Interview with Monika Lindbekk

Question:  How do you use concepts of canonization and codification to examine processes of legal change and stability in the field of Muslim family law?

Answer:  I use the concepts of codification when investigating how contemporary Egyptian lawmakers and judges select and authorize certain rules based on different genres of text, including formal legislation, preparatory works behind the personal status codes laws, parliamentary debates, contemporary commentaries and textbooks, and fatwas. I mainly focus on a specific genre, namely court judgments (aḥkām).  Recent decades have witnessed a rapid increase in legal-anthropological studies dealing with the implementation of shariʿa-based legislation in courts. Despite the richness of existing scholarship on the adjudication of Muslim family law, to date, there is a paucity of research focused on the religious discourses of contemporary judges and how they contribute to bringing about change. In particular, little scholarly attention has been devoted to how contemporary judges use uncodified Islamic doctrines in areas where legislation is silent. Since Egyptian law does not instruct judges on how to identify the proper fiqh rule, courts exercise considerable discretion. To learn how to sail the ocean of classical fiqh, judges use and produce informal canons or codes.

Question: What formal and informal canon or code do judges use or produce in your case study? 

An example in point is the widespread use of computer based, word-templates for the judgements. These templates are not drafted by the Ministry of Justice; rather, they are the product of an informal dialogue within the judiciary based on which, family court judges model judgments on other judicial panels. The introduction of computers, which makes it possible to reproduce the same legal formulas repeatedly through the medium of templates has dramatically reduced the open-ended nature of legal debates in classical fiqh. While there is considerable stability and continuity with fiqh at the substantive level, the sources and methodology of contemporary judges differ from classical fiqh when they fill gaps in formal legislation. Instead of referring to authoritative commentaries on classical fiqh, they refer to it via the medium of contemporary commentaries and textbooks on Muslim personal status law. These contemporary commentaries and textbooks appear to have replaced the older canonical texts as a source of reference for judges in the area of personal status. To a certain extent, classical notions were also constructed differently. An example is how judges have combined doctrines from different legal schools to create new rules permitting the use of DNA evidence in paternity cases. Such Islamic judicial activism often happens when cause lawyers pose new problems for the courts to solve. In parallel litigation in courts, cause lawyers often approach reform-oriented Islamic legal scholars (fuqahāʾ). In response, the judges sometimes modify the law to accommodate new situations. Such judicial mobilization can have important effects beyond the decisional outcome of courts by building momentum for a legal-political agenda of change and encouraging activists to lobby for more radical Islamic legal change.

About Monika Lindbekk:

Monika Lindbekk was fully employed as a researcher on the CanCode-project 2021-2022 and is now an affiliated researcher. The project focuses on the processes of canonization and codification of Islamic law. In 2016, Monika defended her PhD-dissertation 'Inscribing Islamic shari'a in Egyptian Marriage and Divorce Law’ at the faculty of Law at Oslo University. Before joining Bergen University as a researcher, she was a post-doctoral researcher at Lund University and The Max Planck Institute for Comparative and International Private Law. Before this, she worked as a senior lecturer in the History of Religions at the University of Oslo. In addition to several scholarly articles, she has co-edited a volume on Women Judges in the Muslim World together with Nadia Sonneveld (Leiden University), which was published by Brill in April 2017. She has also co-edited a double special issue on Gender and Judging in Muslim Courts for the Journal of Women of the Middle East and the Islamic World (Brill) published in 2020. She is also co-organizer of an international research collaboration on Gender and Judging under the Law and Society Association.