Jurists and judges workshop report

A dominant narrative in Islamic legal studies explicates that processes of “modernization” of the Sharīʿa have deprived modern Muslim jurists of their interpretative freedom and agency. According to this view, processes of secularisation, positivization, bureaucratization and codification of Islamic law have dramatically reduced the capacity of Muslim jurists to produce genuinely innovative Islamic content and legitimacy. While this narrative may have some merit, our underlying supposition is that despite processes of codification and standardization, contemporary Muslim judges and jurists (here defined broadly) still possess significant agency in introducing innovative Islamic content. This special issue provides a new perspective by examining how contemporary judges and jurists invoke new and old Islamic legal concepts and principles as normative resources in modern legal reasoning. 

In this dynamic field of hybridity and overlap, new forms of Islamic normativities emerge, which, in turn, undergo processes of standardization, codification, and canonization.  This agency employs old and new Islamic tool kits and structures of meanings, thus producing dynamic and hybrid normativities, which in turn undergo processes of standardization, codification, and canonization. These modern dynamics of standardization/innovation have remained thus far largely understudied, arguably due to the (wrongful) assumption that modernity could not make room for them.   

Based on a conference panel in 2022 hosted by CanCode at the University of Bergen, which examines processes of canonization and codification in Islamic law,  Based on a conference-panel hosted by the CanCode project in Bergen 2022, the proposed theme issue aims to address this issue systematically by bringing together articles by established and emerging scholars in modern Islamic law who study these processes in the context of present debates among jurists and judges with various aims and objectives, and court practices in different locations. sstudy these processes in different contexts. The case studies at hand range from the Middle East and North Africa (Egypt, Israel, Morocco, Saudi Arabia) to Southeast Asia (Indonesia, Malaysia). and locations. The special issue aims to shed light on empirical and historical phenomena while, at the same time, engaging in theoretical and conceptual discussion. In addition to the common focus on the agency of judges and jurists in engaging with the Islamic concepts and preceptsIslamic tradition, the nine papers are divided into two different thematical clusters: 

• First, the role of judges and jurists in producing new interpretations, standards and operationalizations bottom-up, a process that complements the top-down production of the code by parliament and elite experts. While having no formal role in codification, the agency of these actors informs and partly affects the continuous re-adjustment and updating of state-level, formal codification.  

• Second, the active role played by judges and jurists inside and outside of courts in introducing new technologies, digital templates, new genres, and new canons into contemporary Islamic law that are considered authentic by the actors in question. 

The theme issue will be highly innovative and constitute a major contribution to the field. Based on the cumulative empirical output, we will formulate new theoretical models in the individual articles and in a dedicated co-authored introduction article (Hovden, Lindbekk and Shahar), thereby adjusting and enriching the existing narrative of modernization of change.  

Eirik Hovden, Monika Lindbekk and Ido Shahar are preparing an introduction article.

Planned aticles in the theme issue (pr. Oct 2023)

Nijmi Edres

Title: Textbooks as ‘quasi-codes’: An analysis of “al-Murshid fī al-qaḍā' al-sharʿiyy” and its role as an instrument to standardize Muslim legal practice

The paper aims at contributing at the scholarly discussion on processes of canonization and codification of Islamic legal texts by looking at the case of Israeli Sharīʻa Courts and the role of Palestinian Muslim judges in Israel in bringing forward legal change and, at the same time, to provide for legal stability. Specifically, it looks at a textbook for Muslim practitioners, “al-Murshid fī al-qaḍā' al-sharaʿiyy” (and its Hebrew version “The Sharia courts: between adjudication and identity”) authored by Muslim judge Iyad Zahalka (Qadi at the Sharīʻa Court of Appeals in West Jerusalem), as an instrument to standardize Muslim legal practice in Israel. The paper investigates its role through the analysis of legal material and interviews with Palestinian Muslim judges in Israel. Against the background of previous scholarly discussions on taqlid and the function of mukhtasarat, the paper argues for the role of al-Murshid as a “bottom up” attempt for modernization and standardization of the law, and it resonates on the role of textbooks as ‘quasi-codes’ in contexts where contemporary legislation is silent or obstructed.

