest. [This person] can be said that he has acted with justice and justice has been established in that society”.74 In other words, “anyone who fulfills his religious and legal duties and fulfills his rights and his conduct is consistent with this is considered a just person”.75 The same applies to the concept of equality. According to Ṭahṭāwī, taswiya among the people (as a natural attribute of human beings) includes civil freedom and freedom in property. “Therefore, all human beings are equal in terms of making use of everything that saves and protects their lives”,76 but this equality (tasāwī) is relative because divine wisdom has made human beings different from one another, so they are different in physical and spiritual matters. Thus, “equality in this last sense means the equality of individuals before the positive law, so that both their rights and their duties are equal”.77 Regarding the concept of equality in law (taswiya fi’l-ḥuqūq), Ṭahṭāwī states,

Equality of rights means that each person should be treated according to the rules of Sharia, with the same acts and prohibitions and rights applied to others. Therefore, every human being has the right to own his/her property and basic rights as other people, and this means that people are equal in their duties and responsibilities to their society78

because for him, equality in rights also presupposes equality in duties. In this sense, to establish taswiya, people must also fulfil their respective duties to one another and to the state.79

This overlapping of the use of “taswiya”, “ḥuriyya”, and “ʿadl” in a modern context released new semantic potentials that could henceforth unfold an unprecedented dynamism. During the 19th century, not only Arabic-speaking but also, as we will see, Ottoman and Iranian scholars continued to apply aṭ-Ṭahṭāwī’s translations of equality, justice, and freedom to ascribe modern socio-political ideas and currents of the West. New word formations emerged, which in turn had a dynamic movement structure, such as political equality (al-ʿadl bis-sawiyya) and social equality (ʿadl iǧtimāʿī).80 Especially with the development and expansion of the press, the semantic field of these notions increased to include additional ideological approaches, far beyond aṭ-Ṭahṭāwī’s initial meanings.

4.2 Ottoman-Turkish Literature

It is probably not wrong to say that all tanẓīmāt reforms were mainly inspired by the idea of human equality. The different nationalities and various religious communities contained in the Ottoman Empire in the 19th century were a decisive characteristic of the empire. The idea of the social, legal, and political equality of all subjects unfolded, in the phase of the tanẓīmāt, as an answer or antithesis to the growing nationalism among the various groups of the great empire at that time and their striving for independence. Against this background, longing for equality not least formally intended equality between Muslims and non-Muslims. As we will see, in contrast to the parallel Iranian discourse, the demand for equality in the Ottoman region did not refer to other aspects of equality, such as equality between men and women.

In the Ottoman-Turkish literature, the notion of equality was represented by müsāvāt, an orthographic version of its Arabic equivalent. As mentioned above, musāwāt/müsāvāt was understood more in the sense of a neutral position of the rulers towards their subjects or the impartiality of the judge. This meaning of müsavāt, which in many ways coincided with the concept of justice and fairness (ʿadālat/ʿadālet), still remained untouched during the tanẓīmāt phase. Central Ottoman rule, which had given the respective confessional communities (millet groups)81 a certain degree of loyalty in their conflict resolution, promised to act as a neutral mediator in conflicts between different millets or different parts of the population. This interest-neutral approach to conflicts within the Ottoman Empire was called müsāvāt.82

