Interview with Mohammad Fadel

Mohammad Fadel is an Associate Professor & Toronto Research Chair for the Law and Economics of Islamic Law at the University of Toronto Faculty of Law. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago. He was admitted to the Bar of New York in 2000 and practiced law with the firm of Sullivan & Cromwell LLP in New York where he worked on a wide variety of corporate finance transactions and securities-related regulatory investigations. Fadel also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court of Appeals for the 4th Circuit and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. He has published numerous articles in Islamic legal history and Islam and liberalism.

Halil İbrahim Yenigün: Thank you Dr. Fadel for being with us today for this interview.

Mohammad Fadel: You are welcome!

Halil İbrahim Yenigün: In POMEAS we are generally tackling the Arab Spring and the question of democratization thereafter. I would like to first start up with a general question. What is left of the Arab Spring now, if we may call it that way, in any case? Or is it the Arab Winter? Or a counter-revolution?Or a new phase of Arab authoritarianism? What do you think?

Mohammad Fadel: Well, I think that we are in the throws of a violent counter-revolution. I do not think it can succeed because to the extent that the counter-revolution is trying to restore the status quo ante, it is attempting to restore the very same status quo ante that was precisely what produced the revolutions of 2011. Although, I believe that current array of order wishes to return things to the way they were before 2011, I think ultimately they will fail. In fact, the degree of violence that is being deployed by these various Arab states in an attempt to restore the status quo ante is itself the most tangible evidence of the impossibility of returning to the status quo ante. So, the question is, will it just further collapse, as we have seen in Syria, or will at some point in time some cooler heads prevail and realize that this is a self-destructive game. Everyone agrees that substantial reforms are going to have to be made, including real power sharing.

Halil İbrahim Yenigün: Where would you place the Tunisian experience in this framework? Do you think it is a success story? Is there a Tunisian exceptionalism?

Mohammad Fadel: What I would say is that it is a success insofar that it has not broken down, right? But, I think it’s too early to conclude that it is a success. Unfortunately, what we are seeing now is an attempt by the status quo regimes in the Arab world to interfere everywhere, to try to squelch any kind of real democratization. So, I worry that they will try to use their influence, particularly their financial influence, to convince the current government in Tunisia to reverse the democratic gains that have been made so far. I think it is a very tenuous democracy. It could easily break down. The lure of easy money from the Gulf countries could be enough to bring an end to it. So, I would not say that Tunisia is out of the woods by any stretch of the imagination. I think what is crucial is for there to be another election in which there is another transfer of power peacefully; that will be very crucial. But also, the current government has some kind of success in improving the economic conditions of the society, so that the people do not resort to revolutionary means of political change. I think right now, if there is a revolutionary politics it is going to result in anti-democratic government, not in democratic government.

Halil İbrahim Yenigün: So, do you think there was a Ghannushi factor in Tunisia which was decisive or did they learn from the Egyptian experience?

Mohammad Fadel: I think there are substantial institutional differences in Egypt and Tunisia. The most important being is that there was not a powerful military. So the different political forces had no choice but to come to an agreement with each other. In Egypt, the most important player was the military. So, the political parties, instead of bargaining with each other, they also had to bargain with the military. And whenever they got a deal that they did not like, they could go back to the military and try to negotiate [with the military]. And so, at the end of the day, the military was empowered by all the different political parties. I really think it is the absence of a strong dominant military in Tunisia that made a very comfortable transition possible. Like I said, it is not solidified into anything secure. So, we will see to what extent Tunisians are able to continue with this experiment. It is not a slam-dunk by any stretch of the imagination, so I do not think there is anything special about Ghannushi, whether he is somehow, the only reasonable politician in the Middle East. I think that they could withdraw from the government knowing that there was not a risk of a military crackdown on them because there was no military to crackdown on them. So, they had a viable place to retreat to where, as it was clear to me that the Egyptian Muslim Brotherhood had no viable place to retreat to.

Halil İbrahim Yenigün: So, you do not ascribe any role, or a significant role to Ghannushi’s intellectual reform?

Mohammad Fadel: I downplay these sorts of things in light of the structural constraints facing players. I think there is just more room to maneuver in Tunisia, aside from the fact that the Tunisians had a lot of advantages –smaller country, more homogenous population, better educated, wealthier, a functioning state bureaucracy. None of these things are present in Egypt.

Halil İbrahim Yenigün: During the downfall of the Morsi rule in Egypt with the coup, there were debates about the legitimacy of the Tamarod movement or deposing a legitimately elected government from power because of the abuse of power. During those days there was a large debate and you were also part of a discussion about the legal status of what happened there. What would you like to say on that looking back from now?

