Islam and the Rule of Justice

Image and Reality in Muslim Law and Culture

Lawrence Rosen

• Publisher: University of Chicago Press
• Year: 2018
• ISBN:
  9780226511740
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In the West, we tend to think of Islamic law as an arcane and rigid legal system, bound by formulaic texts yet suffused by unfettered discretion. While judges may indeed refer to passages in the classical texts or have recourse to their own orientations, images of binding doctrine and unbounded choice do not reflect the full reality of the Islamic law in its everyday practice. Whether in the Arabic-speaking world, the Muslim portions of South and Southeast Asia, or the countries to which many Muslims have migrated, Islamic law works is readily misunderstood if the local cultures in which it is embedded are not taken into account.With Islam and the Rule of Justice, Lawrence Rosen analyzes a number of these misperceptions. Drawing on specific cases, he explores the application of Islamic law to the treatment of women (who win most of their cases), the relations between Muslims and Jews (which frequently involve close personal and financial ties), and the structure of widespread corruption (which played a key role in prompting the Arab Spring). From these case studie the role of informal mechanisms in the resolution of local disputes. The author also provides a close reading of the trial of Zacarias Moussaoui, who was charged in an American court with helping to carry out the 9/11 attacks, using insights into how Islamic justice works to explain the defendant's actions during the trial. The book closes with an examination of how Islamic cultural concepts may come to bear on the constitutional structure and legal reforms many Muslim countries have been undertaking.

PART ONE

Following the Law

CHAPTER ONE

Going to Court

Everyday Life in a Muslim Court

For Westerners Islamic law (shari‘a) may seem a subject of arcane knowledge or potential threat. Neither properly reflects the truth. Islamic family law, for example, is deeply entwined with the cultures in which it is embedded, whether it is in the Arabic-speaking world, the Muslim portions of South and Southeast Asia, or the countries to which many Muslims have migrated. When seen up close, in the proceedings of the courts and in the assumptions about people and relationships that Islamic judges draw upon, one has the opportunity to understand much of Muslim life and society. In examining such courts in North Africa and the writings of scholars who have spent innumerable hours observing actual disputes, one can see the rich array of factors that informs a legal system that affects nearly a quarter of all humankind. For our purposes, the microcosm through which we gain entry to this world is that of the qadi’s court of a medium-sized city in Morocco.

* * *

Seated at a café one morning in the city of Sefrou, Morocco, I glanced across the street and was struck by a thought. For months I had been working on various aspects of social organization among the people of the city and several tribal groups living in the Middle Atlas Mountains just beyond the town’s southern limit. I had tried following various aspects of family life, including marriage and divorce, through life histories, genealogical renditions, and documentary sources. But as I looked at the small crowd gathered across the street I realized I had been missing an additional opportunity, for the people across from me were awaiting entrance to the biweekly sitting of one of the local courts, and it became immediately apparent that here was a domain in which people were not only seeking legal recourse to their various disputes but that it constituted a venue through which I could see a host of cultural assumptions and relationships at work.

I already knew a bit about the courts. I knew, for example, that the one across from the café addressed civil and criminal matters, whereas the court adjacent to the mayor’s office handled cases involving matters of personal status (marriage, divorce, filiation, inheritance) as well as those property cases based on documents drawn up by the notaries of that court. I knew, too, that the Code of Personal Status adopted just after independence in 1956—a code that was to be amended several times over the course of the many years I have continued working in the courts—had embraced much of the traditional Maliki school of Islamic law that had governed decisions before and during the French Protectorate (1912–56), but that there was a good deal of discretion, custom, and procedure that also went into any judicial mix. What I needed now was to gain access to the records and proceedings of that court.

Research permission is the bane of most anthropologists’ field experience, but the Ministry of Justice graciously supplied me with a letter authorizing my access to the court records and proceedings. When I presented the letter to the chief judge of the region, he personally introduced me to the judge (qadi) who specialized in personal status cases, and (in what was to develop into a decades-long friendship) encouraged me to feel free to talk with him at any time.