At the beginning of the 19th century, the concept of equality before the law and the concept of equal rights and duties were not generally accepted rules in the Ottoman Empire.83 However, the müsāvāt term received a certain expansion of meaning in the Ottoman discourse under the influence of the French Revolution, particularly triggered by its Arabic translation (e.g. al-Ǧabartī, aṭ-Ṭahṭāwī). Apart from the Arabic analogue, the term was used to reflect the notion of “égalité”, which intended a political and legal equality – initially in Egypt (1798) by ʿĀtịf Efendi, who translated freedom and equality with “müsāvāt ve serbestīyet”.84 In the course of the 19th century and during the tanẓīmāt phase, the French “égalité” was almost exclusively expressed using the term müsāvāt.85 The term now stood for the abolition of the socio-political differences between the various religious communities, although its traditional meaning, which coincided closely with the concept of justice (ʿadālat/ʿadālet), was not given up. As Rifāʿa aṭ-Ṭahṭāwī interpreted the French concept of freedom and equality as the Islamic concept of justice (ʿadl), so the Grand Vizier Maḥmūd Nedīm Paşa (1818–1883) also related “equality” to the Islamic commandment of “justice and fairness” (ʿadālet ve inṣāf) in his work “Āyīne-i devlet”. His position in relation to the Western idea of equality is similar to that of al-Ǧabartī and aš-Šihābī. According to him, the French conception of equality “destroys the very foundations of the state”, while the Islamic commandment of ʿadālet ve inṣāf forms the binding basis for the ruler and the government. “Grace and justice” (luṭf ve maʿdelet) would have always satisfied the non-Muslims in the Ottoman Empire and induced them to gladly serve the state.86 Thus, in addition to the concept of freedom, the principle of equality was seen as an extension of the Islamic idea of justice. It is thus no wonder that in the Constitution of 1876, the motto of the French Revolution, namely, “Liberty, Equality, Fraternity”, was reformulated to “ḥürriyet, ʿadālet, müsāvāt” (liberty, justice, equality) to better illustrate the affinity of these three terms.

The idea of the equality of the different millets developed gradually within the tanẓīmāt phase and reached its climax with the constitution of 1876, whereby non-Muslims were no longer perceived as mere subjects (tebaʿa) of the Ottoman Empire, but just like the Muslims as “ʿos̱mānlılık”, so as a member of the Ottoman nation, with equal rights and duties. It may be worthwhile to take a cursory look at this development in the tanẓīmāt-documents.

4.2.1 The Rescript of Gülḫāneh (3 November 1839)

The Edict of Gülḫāneh was an Ottoman sultan’s first fermān (decree), which was addressed to all his subjects (tebaʿa) regardless of their religion. Although there is still no trace of the term müsāvāt in the entire edict, a significant effort to abolish discrimination can be observed in all three focal points of the decree (protection of life, honour, and property, as well as tax and military reforms). The decree promises “perfect security to the inhabitants of our empire in their lives, their honor, and their fortunes”, as “these imperial concessions shall extend to all our subjects, of whatever religion or sect they may be (followers of Islam and other millets); they shall enjoy them without exception”.87

Ignoring the word “equality” and using ambiguous phrasing indicates the Ottoman’s caution not to emphasize the radical break from the previous situation.88 In the interests of justice, the decree promotes certain inequalities in tax revenue and military service. Accordingly, “each member of Ottoman society should be taxed for a quota of a fixed tax according to his fortune and means in proportion to the possessions and assets”. In the military sector too, with regard to the population of each country, it is now “necessary to establish laws to regulate the contingent to be furnished by each locality according to the necessity of each individual country”.

4.2.2 The Rescript of Iṣlāḥāt Ḫaṭṭ-i Hümāyūn (1856)

The decree of 1856 deals with the equality of all subjects of the Ottoman Empire much more intensively than the Gülḫāneh edict. This imperial fermān not only explicitly guaranteed the legal equality of all subjects “regardless of religion or sect” (§1), but allowed “all ecclesiastical privileges and immunities” (§2) to continue to exist. Although the “group division” (camāʿat) of the subjects was continued, attempts were made to remove all forms of discrimination of one group against another. Thus, §7 guarantees that

Every distinction or designation tending to make any class whatever of the subjects of my Empire inferior to another class, on account of their religion, language, or race, shall be forever effaced from the Administrative Protocol. The laws shall be put in force against the use of any injurious or offensive term, either among private individuals or on the part of the authorities.

The equal treatment despite group differentiation is also noticeable in § 22: “The provisions of the laws on bribery, embezzlement and extortion apply to all of our subjects, whatever group they belong to or whatever office they hold, in the legal forms”.

Furthermore, the decree goes so far as to guarantee equal opportunities for all subjects regarding access to state offices (§9). All subjects are also admitted to the civil and military schools of the empire “without distinction or exception” (§10). Likewise, “every religious community is authorized to establish Public Schools of Science, Art, and Industry” (§10).