Mohammad Fadel: Well, back then and now I think it was a catastrophic mistake for the democratization of Egypt. I still believe that. I am totally agnostic as to the performance of Morsi, I have no objective basis to determine whether he was good, bad, evil, saint. But what I do know is that there were democratic means to oppose him and that Egyptians who are opposed to him instead of availing themselves of the democratic means, used extra-legal means that required the intervention of the military. And it was my position in the summer of 2013 that this would only result in the empowerment of authoritarianism, and there was no way it could lead to greater democracy. Unfortunately, I have been proven right and unfortunately lots of Egyptians who claim to be committed to democracy are still reluctant to condemn June 30th. I think the commitment to democracy in Egypt means that you have to condemn June 30th, and you can say that a lot of people participated naively, something which I am willing to say. I think a lot of people naively believed that this would be good. They did not intend directly to bring about a military coup, but from the perspective of political theory the most likely outcome was precisely what happened. I think that they need to understand that they made a catastrophic error of judgment and until that is achieved, it is hard to imagine how a new democratic coalition could be reassembled. This is the tragedy. Not only did you contribute to the rise of a renewed vicious authoritarianism much worse than existed prior to 2011, the possibility of a democratic coalition has been destroyed and the only way to renew that possibility is to condemn June 30th. That is, there must be a categorical condemnation of Tamarod. That it was from the beginning either a catastrophic mistake in judgment or that it was part and parcel of the counter-revolution from the beginning. I mean there is a clear evidence that elements of the security apparatus were involved in it from the beginning. I don’t want to go out and say that it was a conspiracy, right? But it’s clear that there was some involvement of elements of the state. But more importantly, lots of Egyptians who were probably otherwise sincere one way or another were just naïvely manipulated by the elements of the old regime. And if they have any sincere desire to return to some kind of democratic transition I think they have to understand the gravity of their misjudgment.

Halil İbrahim Yenigün: Then reiterating Galal Amin’s book, Whatever Happened to the Egyptians?, whatever happened to the Egyptian liberals? Because, they surprised everybody.

Mohammad Fadel: Well, you know I was surprised because it seems that there were not really many liberals in Egypt. AmrHamzawi, I think has done fairly good job of saying: “I made a mistake and a lot of the things that we did in the National Salvation Front in hindsight were a mistake”. Unfortunately, he has become internally sort of a persona non grata. Mohamed ElBaradei, too. I think he understands that a lot of what he did was a mistake, but he has just fled the country and he is not speaking up. He is self-silenced. I think there has to be a lot of introspection on the part of those people who helped legitimate -particularly in the eyes of the international community - a coup, because they portrayed a picture of dictatorship, abuse of power etc. etc. in a such a way that it made it sound like a coup was necessary, when clearly, it was not. I think they have a lot to answer for. Basically they have a lot to answer for. And I am happy that AmrHamzawi has sort of admitted his mistakes. I think that is a good positive side. I wish more Egyptian intellectuals would do that. Unfortunately, it’s not happening.

Halil İbrahim Yenigün: How do you see the prospects of Egyptian democratization at this point?

Mohammad Fadel: It is very grim. Unfortunately, it is very poor. You know the media, the hysteria, the ultra-nationalism; you know it isall tragic. It is all, the “emperor has no clothes” kind of scenario. The more bombastic is the rhetoric, the more shallow the accomplishments. Right now the only thing that is propping Egypt up is the external aid from the Gulf and who knows how long that can last but it cannot last forever. The problems of the country get deeper every day, leaving aside their political divisions, so it is hard to understand how it could possibly be resolved. Now with the coup, a bloody coup, if there were to be some sort of democratization, you are going to have to purge the armed forces, you have to purge the judiciary, you are going to have to purge the bureaucracy, and so this just means that the cost of transitioning [to democracy] would be much higher and much violent because now it really is an existential battle, whereas prior to June 30th it was not, but now it is. So, that makes the prospects of a peaceful democratic change, in the near term almost impossible. You have to wait a generation for all these figures to die, essentially before you can start talking about a peaceful transition.

Halil İbrahim Yenigün: When you look at the situation from today backward and people took to the streets, they rebelled, they were protesting and wanted the government to fall and they have succeeded. We all expected good things coming out of that, but looking back from now, and seeing that the situation is very grim, one might think that perhaps it should have been in a different way; or perhaps they should not have taken to the streets at all? Especially considering the Syrian case? What do you think?

