Adjudicating Family Law in Muslim Courts

Elisa Giunchi

• Publisher: Taylor & Francis
• Year: 2013
• eBook ISBN: 9781317964872
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

While there are many books on Islamic family law, the literature on its enforcement is scarce. This book focuses on how Islamic family law is interpreted and applied by judges in a range of Muslim countries – Sunni and Shi'a, as well as Arab and non-Arab. It thereby aids the understanding of shari'a law in practice in a number of different cultural and political settings. It shows how the existence of differing views of what shari'a is, as well as the presence of a vast body of legal material which judges can refer to, make it possible for courts to interpret Islamic law in creative and innovative ways.

1 From Jurists’ Ijtihad to Judicial Neo-Ijtihad

Some introductory observations

Elisa Giunchi

The origins of Islamic legal doctrine

Shari‘a is often evoked – by the general public and academics, as well as within judicial proceedings, by litigants and judges alike – to indicate different things. Usually translated as Islamic law, it is often meant as much more than that, i.e. as a ‘total discourse’ reflecting religion, morality, economics and justice in Islam, or as a set of ethics, governing the every day behaviour of Muslims. When it is considered in its legal aspect only, it is sometimes taken to mean the entire normative edifice of Islam as built in the seventh–eleventh centuries, comprising the prescriptions contained in the sacred sources (the Qur’an and the Sunna, as an embodiment of God’s will) and in human, and therefore contestable, legal constructions (fiqh, or jurisprudence), thus conflating absolute truth and fallible human reasoning, abstraction and concrete understanding. At other times, shari‘a is identified only with the legal component of the Qur’an and Sunna, or even with that of the Qur’an alone. Whether in its limited or expanded legal sense, shari‘a is often described as a code. And yet, the legal prescriptions in the Qur’an – only a fraction of the whole text – are often broad or ambiguous enough to tolerate different readings. The hadiths (words and deeds of the Prophet) that compose the Sunna are highly contextualized, and there is no total agreement, even among Muslim scholars, on their authenticity. As to the jurisprudence that developed in the centuries after Muhammad’s death, it includes divergent opinions, all of them, as we will see, equally legitimate. Thus, despite oft-claimed to the contrary, by no stretch of imagination can shari‘a, or fiqh, be considered as a code, in the sense of a systematic set of ready-made judiciable prescriptions.

Etymologically, shari‘a is the ‘path’ indicated by God through the revelation and the Sunna. In order to unfold the path, so as to understand it and apply it in concrete situations, in the centuries after Muhammad’s death an exegesis of the Qur’an developed and the hadiths were collected and screened; those considered as authoritative were validated and incorporated in canonical compilations in the mid-late-ninth century and came to be considered a ‘divine scripture’ alongside the Qur’an, though of lesser status. The compilations considered most authoritative by the Shi‘a appeared slightly later, from the first half of the tenth century to the first half of the following century. To address new circumstances as the Islamic empire expanded to new geographical areas and ruled increasingly complex societies, these sources were complemented by others; thus Islamic law incorporated mechanisms that ensured its adaptability to new circumstances, the main one being ijtihad (individual interpretation of the primary sources), which was practiced by scholars (mujtahids) who possessed specific qualifications mainly linked to their scholarly competence.¹

According to the doctrine of usul al-fiqh (the roots of jurisprudence) that emerged in the Sunni world around the ninth–tenth centuries,² and is usually, albeit not fully correctly associated with the work of Muhammad b. Idris al-Shafi‘i (d. 820),³ the secondary sources of law are the consensus (ijma‘) of qualified jurists on a specific legal issue or interpretation, and analogy (qiyas) – actually a method to arrive at a norm rather than a source – which was the derivation of rules by analogical extension of rules already established. While several ijtihads could converge in consensus, analogy was a restricted form of ijtihad, and expressed a compromise between supporters of ra‘y (individual reasoning) and those who wished to restrict it.

Consensus was often established by the absence of dissenting opinions on a particular legal issue; several factors limited its potential as a method to formulate new legal rules, in primis the fact that it needed to have some basis in the Qur’an or Sunna, and that disagreement, once visible and known, could not, according to the majority of classical scholars, be replaced by a later consensus. In some cases ijma‘ was actually at variance with the Qur’an. The caliph Umar for example introduced stoning for adultery, which became for all fiqh the standard penalty, though, while found in several hadiths attributed to the Prophet, it contradicts the Quranic text, which prescribes flogging (24: 2) as the penalty for sexual crimes, and house confinement for unspecified forms of ‘indecency’ (4: 15–16). Ijma‘ also validated the ‘triple talaq’, a form of repudiation that immediately dissolves marriage, though this practice is not recognized by the Qur’an. Whether some issues were or were not subject to ijma‘ was actually contentious: for example, while the Hanafi school considered the triple talaq as validated by ijma‘, Hanbali jurists pointed to the contradictory practice reported in the Sunna and to the differing opinions of early scholars and thus rejected any claim of ijma‘. This takes us to an important point: in matters of substantive law, ijma‘ was considered as a valid source if it was carried out within recognized schools, an issue to which we will return.