Apart from equal rights and equal status between all subjects, the decree also provides for equal obligations. In this regard, non-Muslims were exempt from the ḏimmī-tax (cizya), but had to pay the same taxes as Muslims from which they were previously exempt. “The taxes are to be levied under the same denomination from all the subjects of my empire, without distinction of class or of religion” (§18). Accordingly, the exemption of non-Muslims from military service was lifted: “Just as the equality of taxes entails the equality of other burdens, so equal rights also give rise to equal duties. Therefore, Christians and the other non-Muslim subjects, as well as the Muslim population, will have to submit to the provisions that have recently been issued on participation in military service” (§15).

4.2.3 The Ottoman Constitution of 1876

As already mentioned, Sultan ʿAbdülḥamīd II promised all his subjects freedom, justice, and equality in the preamble to the constitution of 1876. The first fundamental right granted by the constitution sought to abolish longstanding group differentiation: “All subjects of the Ottoman Empire, whatever religion or sect they belong to, are called, without exception, ‘Ottomans’” (Art. 8). The term ʿos̱mānlılık, which previously only applied to Muslims, was now extended to the entire population. This change of title alone aimed at major changes in the self-perception of the various Ottoman peoples. As the famous Turkish sociologist Ziya Gökalp mentioned, thenceforth, “Ottomanism should no longer represent a group with the same religious consciousness; it should rather take the form of a society with the same political consciousness, regardless of the respective religious beliefs”.89

The basic rights following Article 8 apply entirely to “all Ottomans” (ʿos̱mānlıların kāffesi); the freedom and personal liberties are addressed to “all Ottomans” (Art. 9, 10), and the state religion is Islam, but all other religions are granted “free exercise” (Art. 11). Moreover, in the course of freedom of education, “every Ottoman is entitled to give public or private instruction” (Art. 15).

However, the equality of “all Ottomans” is most clearly evident in Article 17: “All Ottomans are equal in the eyes of the law. They have the same rights, and owe the same duties [mütesavidir] towards their country, without prejudice to their denominational and religious status”. Equal opportunities for the exercise of state offices (Art. 19), which had already been granted since the Ḫaṭṭ-i Hümāyūn, as well as the equalization of taxes for all “Ottoman subjects in relation to their property” (Art. 20), were also ensured under this constitution.

In summary, it can be said that the changes in the Arabic language prior to these edicts released new semantic potentials that unfolded an unprecedented dynamism, which in turn formulated new political words outlining more complex ideas. In doing so, the tanẓīmāt edicts went one step further and contributed to the formal discourse by establishing a formal correlation between “freedom”, “equality”, and “civil community” (Ottomanism) – “a theorization that marked a formal attempt to establish a civil foundation for the Ottoman community”.90

4.3 Persian Literature

The history of the Qajar dynasty (1779–1925) coincides with the birth of modern Iran. As with the Ottoman Empire, Iran in the 19th century was also characterized by the implementation of various modernization measures. At the same time, the intellectual upheavals of the second half of the 19th century brought about the first intellectual debates and subsequently great social changes, including significant linguistic modifications, all of which contributed to the development of the Iranian Constitutional Revolution of 1906.