Mohammad Fadel: I think the Egyptians had no choice but to do the January revolution because the state was collapsing. This is a state that there was a fire in the Parliament building and they could not put it out. So the government was failing by every possible measure. So it is impossible to say that it was a mistake, it was inevitable. It was not a matter of choice, it was forced onto Egyptian people. So, it is not a sign of success, it is a sign of a failure. Obviously, what you would want is to have a state that is rational enough to lead its own reforms, but unfortunately the state was incapable, unwilling or unable or too blind to make the reforms necessary for the state to function properly. So there is no choice but to have happened what happened. The problem was that you know the flip side of that is because this revolution was born of crisis and of multiple failures, then fear became the primary motive during the transition instead of hope. Particularly, what was going on in Syria and Iraq, the Egyptian military and those allied with it were able to exploit and terrify the public that if we continue down the road with pluralistic politics, we can end up like Syria or Iraq. I think we should not underestimate the degree to which the nationalist forces in Egypt exploited the fear of national disintegration. Based on what is going on in Syria and Iraq, they were able to justify a termination of the democratic experiment. So, this is again, if we go back to political theorists, we understand that in political psychology often times particularly in political cultures dominated by despotism, the people often long for a strong leader, the protector, the omnipotent leader who saves everybody. I think that is what Egyptians wanted, they were facing all these crises and they didn’t know how to solve them and it seemed that here is this person that could save them. It isall mythical of course, but it is not completely unsurprising again that we see the people rallying and trying to change a leader in times of deep crisis. The flip side of it is that yes, the revolution was caused by tangible, objective circumstances. So, it was a necessity but that could have produced democratic change, but it could also produce fascism. So, the same kind of circumstances could produce a result that goes either way. And unfortunately right now Egypt is going toward fascism and so it looks bad. I mean you cannot go back and say it was a mistake, because the status quo could not continue.

Halil İbrahim Yenigün: If we look at the theological or the legal dimension at this point, i.e., the Islamic legal dimension, do you think there was or there is a political theology of the Arab Spring? If yes, what is it like? Do you think there was a theological component in people’s demands or what was going on? Or, on the other hand, you described a situation where a charismatic figure was coming in. So, if you want to bring in the theological or the legal dimension, what are the chances for the people who are in that kind of circumstances, talking from within the Islamic tradition?

Mohammad Fadel: Within the Islamic tradition, you have a paradox. I think this paradox is also present in all founding moments of democratic theory. If you think of the normative Sunni paradigm as there being some kind of moment in which a political order is created through consent, then what happens later on when they decide to withdraw their consent? Can people ever permanently alienate their right, for example, to depose the ruler? Islamic jurists wrestled with this to give a paradoxical answer that it is illegal to rebel unless you succeed. Then if you succeed then you become the ruler. So, I said it is like revolutionary action against a legitimately selected leader. I analogize this in the Islamic Family Law to what is called a Triple Divorce. It is Haram, but it is effective. So you cannot take it back. I mean, you just cannot take it back. It is like the idea that you are going to bring Morsi back is preposterous because he was removed effectively and it could not work to bring him back. Just like a Triple Divorce, once they get a divorce, they can never get back together, unless there is a new marriage in the interim. So, you have to recognize that. One thing that is clear from Islamic tradition on politics is that yes, the consent is basis of legitimacy but then even if a legitimate leader is overthrown through force, and loses all effective power, then you have to sort of start all over again. So, I think this is the tension, whenever you are in transition, there is a gap between the formal consent and effective power. It takes time for a new regime and a new order to be able to solve the gap between the nominal consent and then asserting effective control over institutions. This is where the problem of crisis comes in. In case like Egypt, Morsi wins by 51 percent, small margin but he does not have effective control over the institutions of the state. And to make things worse, those institutions of the state are deeply resentful of the 2011 revolution, and they are doubly resentful of a Muslim Brotherhood president. So they can effectively undermine the whole process and this of course turns the people against him. To a certain extent there is some kind of rationality behind that. If you are the people and you want things to change, what is the point of electing somebody who does not have any ability to do anything? So, there has got to be a linkage between formal legitimacy and effective power. That has just never happened in Egypt. There were a series of five free and fair elections, but what were the results? Nothing! Because every time either the military could change the results of the elections or the Court would strike down the Parliament, or the military or the president. In each case there is no link between the voting process and effective power. So there has to be both. There has to be some sort of linkage between the formal procedure and effective power which never happened. So, that is really the challenge, how do you create that link? Part of it of course is that the ideology of the state has to change, so that the state, the bureaucracy, the military, the police, and the like do not view themselves independent of the state, independent of the democratic process but rather subject to its supervision, which they do not see now. They view themselves as floating above the Egyptian people and then part of it is that Egyptian people have to stop viewing the state as something that they approach as supplicants and view the state as theirs that they have the right to direct it and organize it and use it to further their own interest.

