The ‘humanity’ of the ‘new human’

In the last two centuries the relationship between law and sovereignty in the West, as well as in the Muslim world, has been analysed by many prominent scholars.¹ While in the west the doctrine of sovereignty was fully developed, by contrast, in the Muslim world, Islamic law’s relationship with political power was much less linearly developed.² If in the West centralization and sovereignty helped to produce the nation-state, in Muslim-majority societies the plurality of Islamic schools meant there was less state legitimacy and ‘deficient sovereignty’;³ this arguably rendered the Muslim world more vulnerable to western expansionism. In fact, until the Ottoman Sultans, who modelled their ‘new Muslim Empire’ after the European sovereign nation-state, the political and legal power was separate and in continuous need of negotiation.⁴ The subsequent colonial period marked profound changes with the imposition of Law Codification and the adoption of legal positivism by newly created law faculties paralleled by the decline of Ulama system of education.⁵

Esmeir’s analysis is an important contribution to critical scholarship not only in relation to colonialism and the rule of law but also on the development of legal and political power in Muslim majorities’ societies. Through a compelling analysis on the concept of humanity by important thinkers such as Agamben, Arendt, Foucault, and Fanon,⁶ she reveals a new relationship between law and the human within the colonial project. Esmeir has convincingly explained how the imposition of the new, modern, positive law during the British occupation of Egypt (1882-1956) was a precise project of colonisation. This project presupposed the inclusion of the human in the law as an instrument of subjugation, able to eliminate the past in the name of an eternal present, and thereby to deliver humanity.

Her work shows how the new legal reforms, alongside the adoption of positive law, claimed to deliver Egyptians from their ‘inhuman’ existence under a ‘despotic’, ‘lawless’ and ‘inhumane’ pre-colonial past. In order to deliver humanity, the new law confined the past to a place unrelated to the present: this ‘absolute now’ created not only the ‘human’ but also the ‘inhumane’ backwardness of what preceded it. As Esmeir points out, “the binding of positive law 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.”⁷

The rejection of the past and the repetition of textbooks in and for the present⁸ were necessary to create a rupture with past legal tradition. Esmeir argues that the repetition of textbooks “was of what was circulating in the present…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 on the present and in the present.”⁹ Consequently, Egypt witnessed a loss of traditional authority and the rise of a new authority embedded in the obedience to a universal, positive, fixed legal order. The positivisation of law signified “the abandonment of substantive concepts of justice and their replacement with proceduralist and formal ones; the identification of law with rules posited by the state and the destruction of the older tradition according to which law (dikajon or jus) has led to a just outcome in the relation among citizens.”¹⁰ Thus, the law becomes strictly bound to the state power and the human has become chained to the universal power of law because law itself delivered humanity.

For Esmeir law incorporates the ‘human’ in three ways: firstly, by claiming authorship and source to be human; secondly, by rendering the human the theological end of the law, and finally by defining human according to the law.¹¹ Consequently, “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.”¹² With the colonial project humanity was no longer a category of birth,¹³ but a juridical category that defined the legal subject itself as human/inhuman. As ‘man is not born but made’,¹⁴ humanity has become the telos of the new modern positive law which comes out as the prerequisite for a new universal humanity. The principle advocating a government of laws and not of men was central to the operations of the colonial state in Egypt. However, by defining and delivering humanity through law, the British never succeeded in determining the transition from pre-human to human or from violence to non-violence; since the law delivers humanity, it continues to contain the inhuman.

In contrast with Arendt’s work,¹⁵ where the juridical person and the human overlap and the subject was dehumanized when its juridical status collapses, for Esmeir the juridical subject coincides with the human¹⁶ because law locates the human as a product of the law itself. Moreover, contrarily from Agamben,¹⁷ for Esmeir colonization did not suspend the law rather, through colonization, law was expanded and it contained multiple legalities. Law has become “a technology of colonial rule and modern relationship of bondage;”¹⁸ it not only delivered humanity, but it also assured total domination through functional, utilitarian violence. “The principle of utility recognizes…and promotes happiness and felicity through the law reason…because the principle of utility is the property of every object, pleasure is always objectively produced and pain avoided.”¹⁹