Other sources of law and methods of deriving norms from existing sources played a role in the development of fiqh to address issues that were not mentioned in scriptural sources, to adapt existing norms to changed circumstances and to accommodate human needs: customs that did not expressly contradict the Qur’an, Sunna and ijma‘ were incorporated in fiqh; juristic preference (istihsan) motivated by the common good (maslaha) was referred to by Hanafis and Hanbalis, often to overcome a stricture of qiyas; among the Malikis a similar principle was that of istislah (to seek the social good); considerations of maslaha and necessity (darura), which developed particularly in the context of the discussion on the aims of the law (maqasid al-shari‘a) in the fourteenth century, also influenced fiqh and would be emphasized, as we will see, by reformists in the nineteenth century and onwards.

These methods and sources, or rather, as Abou El Fadl calls them, ‘aids to textual interpretation’ (Abou El Fadl 2001: 35), contributed to a highly sophisticated and diversified jurisprudence that left wide margins of discretion to the mufti (the scholar qualified to issue fatwas, i.e. religious decrees) and to the qadi (judge). Doctrinal variations, often emerging from distinct cultural and socio-economic circumstances, were streamlined, starting in the eight century, in different bodies of doctrines, resulting in the mid-ninth to early tenth centuries in structured regional schools (madhhabs). These schools, named after a leading scholar of that time who putatively founded them, gradually became limited in number, with the Hanafiyya becoming the largest in terms of the total of its adherents. The other Sunni madhhabs that survived beyond the eleventh century are the Shafi‘iyya, Hanbaliyya and Malikiyya. These schools differed from one another on hermeneutical points and on the relative weight given to various sources, particularly qiyas and Sunna, and thus arrived at different rules on virtually every subject, thereby giving rise to a vast body of literature on ikhtilaf (difference) that illustrated the variations between madhhabs and within each one. Although the Sunni madhhabs formed their main identity and structure around the tenth century, subsequent scholars built upon the school’s juristic tradition, forming a cumulative body of law that remained very diverse. Differences persisted also within each school, and were pronounced especially within the Hanafiyya.

Far from being the product of irrational thinking, as is often presumed by Western audiences, ikhtilaf was grounded in reasoning: prescriptions revealed in the Qur’an and exemplified by the Sunna were the basis for a framework for thinking, under which differing solutions to human problems could be found and new circumstances could be addressed. Fiqh indicated how to arrive at an authoritative definition of practice that accommodated time and space rather than a once and for all definition. Past opinions were not to be replicated but were intended to be heuristic examples of a mode of thinking, an epistemological and methodological framework, and an ethical discourse (Wheeler 1996: 239; Vikør 2005: 30). Some opinions were considered stronger than others, in the sense of better argued and based on more solid scriptural grounds, and therefore were agreed upon by a greater number of scholars, but even weaker opinions, as long as discussed within a given framework, were valid, as only God knew the right interpretation. Jurists would be compensated in the hereafter for the ijtihadi efforts, and qadis for their concrete choice of opinion from those available to them, as long as they made an attempt (jihad) to unfold the shari‘a to the best of their abilities and without violating express prescriptions laid down in the primary sources and the general values and objectives of religion. All judges could do was to rule on the basis of appearances – the exterior (zahir) – thus remaining within the realm of probability: what they provided was a ‘probable, but fallible interpretation of infallible texts’ (Johansen 1999: 37). This interpretation was based on the knowledge of the litigants and facts, which changed from case to case. A verdict, as a consequence, did not have validity beyond the specific circumstance in which it was expressed. The common law’s doctrine of precedent was thus totally foreign to Islamic law, and the appeals system was accepted up to a point: two judgments based on ijtihad did not invalidate each other, and ijtihad could be reversed only if it departed, according to most jurists, from a clear text of Qur’an, Sunna or explicit ijma‘ or, according to others, if it contradicted ijma‘ (Kamali 1993: 72–73). Qadis could differ not only among themselves, but also with their prior judgments, and did not have to abide by fatwas unless they felt they were unable to perform ijtihad.⁴

Alongside qadis’ courts, informal channels of adjudication, as well as siyasa courts, linked to the rulers’ interests, functioned. The division between profane and religious was permeable: decrees by political authorities were framed in a religious discourse and developed alternative rules and punishments rather than invalidating those mandated by Islamic law, while religious matters were adjudicated also with reference to external factors such as ‘urf (Gerber 1999: 61–63). Issues that were the object of fiqh and part of the realm of qadis, particularly those issues involving criminal law, were adjudicated by non-shari‘a courts in several regions. Even when decided by qadis, punishments and evidence requirements were often not in accordance with Islamic law.