Halil İbrahim Yenigün: How would you apply these ideas to the case of Syria because over there we saw again a rebellion, a Sunni rebellion, which had an opposite kind of political theology, i.e. anti-rebellion? They took up arms and then it has come to nowhere at this point. It might get much worse than the starting point.

Mohammad Fadel: Again, you know I personally was skeptical of Syrian revolution. I do not want to say I was opposed to it but skeptical of it from the very beginning because I saw no way that it could succeed without massive armed conflict. But then again, who am I to tell the Syrians that they have to live under a tyrant. How long can you live under a tyrant? It is not fair to tell the people that they have to live under a tyrant because the balance of powers is not going to be favorable and it is going to lead to massive death and bloodshed. Especially when that tyrant is intentionally seeking to provoke a blood bath. So, unfortunately, all I can see today for Syria is that it has to end with a complete defeat of Assad. I view it as the Nazis. There is only one option of unconditional surrender really, because he has caused so much destruction and death and bloodshed. I do not see how the state of Syria can survive if he is still there. He just has to be completely defeated. Then, you pick who can stay, one way or another.

Halil İbrahim Yenigün: So, you do not think that there could be any kind of ceasefire followed by some kind of bargaining between these six seven big powers, world powers, and then a transition?

Mohammad Fadel: I don’t see how? I mean, if I were a Syrian, and if I were in opposition to Assad I would not accept that. And if I were on Assad’s side, then how could I trust it? Because, they would want to get revenge. What kind of stable outcome would that bring? It would just be a ceasefire.

Halil İbrahim Yenigün: Do you think it is going to be like the Lebanese Civil War, which can go on and on?

Mohammad Fadel: Well, it could but the only end would be complete victory of one side or the other. And I do not see how Assad can completely win. You know again I am hoping that a big wild card here is the US-Iranian Nuclear deal. I am hoping that if that does happen, Iran would be a lot more reasonable and be willing to cast aside Assad.

Halil İbrahim Yenigün: So, looking again at the theological dimension, in terms of democratization, after the Atlantic Monthly piece there was a long debate on the Islamicity of ISIS. So, I know you also participated in that debate. So, what is your position towards the theological correctness of ISIS?

Mohammad Fadel: My position of course is that ISIS is abomination but there are perversions of religious doctrine. In Islamic theological history, there were lots of perversions, lots of perversity from the perspective of mainstream Muslims, but we do not write in books of Heresiography that they are not part of, in some sort of sense, the Islamic community. I think the debate is not whether they represent authentic Islamic teachings or not. I clearly do not think so. The problem for me is that why is ISIS here? Why ISIS is able to attract thousands of Muslims to support it? I think that is the issue that we have to face and I think that is directly the result of the failures, the catastrophic failures of the Arab State system. They bear primary responsibility for ISIS. The only solution to ISIS is to solve the problems and crisis of the Arab states which produced the Arab Spring. The choice of people in the Arab world cannot be between ISIS or authoritarianism. I mean it cannot be that only those two choices exist for the Arabs. It cannot be Sisi or ISIS. There has to be something else. And if they do not recognize that it does not matter if you defeat ISIS today, there will be something else tomorrow. So, the Arabs have to decide that they are going to live with each other peacefully and construct states that are inclusive and respectful of their citizens, and promote basic equality. That is what really has to be talked about. It is not ISIS. ISIS is just a symptom of the deep disease that afflicted the Arab state system. It is silly just to talk about the religious extremism.The problem is authoritarian extremism. Get rid of authoritarianism, and you will get rid of ISIS. I admit the transition costs are high because you have got a generation or two generations that have been reared on authoritarian cultures and so the transition will be very difficult but it has to start.

Halil İbrahim Yenigün: Your analytical approach is to ascribe to the political dimension primacy as opposed to the theological dimension. But people might think that this whole post-Nahda, or post-18th century Arab Ihya movements, they might have contributed to this whole catastrophe in the region by offering a new theology which is literalist and which is much more prone to violence because of its literalism and fundamentalism. What would you want to say to that? Do you not think that theology is also responsible here?