From the outset I realized that I would have to pursue my study on three fronts simultaneously. Because I needed help deciphering the handwritten court records, I hired a local schoolteacher, a holder of the equivalent of a bachelor’s (and later a master’s) degree in Islamic law from the ancient mosque university in Fez, the Qarawiyyin.1 Together, we set ourselves up in the clerks’ office to sample and read cases. This had the advantage that we could not only get the clerks’ help with documents that ranged in clarity from prized examples of high calligraphy to the nearly indecipherable but that we could also see how the clerks shaped the issues and counseled those who, in the majority of instances, were representing themselves.2

The second leg of my work involved attending court sessions. The qadi, a small man with a bright red fez permanently affixed to his head and a soft gravelly voice, was not always easy to understand. Nor were the participants who shouted, gesticulated, cried, or mumbled, always with one or another regional accent. A uniformed aide was also present, and as in any Moroccan office his role was that of conceptual translator to the official in charge, keeper of order among those petitioning for help, and shameless devil’s advocate for any proposition he thought the judge ought to consider. The qadi kindly placed me on a bench perpendicular to his desk where I could face everyone addressing the court and where he could lean over occasionally to explain what was happening as well as allow me to listen in to the sideboard conversations with his aide and the occasional lawyer.

The final leg of my work involved following litigants out of court. Having by then lived in the area for some time and being able to converse in colloquial North African Arabic, I was in touch with a wide range of people in the countryside as well as in the city. Thus when I encountered cases involving individuals or families I knew in other contexts I was able to go to people related to or living close by the litigants—and sometimes to the parties themselves—and find out a lot more about the disputes than could be gleaned from the record or the proceedings alone. Ultimately, it was the combination of all three facets that helped me understand the cases I came across.

One of the first cases I observed was exemplary of many others. A man I will call Hussein brought suit against his wife, referred to here as Fatma, claiming that she had left their home in violation of an earlier court order. He had even sent intermediaries to get her to return, but she refused. Fatma, however, claimed that it was her husband who threw her out and that she had returned previously only for him to beat her. She also filed a countersuit requesting that the couple move to a new place of residence, that she be paid prior support, and that some of the household furnishings be returned to her. Initially, the judge let the couple argue among themselves, as he later explained, to see what their relationship was really like. He then asked if the home had enough furnishings to be livable and if her relation with her husband had been consistently bad. She answered no to the first question and yes to the second. The qadi also noted that the couple’s marriage certificate showed they were married three years before the case began, that the husband had paid a bridewealth sum of about seventy dollars, and that the court experts had determined what, in the event of a divorce, the proper level of support should be for a rural woman like Fatma.

In court Hussein said he would not move to a new residence because his wife was always trying to cause trouble, that the furnishings she was claiming were not very valuable, and that while it was her duty to do so it was he who actually supplied the bedding for the marriage. He cannot pay the support, he said, because he is poor, and asked why in any event he should have to pay the support since it is she who is at fault for deserting him. Fatma, however, said her husband is not poor and demanded that he take an oath in support of that claim. She even produced a notarized document in which witnesses testified that she had indeed previously returned to her husband but left three days later after the beating, a claim to which she told the court she was also prepared to swear a holy oath. Finally, the judge asked if Hussein had any proof to support his assertion that his wife had not returned to him, to which the husband answered no.

The qadi then made the following findings: that a wife has the right to request a new residence among people who could serve as witnesses to her treatment; that the husband admitted to having her things and not having paid support; and that the wife had provided proof of having once returned to their home. Therefore, a new dwelling must be found and Hussein must pay the back support and return the possessions that belong to his wife, but Fatma must return to live with her husband. Hussein later appealed the qadi’s decision, but the higher court upheld the judgment without further comment.

The case thus contains a host of revealing features. In Islam it is the payment of a sum of money or goods from the husband or his family to the wife or her marital guardian (traditionally her father) that makes the marriage, rather than some religious ceremony. Indeed, it is by garnering such a bridewealth payment that a man demonstrates that he is someone who has a network of supporters, this being the key feature (and hence the functional equivalent of a rite of passage) by which manhood itself is defined. Each man must form relations of debt as proof of his capacity to negotiate the world of kinship and allies, and that by being deeply enmeshed in ties to others his own actions have become reasonably predictable and reliable. Forging such bonds with others shows that a man is conforming to the expectations of Islam and common sense by becoming a person whose knowledgeable actions have real-world social consequences.