One of the pre-revolutionary writings that significantly influenced the development of the freedom movement of the Iranian people was the treatise Yek kalame by Mīrzā Yūsof Ḫān Mostašār od-Doule (died in 1895). Similar to aṭ-Ṭahṭāwī, Mīrzā Yūsof also belonged to the group of Qajarian statesmen who made use of their many foreign travels for socio-political reform programs, but still felt bound by their religious and traditional backgrounds. The treatise Yek kalame (One Word) was written between 1867–1871, when Mīrzā Yūsof worked as a Chargé d’Affaires in Paris and had the opportunity to make many trips to other European cities. His encounter with the West, as well as his close acquaintance with Mīrzā Malkom Ḫān (died in 1908)91 may have brought Mīrzā Yūsof to pay particular attention to the concept of law and its crucial importance in the preparation and implementation of modern socio-political and administrative transformations. His observations led him to the result that “the one word that sums up all the order and administration of Europe is the law (qānūn)”.92 This is why, for the establishment of a new legal system, Mīrzā Yūsof considers it appropriate to first take his cue from the French DRMC from 1789. For Mīrzā Yūsof, this declaration was one of the first documents manifesting the rule of law. If he could substantiate that its 17 articles resonate with the “spirit of Islam”, the DRMC could be considered as an important cornerstone for the development of a modern Iranian constitutional state. Thus, the ultimate purpose of Yek kalame was to disclose and consistently demonstrate the conformity of the general rules of the DRMC with Islamic principles. Besides the effective contribution of Yek kalame in providing a theoretical basis for legalization and rule of law, the translation of the DRMC in Persian and the explanation of each article on the basis of Islamic precepts were significant steps in the pre-revolutionary Iranian literature.

Regarding the concept of equality, the first thing that stands out is the primary position it enjoys in Yek kalame. Likewise, in Art. 1 of the DRMC, Mīrzā Yūsof begins his first category with the demand for “equality (mosāvāt) in the judiciary and in the application of the law”. Placing strong emphasis on mosāvāt, he continues, “This [idea] is one of the cornerstones of Islam. And a country that does not adhere to it would fall into destruction, calamity, oppression and foreign subjugation”.93 Under the second point, he deals with the principle of merit, also associated with equality.

As we can see, Mīrzā Yūsof indicates the concept of equality only in relation to legal and judicial equal treatment. There is no talk of equality of rights in Art. 1 of the DRMC.94

With little morphological changes to the Arabic and Ottoman-Turkish versions, Mīrzā Yūsof translates égalité into mosāvāt. Based on the Aristotelian principle of equality, Mīrzā Yūsof explains his definition of mosāvāt: “[…] mosāvāt in justice and administration means applying the rules of the code equally to all people, high or low, ordinary or noble, weak or powerful, and not favoring or discriminating against anyone; even if the lawsuit is against the ruler in person, the law applies to him just as it does to all others.”95 He subsequently refers not only to several verses of the Quran (such as 4:48; 16:90) and traditions (such as the story of Imām ʿAlī’s judgment process), but also to historical events (such as the indictment against the Abbasid caliph Hārūn ar-Rašīd), which all called for just and fair judgment and which he interpreted as examples of mosāvāt.96 To strengthen his interpretation, he (similarly to aṭ-Ṭahṭāwī) defines the Arabic term ʿadl (justice), which appears constantly in the above-mentioned Quranic verses, as tasviya (equate), since from his point of view, ʿadl in the Arabic language represents “compensation” or “balance”.97

This clearly demonstrates how the Arabic and Ottoman views of equality flowed into the Iranian world of thought. Mīrzā Yūsof’s understanding of equality also coincides with his understanding of justice, which is reminiscent of the Aristotelian image of personal justice. However, as mentioned above, the Islamic ʿadl made no reference to the modern concept of justice, which was established primarily at the time of the Enlightenment by Hobbes, Locke, and Rousseau and which was to be understood as an essential concept of the social contract in the sense of a contractual relationship among people.98 The new concept of justice, which went beyond equal treatment and equal rights, but included them, was closely related to the new understanding of law. This new understanding of law became increasingly detached from the idea of a divine order and was understood as an institution that expresses the general will (Art. 6 DRMC) and that should be used to balance different human interests. Furthermore, since it is an expression of the general will, “all citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes …” (Art. 6 DRMC).99 With the social contract, everyone had sacrificed an equal share of their natural freedoms or received the same level of secured freedoms.100 Neither aṭ-Ṭahṭāwī nor Mīrzā Yūsof seem to have been entirely familiar with the concept of equality that was built on the basis of this new legal understanding. However, as previously mentioned, the idea that such an understanding of equality should be included not only in the sense of “equality before the law”, but also – and above all – in the sense of “equality in the law” (i.e. the fact that in addition to the administration and the judiciary, the legislature is also bound by the principle of equality) is a new development in legal history, which cannot be observed in the French Declaration either.101 The equality of men and women and the prohibition of discrimination with regard to gender, origin, racial affiliation, language, origin, belief, religious or political views, or disability are new steps in the history of ideas, which were not yet fully developed at the inception of the DRMC. Therefore, neither the equality of men and women nor the prohibition of discrimination appeared in it.