Nurul Hoda

Title: There and Back Again: A Socio-Legal Study of Codification through the Lens of Cross-Border Marriage Validation Cases in Malaysian Shari’ah Court

The highly bureaucratized process of marrying in Malaysia – both monogamously and polygamously – has prompted increasing numbers of Muslim couples to elope to Southern Thailand to contract an Islamic marriage (nikah). To address this issue of rampant elopement, the Malaysian Islamic authorities devised a set of standardized legal procedures for Shari’ah courts to discern the authenticity of cross-border (eloped) marriages before they can be registered under the Malaysian Islamic Family Law. This paper examines cross-border marriage validation cases as a lens for studying the dynamic processes of canonization and codification at play in the Malaysian Shari’ah system. I argue that despite standardization practices introduced by the Shari’ah judiciary at the federal level to regulate eloped marriages, judges at the state level maintain a significant level of agency in interpreting and implementing these into their own judgments of marriage validation cases. Based on long-term ethnographic fieldwork conducted in two different Malaysian Shari’ah courts involving court observations, archival study of past marriage records, interviews with Shari’ah judges and litigants, as well as document analyses of court operational manuals, this study offers a novel perspective on how codification can be driven from the bottom-up, developing from a social phenomenon and in turn shaping its outcome in courts.

Dominik Krell

Title: The Legacy of Islamic Jurisprudence in Contemporary Arab Family Law

Modern codifications emerged in Europe as a result of Enlightenment rationalism which called for a completely new approach to law and jurisprudence. Law should be distilled into a systematized and cohesive code. From the code, legal experts should deduce rules in a logical fashion. Although the authors of these codes relied heavily on Roman law, their introduction marked the end of the Roman ius commune as a direct source of law. During the 19th century, the movement towards modern codifications evolved into a global trend. By the mid-20th century, most of the Arab world had adopted codified law. At this point, the application of Islamic law had been largely confined to family and inheritance law. However, as this article demonstrates, the adoption of codifications did not significantly change legal literature on family law. Instead, legal commentaries and articles written by law professors and judges continued to employ the methodology that had been developed by Islamic jurists (ʿulamāʾ) in the centuries before. Rather than deducing rulings from the codes, the commentators focused on aligning the codes with the corpus of Islamic jurisprudence. Based on an analysis of authoritative commentaries on the family codes of Iraq, Syria, and Jordan, I show that this continuity perpetuated pre-codification legal thinking. This, in turn, resulted in restrictive interpretations that often conflicted with the progressive intent behind numerous legislative initiatives. Furthermore, it led to the perception that Arab family laws, despite their considerable differences, constitute a single body of law. While codification strengthened the authority of emerging nation-states in Europe by distancing law from the Roman tradition, Arab legal literature keeps the connection between the family codes and Islamic jurisprudence alive, thereby undermining the Arab nation-states’ authority.

Monika Lindbekk

Title: Establishing the Husband’s intention in Pronouncing ṭalāq: The (Re)Production of Islamic Normativity by Egyptian Judges

Through successive statutory legislative codes that span a century, the Egyptian legislature has aimed to make marriage a more lasting bond than that envisioned by the predominant Hanafi doctrine, the official law school of Egypt, by attaching more importance to the intention (niyya) behind pronouncements of repudiation. This paper explores how contemporary Egyptian family judges trained in modern law schools ascertain the husband's intention in judicial disputes concerning male-initiated divorce (ṭalāq) based on the available evidence, ranging from bureaucratic documents, eyewitness testimony, fatwas, expert opinions, and circumstantial evidence. The paper argues that court practice in this area is characterized by considerable standardization as contemporary family court judges tend to formulate and authorize particular interpretations of Islamic law at the expense of others. The paper argues that contextual factors like time pressure, legal training and the introduction of computer technology are important contributing factors to understanding how judges produce changes in the existing legal canons. The paper approaches the subject by drawing upon textual genres such as court judgments, templates, fatwas, legal textbooks, and commentaries used by judges to assess the husband's intention in pronouncing ṭalāq.

Andreas Nabil

Title: The Judiciary and the Legal Islamisation Debate in 1970s and 1980s Egypt.

This paper is a micro-study of the Egyptian judge Maḥmūd ʿAbd al-Ḥamīd Ghurāb (1935-1993), and the dozens of verdicts he issued according to his understanding of sharīʿa in the late 1970s and the 1980s in cases involving the corporal ḥudūd punishments and usury (ribā). A process of legal Islamisation was set in motion in Egypt in 1976, after the Islamists had won 14% of the seats in the People’s Assembly. The process culminated in 1980, when the Sadat regime famously amended Article Two of the Constitution, thereby making “the principles of the sharīʿa the main source of legislation.” The amendment was considered a major victory by proponents of what is often referred to as the “application of the sharīʿa” (taṭbīq al-sharīʿa) and sparked hitherto unseen extra-parliamentary debates. The judiciary was split in two. One group was awaiting the completion of codification efforts in Parliament, and thereby the enactment of a complete sharīʿa-based system. The other group interpreted the amendment of Article 2 as a green light to start applying sharīʿā in the courtroom, as the constitution was considered the supreme law of the state. This chapter will flesh out these debates and shed light on why and how al-Ghurāb, whom the preeminent religious institution al-Azhar named the “first Egyptian judge to apply the rule of God’s sharīʿa,” was a leading figure among the proponents of divine law.