Mohammad Fadel: Well, yeah sure. Not the Nahda. The Nahda is completely innocent of this. It is absolutely the Wahhabi theology which is partially to blame here, too. But why is it able to find adherence? Why is it that the mainstream sort of Sunni tradition is not able to maintain its hegemonic grip on society? It is because the kinds of institutions that would allow it to flourish and make it attractive have been completely demolished. Somebody today mentioned to me, and we were talking about the neo-traditionalism among the Muslims in the West that the problem Western neo-traditionalists face today is that two of their main pillars, al-Bouti and Ali Gomaa, have ended their careers by siding with mass murderers. So, high Sunnism has been irrevocably compromised by its relationship with these authoritarian states. So in that circumstance it makes people vulnerable to bad theology. But I would say that the Nahda theology of Rashid Rida, Muhammad Abduh, the Islahis, their Salafism is very different. Their Salafism is not based on fetishization of the early community and the rejection of everything else. No, what they said was that we can imitate the Salaf in their sort of independence, their courage, their spirit of sacrifice, their willingness to experiment. Not that we have to follow their literal ways of living the way like Wahhabis and ISIS do. And plus they didn’t go around accusing everybody of being apostates, right. You cannot confuse the two. It is true that Rashid Rida and Muhammad Abduh called themselves Salafis but it was in a completely different sense than the way the Wahhabi movement uses the term.

Halil İbrahim Yenigün: Then what would you make of Ali Gomaa’s characterization of the Muslim Brotherhood as a new Khawarij [Kharijites]?

Mohammad Fadel: It is preposterous! The position of Khawarij was that if you donot join us, you are not Muslim and you can be killed. The Muslim Brotherhood does not say things like that.

Halil İbrahim Yenigün: Where is then the Egyptian Islamism going given this whole situation?

Mohammad Fadel: I do not know. I mean I am not on the ground in Egypt, I cannot really say.

Halil İbrahim Yenigün: Where do you think it could go?

Mohammad Fadel: I do not know. I think its roots are very deep. So I do not expect them to disappear. My fear is that the kind of democratic gains that was made in Islamist thinking and in place like Egypt in last 25 years might be completely abandoned.

Halil İbrahim Yenigün: Because the 1954 suppression led to organizations like Gihad, Al-Takfirwa al-Hijra, so do you think this might be also the case?

Mohammad Fadel: I think this is exactly what is happening. Now you have the Ansar Bayt Maqdis in Sinai killing hundreds of soldiers and policemen, you have bombs going off in Cairo and other places of Egypt. It’s a much more serious insurgency than it was in the 1990s which indicates that there is a lot deeper support for it. I am afraid that the jihadi strain of Islamism is going to, at least in the short-term, gain more adherence than would have otherwise been the case.

Halil İbrahim Yenigün: What is the path for people who want to go on with the intellectual reform or to democratization path through intellectual reform?

Mohammad Fadel: I think there has to be a renewed moral commitment to democracy. Islamists need to have a better theory of democracy; that is part of the problem. I think that this is not limited to them. I think it is not surprising that outsiders can say,“Look at the democratic deficit of the Muslim Brotherhood.”But, you can find democratic deficit in all Egyptian political forces. But, I would say that they need to do more to internalize democratic values. Precisely, because they should not allow themselves to be captured by jihadis, not simply for the purpose of restoring democracy in Egypt in the short term, but simply to prevent political Islam from morphing into something horrible. If the values of democratization are superficial then there is a real risk that it cannot act as a real strong immunization against Jihadi Salafism. So that is what I am worried about.

Halil İbrahim Yenigün: What about the prospects of political reform and democratization for the political actors in the Middle East in general, and in the larger Muslim world? How would you like to conclude our interview?

Mohammad Fadel: We have to think about the problem of transition. The cost of transition will be very high. Why are they high? They are high because of the particular features of Arab political economy in what you have most wealth and power concentrated in the ruler elites. So, on the one hand, you have to somehow figure out an exit that is going to be safe for them and so they would not feel that their heads are on a chopping block. Then at the same time, you have got to be able to have a program that is credible for most marginalized groups in the society. Again one thing that I think the Muslim Brotherhood could have done that might have made a difference is to have adopted a lot more leftist economic programs even if they could not have delivered on anything, because they did not have the means and power. If they just adopted sort of an aggressive re-distributionist language, that might have kept the urban poor on their side. But the combination of seeking electoral legitimacy combined with a market economy alienated both the people, the status quo, and the marginalized because the status quo said,“Well, we are going to lose.” Then the marginalized said, “We are going to lose with their economics.” So, you have got to have a combination of figuring out how to convince the people who are in control now that they can leave without losing their heads and also that there is going to be some immediate pay off to the broad public. The broad public is impatient; they need to feel tangible gains. Otherwise, the risk is not worth it.