Mīrzā Yūsof is also content with mosāvāt in the sense of equality in application of the law, in contrast to injustice and anarchy. Rather than exploring the substantive norm differences in the various norm addressees in Islam, his complaints were directed more towards the usual procedure of the judges, who arbitrarily treated the same facts unequally.102 This explains why he also associated equality and constitutionalism with rule of law and declared it a prerequisite for a legal order. He attributed this unequal treatment of the Islamic rules to the lack of legal texts (for him the golden “one Word”) that prescribe a uniform measure and thus prevent arbitrary actions.103

Yek kalame became an important treatise in the history of Iran’s legal evolution. One of its successful achievements was to introduce a plethora of modern socio-political concepts into the Persian language, which triggered an unprecedented dynamism dominating the whole subsequent constitutional discourse. By associating mosāvāt with ʿadl (justice), and both of those with “the one Word” (written law), he framed equality as the main demand of the constitutional revolutionaries. Thereafter, equality coincided with constitutionalism and changed the history of Iran around 1906. Apart from this, the central significance of Yek kalame became particularly evident in the post-revolutionary period.104 The book was used by the first constitutional committee as a pattern for processing the constitutional amendment. Under the influence of Mīrzā Yūsof, the concept of equality became an important part of the Iranian Constitution of 1906, and the term mosāvāt was one of the most intrusive and critical catchwords in the constitution. Article 8 of the Constitutional Amendment can be seen as the key issue among many of the groups involved in the disputes in and outside the parliament – it was the very core of the constitutionalists’ demands, for which they apparently even spent their nights in front of parliament for six months.105 After lengthy discussions, Article 8 of the Constitutional Amendment was accepted with the following wording: “The people of Iran are to enjoy equal rights (motasāvī al-ḥoqūq) before the state laws”.

5 Conclusion

The real dispute between modern and traditional views became apparent with the establishment of the first National Assembly and the drafting of a constitutional text in Iran, or with the convening of parliament as a result of the “Young Turkish Revolution” (1908) and, particularly, after the fall of the Ottoman Empire and the strengthening of various ideologies in Arabic-speaking areas – leaning on the new, “modern”, and “Western” ideological currents such as Marxism and nationalism. Until then, the political history of most Islamic countries knew no other form of rule apart from absolutism. Consequently, the adoption of new institutions and structures faced disapproval. Although scholars such as aṭ-Ṭahṭāwī and Mīrzā Yūsof as well as other authors, introduced these new concepts into Islamic political thinking even before the constitutional reform movements in that area, the clear discrepancy between those concepts and the already existing perceptions evolved into a continuous dilemma only after they had been confronted with the socio-political realities of the post-revolutionary phase. Reasonable interpretations and valid understandings of these basic concepts became subject to multiple contestations and disputes. Hence, the concepts became “bywords” (Schlagworte)106 and later influenced further developments. For Koselleck, this is the main characteristic of modern central concepts: “While earlier concepts are distinguished by the manner in which they bring into one expression experience assembled over a period of time, the relation of concept to that conceived is now reversed. Modern political terminology is typified by its containment of numerous concepts (Begriffe) that are more exactly anticipations (Vorgriffe). These concepts are based on the experience of the loss of experience, and so they have to preserve or awaken new expectations.”107 In the legal and political language of the late 19th century, the difference between experience and expectation increasingly expanded. According to Koselleck, this is an indication of the beginning of a new period: “more precisely, that Neuzeit (modern times) is first understood as a neue Zeit (modern time) from the time that expectations have distanced themselves evermore from all previous experience”.108