Ari Schriber

Title: Annul, Uphold, Remand: Judicial Review in Twentieth-Century Islamic Legal Practice

How did modern state institutions of judicial review impact the adjudication of Muslim legal matters? My article examines the impact of a colonial-era institution, the Supreme Court of Sharīʿa Appeals (SCSA 1921-1956) on court outcomes. Means of judicial review long existed in Muslim legal contexts, yet the impact of state-backed appellate hierarchies like the SCSA—a judicial body comprised of elite Muslim jurists—remains poorly understood. I shed light on the impact of the SCSA through both quantitative and qualitative methods. The first part of my paper will quantify the frequency with which appeals courts annul or uphold lower courts and the correlation of annulment with case topic and/or lower court geography (e.g., urban versus rural). The second part will focus qualitatively on the Council’s discussion of ʿamal—local judicial practice—as a lens into the elite jurists’ conception of the prevailing Muslim legal tradition of the era. Far from reverting to an “orthodox” Maliki tradition, the Council frequently overturned lower-court judgements that did not account for recent centuries of Moroccan jurisprudential literature. I conclude by assessing the Council’s power to leverage their position in a colonial state institution to solidify this conception in the era directly prior to the independent state’s codification of sharīʿa in 1957.

Ido Shahar:

Title: (Re)Contextualizing Entextualization: Towards a Dialectic Analysis of text Production in a Contemporary Shariʿa Court

Shariʿa courts produce authoritative texts that establish social reality. Among other things, they may aim to establish the personal status of litigants (as married, divorced, separated, etc.); the rights and obligations of spouses towards one another; the filiation of children to their parents; and the ownership of property. For the purpose of establishing social reality, shari’a courts produce diversified types of texts: protocols, court orders, declaratory judgements, temporary or final verdicts, and more. What are the institutional dynamics and the textual conventions that shape these diverse texts? Which elements of the social interaction taking place in court is entextualized (say, in the protocol), and which elements are silenced or eliminated from the texts? Who controls this process and how? And how does this control help in shaping both the social interaction (the context) and its entextualization in the court’s records? 

By closely examining court records production in one contemporary shariʿa court – the shariʿa court in West Jerusalem – the paper seeks to provide, for the first time, a thick description of entextualization processes in a shariʿa court, as well as an analysis of the impact these processes have on the social interaction taking place in this court. The paper thus employs a dialectical framing that assumes a constitutive and bilateral relationship between the text and the context. As I will argue, the far-reaching control of the qadi over entextualization processes – e.g., the ability to differentiate between “on-the record” and” off-the-record” verbal exchanges, and the ability to rephrase and dictate what was said by other actors – provides the qadi with the ability to manoeuvre between three distinct functions: mediation, arbitration, and judgeship. I further argue that this manoeuvrability constitutes a key feature of the court’s legal culture.              

Ayang Utriza Yakin and Baudouin Dupret:

Title: Establishing Filiation Relationships of Children Born out of Unlawful Sex: Legal Changes, Fiqh, and DNA Test in Indonesia

Regarding the establishment of filiation relationship (isbat nasab) of children born of unlawful sex (zina), the Indonesian case shows dramatic legal changes. Speaking of changes in law, Jean-Louis Halpérin (2014, viii) distinguishes between “ordinary changes” (inside the same legal system) and “revolutionary changes” (substitution of a new legal order for an older one). We would like to describe how ‘ordinary legal change’ was actually revolutionary. First, the content of Islamic legal doctrine (fiqh) on the issue of filiation of children born of zina evolved dramatically. The verdict of the Indonesian Constitutional Court in 2012 transformed the legal theory and practice of fiqh, especially on the question of the admissibility of DNA tests in establishing of paternity relationship. Consequently, children born of zina have now rights and are entitled to filiation, inheritance, maintenance, and custody. Second, Indonesian Islamic courts’ practices have proved deeply flexible on this issue of paternal filiation. Following the advancement of technology (e.g., DNA) and of its recognition within the Indonesian civil legal system, the dynamics of fiqh tends toward legal homogenizing, standardization, and positivizing.