Esmeir saw the law inclusion not as an instrument aiming to protect, but as the vehicle of a ‘functional’, ‘repressive’ violence and domination.²⁰ She unfolds the double face of the colonial project; if, on the one hand, the British aimed to eliminate the arbitrary, non-instrumental khedival legal system,²¹ then on the other, they established an arbitrary distinction between ‘human’, utilitarian, colonial violence and ‘inhumane’ pre-colonial violence.²² Not only does legal language legitimize oppressive practices, but it also has the power to transform these oppressive practices into humane ones. ²³ As Esmeir argues, “humanity is truly universalized when in the colonies pain is properly measured, administrated, and instrumentalized… pain marks the distinction between human and inhuman... Only pain that serves an end is admitted. Useless, non-instrumental pain is rejected”.²⁴ Henceforth, juridical humanity aims to eliminate the ‘unproductive’ pain.²⁵ In this regard, Esmeir does not see any distinction between ‘arbitrary cruelty’ and ‘productive cruelty’; the impossibility of that distinction reveals all of the law’s violence as arbitrary and signals a collapse of ends into means.²⁶

Significantly, “it was the 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 through the consolidation of a regime of private property.”²⁷ In fact, within these newly established estates, peasants cultivated cotton for the world market and lived under legalities constituted and executed by the estates’ private owners who acted as an absolute monarch. With the colonial project the ‘absolute khedival rights’ were substituted with the ‘absolute private property rights’ which become the new technology of management.²⁸ The new legal reforms established a new relationship with the non-human and re-established a new subjugation to law and violence. The split between ideal and factual violence posits violence as a possible subject and instrument of critique; while, on the one hand, juridical humanity refuses to grant its subject rebellion against the law, on the other it encourages opposition to competing sovereign formations.²⁹ Thus, juridical humanity is both the subject and the tool of critique. “This is perhaps what is most unsettling about the expansion of juridical humanity- that while it perform itself, it also produces its own critique.”³⁰ The last chapter of the book shows how exceptional legalities such as military tribunals and special commissions, produced a hybrid colonial legal regime; a regime split between its ideal of humanity and its factual violence. As Esmeir convincingly argues, in the colonial period, positive legal order emerged as productive of a specific relationship 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 operation of law… 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 purified ideals (a new technique of hybridization).”³¹

Esmeir’s compelling analysis reveals a new relationship between positive law and its subject; because law is a cultural product, it forms a structure of meaning which guides the individual, it also defines its subjective identity through its various bodies. The base of this new identity is the individual, or citizen, within the jurisdiction of the law. Thus, positive law, supposedly the only possible form of ‘global’ normative legal system able to unite different people, leads the individual/citizen to focus solely upon the activities of institutions such as parliaments, courts and tribunals. Therefore, the abstract equality³² called by positive law, which rests on the enforcement of the nation-state, presupposes that every individual is equal before the law. Henceforth, the individuals/citizens enjoy the freedom that the state guarantees, but they must accept a policed and regulated state for the sake of this freedom.

The Universalist claim of positive law can now be understood as a constitutive part of the Human Rights discourse. In the West, natural law (humanism) and positive law essentially agree that there is a stability of legal process (positivist) or legal value (humanists). Thus, ‘Juridical humanity’ allow us to re-think Human Rights and international law nowadays; in fact, the association between the human and the law³³ has profound roots in the work of colonial jurists.³⁴ Human rights law protects an already-given human and it claims jurisdiction over the declaration of its status: “Human Rights law, like modern law more generally, aspires to name, define, call into being, redeem the human”.³⁵ Since the legal subject is a human and, at the same time, a human-yet-to-become, becoming the subject of human rights can ensure both a temporal humanity and its possible suspension. In fact, positive and Human Rights law aspire to constitute a ‘human’ who would otherwise remain non-human. However, the problem in conceptualizing the human as a legal status allows for a double movement: dehumanizing and humanizing. Moreover, because any government can violate one’s legal status as a human, there is always the risk to be de-humanized: consequently, the concept of human as inscribed in the law is extremely fragile.