Most of today’s Islamic countries are influenced by the modern patterns of Western law and state theories. By codifying the multiple and pluralistic Sharia rules, the entire legal system of most Islamic countries has evolved into a new stage of development with categorized legal texts, a more or less structured judiciary, and newly introduced administrative and judicial procedures. The embedding of Sharia rules within modern institutions was originally intended to facilitate the transition to a constitutional state. However, such a mixed construct of law deepened and multiplied the various discourses and discussion contexts in which Islamic law was once interwoven. This may also be why, in many Islamic countries, the transition to a constitutional state was not smooth and why currently, in most cases, the assumption of a crisis of the constitutional state is to be taken seriously. The causes of the existing crisis – which resulted in a significant identity crisis and led to major political and social upheavals in the region to this day – are diverse109 and must be constantly re-examined, re-studied, and re-explored in today’s scientific debates.

Biography

Ghazaleh Faridzadeh is currently University Assistant at the Department of Near Eastern Studies of the University of Vienna and Assistant Professor of Public Law at the Family Institute of the Shahid Beheshti University in Tehran (on leave). Prior to that, she was a Senior Research Fellow at the Max-Planck-Foundation for International Peace and the Rule of Law in Heidelberg. She obtained her doctoral degree in “Public Law and Fundamentals of Law” at the Humboldt University of Berlin. Her dissertation was graded with “summa cum laude” and awarded as the best dissertation of the year 2014 by the Law Faculty of the Humboldt University. Her main research interests concern aspects of legal philosophy, legal history, law and language and comparative constitutional law.

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1

Koselleck, Social history, p. 308.

2

Koselleck, Futures past, p. 3.

3

See Koselleck, Social history, p. 311.

4

Ukasa, Freedom, p. 19.

5

See Ringer, The Discourse, p. 58.

6

See Shaw/Shaw, History of the Ottoman Empire and Modern Turkey II; Fahmy, The Era of Muhammad ‘Ali Pasha, pp. 139–179.

7

Ringer, The Discourse, p. 8.

8

See Ringer, Education, p. 10.

9

Koselleck, Begriffsgeschichten, p. 10.

10

Koselleck, Begriffsgeschichten, p. 10.

11

Koselleck, Futures past, p. 267.

12

See Koller, Gleichheit, p. 438.

13

See Baranzke, Menschenwürde, p. 15 et seq.

14

See Maeir, Freiheit, pp. 25–39.

15

See Dann, Gleichheit, p. 998 et seq.

16

Koselleck, Limits of Emancipation, p. 249.

17

See Ritter, Ursprung und Wesen, p. 236.

18

See Dann, Gleichheit und Gleichberechtigung, p. 85 et seq.

19

See Reinhard, Vom italienischen Humanismus, p. 294 et seq.

20

See Dann, Gleichheit und Gleichberechtigung, p. 93 et seq.

21

See Koller, Gleichheit, p. 439.

22

See Dann, Gleichheit, p. 1024 et seq.

23

See Dann, Gleichheit und Gleichberechtigung, p. 192 et seq.

24

Koselleck, Futures Past, p. 49.

25

Lara, Disclosure, p. 53.

26

Lara, Disclosure, p. 55.

27

Menke, Spiegelung, p. 2.

28

See Maeir, Freiheit, pp. 25–39.

29

Menke, Spiegelung, p. 2.

30

Menke, Spiegelung, p. 2.

31

Menke, Spiegelung, p. 3.

32

See Menke, Spiegelung, p. 3.

33

See Ṣafīpūrī, Muntahā al-ʿarab, under m-š-w.

34

See Lane, Arabic-English Lexicon 1: IV, p. 1476.

35

See Lane, Arabic-English Lexicon 1: IV, p. 1476.

36

See e.g. al-Ḥillī, Šarāʾiʿ al-Islām IV, p. 872.

37

Daylamī, al-Marāsim, p. 231.

38

See Aristoteles, Politik, 1302a7 et seq.; see also Castoriadis, Wert, Gleichheit, Gerechtigkeit, Politik, pp. 221–276; Salomon, Gerechtigkeit bei Aristoteles, pp. 50–72.