Flexibility at the adjudication level was compounded by what Hallaq calls ‘a socially embedded system inspired by judicial relativism’ (Hallaq 2009a: 165). The judge, who was part and parcel of the community where he served, knew and took into consideration the context in which the parties lived and used this knowledge to mediate and search for compromise. His overarching aim was to ensure social harmony, which meant preserving the status quo while checking abuses and protecting the weakest elements of society from excessive hardship. Judith Tucker, who examined Ottoman Syria and Palestine, found, for example, that muftis and qadis used a selection of sources and interpretations to enable a flexible interpretation of the law that would best serve the stability of community and the interests of justice (Tucker 1999: 181–82). Kristen Stilt in her study of the muhtasib (inspector of public spaces) in Mamluk Egypt similarly observed that the rules of fiqh were not predictive of decisions and many contextual factors influenced jurists as well as public officers (Stilt 2011). The attempt to avoid excessive hardship meant that the worst abuses against women were corrected by bringing gender relations within their shari‘a limits or even, in some cases, expanding the limits outside the bounds of fiqh. Also fatwas, which were consulted by jurists when compiling treatises and by judges applying the law, reflected gender imbalances while checking abuses. While Hallaq may go too far when stating that women were afforded ‘plenty of agency’ (Hallaq 2009a: 196), there is no doubt that the judge often offered them a sympathetic ear. Many studies on the Ottoman Empire show that women easily approached the courts, often saw their grievances redressed, were assertive in presenting their case, and developed strategies to maximize the rights they enjoyed (Peirce 2003; Meriwether 1996; Zilfi 1997).

The flexibility described above might induce the reader to imagine Islamic legal doctrine as haphazard and court practice as totally arbitrary, as an Orientalist interpretation of Islam has suggested.⁵ Judges, however, shared certain principles and sources, did not question unequivocal divine texts and substantive rules on which a solid ijma‘ existed and acted within a given ethical, methodological and epistemological framework. Those who did not conform to this framework were excluded from orthodoxy and prevented from participating in the development of Islamic law, thus condemned to marginality or extinction. It was to escape this fate, according to some scholars, that the mainstream Shi‘a adopted an usul al-fiqh that conformed to the Sunni legal doctrine (Stewart 1998).

The Shi‘i body of law and methodologies, which became a distinct legal theory in the tenth century, continued to develop its doctrine on secondary sources in the following centuries and perfected its methodology after the establishment of the Safavid state in the early sixteenth century. Despite its similarities to Sunni doctrine, Shi‘i legal thought has some peculiarities. As the Twelvers (or Ithna’Ashari), who follow the Ja‘fari fiqh and form the main Shi‘a group, did not refer to a living imam after the ninth century, the hadiths of past imams became central to them. They thus developed their own compilations of Sunna based on narrations of the imams, which had authority alongside the hadiths referring to the Prophet’s example as recounted by the imams themselves. Ijma‘, usually not referred by that name, was accepted with some reservation and increasingly obscured by the role of the living mujtahid. Qiyas was rejected and replaced with the evidence of reason, dalil al-‘aql. The imams inherited some functions of Muhammad and, in turn, according to a later doctrinal development, the twelfth imam after his occultation transmitted those functions to the higher religious scholars, enabling the knowledge of God’s will to continue after the end of revelation. Ijtihad, generally accepted in the thirteenth and early-fourteenth centuries, was assigned to mujtahids who were required to hold qualifications similar to those of their Sunni counterparts, with laymen allowed to choose which one they would follow. In theory, ijtihad aimed to find what the twelfth imam would have decided had he been present, which implied a good dose of caution was needed. As a consequence, freedom to practice ijtihad was de facto limited, and most later mujtahids confirmed what previous jurists had said (Gleave 2005: 133–34; Clarke 2001: 63). The concept of a marjia‘ al-taqlid – the ultimate source of emulation, which although rooted in earlier times was fully explicated in the nineteenth century – would further limit innovation and excessive doctrinal heterogeneity.⁶

The door of ijtihad becomes ajar

In the mid-twentieth century it became quite common among Western scholars to write that around the ninth–tenth century the dynamism of the formative period had ended within the Sunni fold. According to this thinking, usually attributed to Schacht (1964), but shared by many others, in ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Notes on Contributors
• List of Abbreviations
• Preface
• 1 From Jurists’ Ijtihad to Judicial Neo-Ijtihad: Some introductory observations
• 2 Shari‘a Courts and Muslim Family Law in Lebanon
• 3 The Application of Muslim Personal Law in India: A system of legal pluralism in action
• 4 Family Law in Pakistan: Using the secular to influence the religious
• 5 The Enforcement of Personal Status Law by Egyptian Courts
• 6 Courts and the Reform of Personal Status Law in Egypt: Judicial divorce for injury and polygamy
• 7 The Potential Within: Adjudications on shiqaq (discord) divorce by Moroccan judges
• 8 Family Law in Post-Revolutionary Iran. Closing the doors of ijtehad?
• 9 Islamic Family Law in Secular Turkish Courts
• Glossary
• Index