39

See i.a. al-Fārābī, Fuṣūl muntazaʿa, p. 71.

40

See al-Māwardī, al-Aḥkām as-sulṭānīya, pp. 5, 205 et seq.

41

See al-Ġazzālī, Iḥyāʾ, pp. 91, 112 et seq.

42

See aš-Šahīd aṯ-Ṯānī, Šarḥ al-lumʿa II, pp. 55, 61.

43

See aš-Šahīd al-Awwal, ad-Dorūs aš-šarʿiya III, p. 176.

44

See al-Muḥaqqiq al-Ḥillī, al-Muḫtaṣar an-nāfiʿ, p. 120.

45

See an-Naǧafī, Ǧawāhir XXVIII, p. 190.

46

See an-Naǧafī, Ǧawāhir XXXI, p. 182.

47

Prophet Muḥammad should have said, “People are equal as the teeth of a comb.”; see al-Yaʿqūbī, Tārīḫ II, p. 100.

48

See Abid, Gleich wie die Zähne eines Kammes, p. 104.

49

See e.g. Quran 49:13: “O men! Behold, We have created you all out of a male and a female, and have made you into nations and tribes, so that you might come to know one another. Verily, the noblest of you in the sight of God is the one who is most deeply conscious of Him. Behold, God is all-knowing, all-aware”. English translation of the Quran by Muhammad Asad.

50

See e.g. Quran 30:22: “And among his wonders is the creation of the heavens and the earth, and the diversity of your tongues and colours: for in this, behold, there are messages indeed for all who are possessed of [innate] knowledge”.

51

See al-Yaʿqūbī, Tārīḫ II, pp. 123, 110.

52

Noth, Schichten und Gruppen, p. 143.

53

One of these exceptions can be found in the literary and cultural controversies of the Abbasid time, where those of the Šuʿūbiyya, non-Arabs seeking equality with the ruling class of Arabs, were sometimes known as the ahl at-taswiya “proponents of equalization”, see Goldziher, Mohammedanische Studien I, p. 165; Bosworth, Musāwāt.

54

See Abid, Gleich wie die Zähne eines Kammes, p. 104 et seq.

55

Ukasa, Freedom, p. 18.

56

See Ukasa, Freedom, p. 19.

57

See al-Ǧabartī, Tārīḫ, p. 23 et seq.; aš-Šihābī, Tārīḫ II, p. 222 et seq.

58

al-Ǧabartī, Tārīḫ, pp. 24–26.

59

al-Ǧabartī, Tārīḫ, p. 28.

60

aš-Šihābī, Tārīḫ II, p. 226.

61

See Ukasa, Freedom, p. 85.

62

Newman, An Imam in Paris, p. 100.

63

See Livingston, Western Science, pp. 543–564; Stowasser, aṭ-Ṭahṭāwī in Paris, p. 22; Stephan, Aṭ-Ṭahṭāwī als Kulturvermittler, p. 254 et seq.

64

See e.g. Schaebler, Civilizing others, pp. 3–7.

65

ʿAwaḍ, Tārīḫ al-fikr al-miṣrī, p. 268.

66

See ʿImāra, Rifāʿa aṭ-Ṭahṭāwī.

67

See ʿAllām/Badawī/Lūqā, Taḫlīṣ, p. 6.

68

See Hanafi, Dialectis, pp. 157–159; Stephan, Aṭ-Ṭahṭāwī als Kulturvermittler, p. 254–256.

69

See Ukasa, Freedom, p. 86.

70

Tanẓīmāt (plural of tanẓīm), is derived from the verb ḳānūn tanẓīm etmek (to draft a law). The term denotes a period of reform in the Ottoman Empire that began with the proclamation of the Edict of Gülḫāneh (Ḫaṭṭ-i Şerīf of Gülḫāneh) in 1839 and ended with the beginning of the First Constitutional Era in 1876. The milestone of the so called tanẓīmāt reforms was the introduction of the first Ottoman Constitution in 1876, which was abrogated very soon (as early as 1878), see i.a. Berkes, The Development of Secularism, pp. 137–200.

71

Newman, An Imam in Paris, p. 206.

72

See Newman, An Imam in Paris, p. 206, fn. 1.

73

Ukasa, Freedom, p. 110.

74

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 510.

75

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 510.

76

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 509.

77

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 509.

78

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 509 et seq.

79

Aṭ-Ṭahṭāiwī, Al-Aʿmāl al-kāmila II, p. 510.

80

See Ukasa, Freedom, p. 112 et seq.

81

During the Ottoman era, the empire had carried out a classification among the minorities, which divided them according to their religious affiliation and not their ethnic group. The Ottoman Empire was thus categorized into so-called millets (from the Arabic milla) in the sense of religious communities, including Muslims. Each millet was granted a high degree of legal, administrative and economic autonomy, which was administered by the respective religious organization. They laid down their own laws, settled their own disputes and collected and distributed their own taxes but were committed to loyalty to the caliph, see i.a. Barkey, Islam and Toleration, pp. 5–19; Ursinus, Zur Diskussion um ‚millet‛, pp. 195–207.

82

See Doganalp-Votzi/Römer, Herrschaft und Staat, p. 120 et seq.; Reinkowski, Dinge der Ordnung, p. 260 et seq.

83

See Davison, Essays in Ottoman and Turkish History, p. 112 et seq.

84

See Bosworth, Musāwāt.

85

See Doganalp-Votzi/Römer, Herrschaft und Staat, p. 116.

86

See Abu-Manneh, The Sultan and the Bureaucracy, p. 265.

87

According to the translation posted by the Atatürk Institute of Modern Turkish History of Boğaziçi University, (translator unknown) with slight corrections.

88

See Hurewitz, Diplomacy, pp. 113–116; Ukasa, Freedom, p. 92.

89

Sobotta, Das Amt des Kadi, p. 36 (quoting Ziya Gökalp).

90

Ukasa, Freedom, p. 93.

91

Mīrzā Malkom Ḫān (1834–1908) is regarded by many scholars as the first radical advocate of the introduction of state laws (qānūn) in Iran, see i.a. Algar, Mīrzā Malkum Khān.

92

Mīrzā Yūsof, Yek kalame, p. 23 et seq. All translations from this edition are the author’s.

93

Mīrzā Yūsof, Yek kalame, p. 39.

94

However, it might be worth mentioning that this understanding was not very far from the concept of equality mentioned in the first draft of the DRMC. Indeed, the DRMC addressed the equality of all citizens, but at that time citizens only meant mature men. This unwavering emphasis of DRMC on civil liberties while neglecting many equality rights sparked great controversy in subsequent years, especially among the Jacobins and Girondins, see de Lamartine, Girondisten und Jakobiner. Equal rights for men and women were only explicitly addressed in the 1791 “Déclaration des droits de la femme et de la citoyenne” (Declaration of the Rights of Women and Citizens), see Schröder, Olympe de Gouges, p. 49; Bock, Frauen in der europäischen Geschichte, p. 53 et seq.

95

Mīrzā Yūsof, Yek kalame, p. 36.

96

Mīrzā Yūsof, Yek kalame, p. 36.

97

Mīrzā Yūsof, Yek kalame, p. 36.

98

See Rousseau, Discours sur l’inégalité.

99

All citations of DRMC are from the official English translation of the document, translated by the French Constitutional Council.

100

See Samwer, Die französische Erklärung, p. 28.

101

See i.a. Gerhard, Frauenbewegung und Feminismus.

102

See Mīrzā Yūsof, Yek kalame, p. 38.

103

See Mīrzā Yūsof, Yek kalame, p. 38 et seq.

104

See Ādamiyyat. Fekr-e Āzādī, p. 186.

105

See Hedāyat, Gozāreš-e Īrān, p. 188 et seq.

106

See Koselleck, Begriffsgeschichten, p. 84.

107

Koselleck, Futures past, p. 252.

108

Koselleck, Futures past, p. 263.

109

See Kamali, Constitutionalism in Islamic Countries, pp. 19–32.

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