Because marriage is essentially a contract various conditions are read into it by the law while other provisions may be added by agreement between the parties. Thus support and provision of a proper home are legally required of the husband, though recent changes in the law provide that wives—who may now be better educated and regularly employed than their husbands—may be equally responsible for these costs. While a husband could, in the past, divorce his wife arbitrarily—even without her knowing about it until it was an accomplished fact—recent changes in the law require that a husband register a divorce at the court, where the judge may impose certain costs on him. Moreover, the law reads in, often as a matter of local custom, certain rights for the wife. Thus Fatma’s demand for a new place of residence ‘among righteous people’ (bin qaumen saliḥin) is really a protection for her: In case of difficulties with her husband she will need reliable witnesses, who are not related to either party, to support her claims.

Moreover, at least in Morocco, a legal fiction also works in the wife’s favor, for the marriage contract invariably lists the bridewealth payment but is typically silent about the goods (called “the furnishings of the household,” attat l-bayt) that should be purchased for the wife to bring into the union. When I first began work in the region the usual practice was for the groom’s bridewealth payment to go to the bride’s marital guardian (wali) who, by local custom, would add to it and purchase the household furnishings. As a result of the 2004 reforms in the code, however, a woman is no longer required to be represented by a marital guardian, though many women continue to see the use of such a person as a protection in the marital negotiations and the consequences of marriage.3 But the earlier presumption about the items supplied by the woman or her family continues to operate. Thus in the event of divorce virtually all “furnishings” are thought to belong to the wife, even if they were acquired later in the marriage. As a result, one tactic commonly employed by the wife (often with the help of her mother) is to keep getting the husband to buy household items as a deterrent to the exercise of his power of divorce or as insurance should such a divorce ever occur. That all divorces must now come from the court has, by all accounts, had little effect on this pattern.

Other clauses could have been added to the marriage contract by the parties. Fatma, for example, could have bargained for a provision that requires her husband to issue a divorce either on her demand or under certain conditions. She could also have demanded that he not move her very far from her own relatives or that he not take another wife without divorcing her first, clauses that are, however, rather more frequent among the urban and reasonably well-off than among rural people like Hussein and Fatma. More common nowadays for urbanites is a clause that assures the wife that she may continue to work outside of the home. Additionally, the wife and/or her family may have accepted only part of the bridewealth initially, the remainder being due upon the death of the husband, divorce, or on the wife’s demand, a condition that may have been included particularly if the man is marrying up socially, if the bride’s family suspects his motives and reputation, or as an instance of the general cultural recognition that debt secures relationships.

The case of Hussein and Fatma also showed how Moroccan judges tend to conduct their hearings. Usually they begin by determining exactly who is connected to whom in a case and the range of their communal relationships. In addition, they often let the parties start challenging each other in order to see just how strongly they feel about the matter at hand. Whereas courts in Britain and the United States tend to restrict the issue before them to some narrow legal question, Muslim judges commonly try to figure out what sorts of ties people have within their community. Judges tell me that they want to know what people have done in the past as a way of helping to decide what the impact of the court’s decision will be on the array of individuals to whom the parties are attached. Moreover, judges indicate that they think of each case as virtually unique. Since no two people are the same and their situations constantly alter, the idea that similar cases should be decided similarly—so central to much of Western ideas of justice—seems to them an oxymoron. And whereas Western court officials often think of themselves as extremely effective at determining facts (as, for example, through forensic and scientific assessment), the Moroccan judges, like their Arab compatriots elsewhere, imagine that they are particularly adept at assessing persons.

That is why, in Hussein and Fatma’s case, the use of witnesses was so important. For what litigants like Fatma try to do is to bring at least three, and preferably twelve, witnesses before one or two pairs of court notaries who quiz the witnesses individually and document their testimony, as, for example in this case, that Fatma had indeed previously returned to her husband. In the past, individuals had to be certified as “reliable witnesses,” that is, as persons whose networks of ties would tend to lead them not to lie lest they lose their credibility as partners in various enterprises and relationships. The document that Fatma received from the notaries was highly persuasive to the court. Had Hussein produced a similar document, as happens in a number of cases, the court would have tried to resolve the issue not through further factual inquiry but by deciding which group was most likely to know the truth or to have sufficient distance from the litigant as to appear more believable.

In ways both formal and subtle, then, I was beginning to see that women were not utterly without countervailing powers in this society. Indeed, watching the women in court, far from it being an exercise in observing male domination or utter deference to the judge, was (as some of the films noted below exhibit so graphically) to watch strong-willed women who often knew their legal rights and were prepared to argue strenuously for their recognition.

Several other features also began to command my attention as a r...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• Introduction: Approaching Islamic Law
• part 1.  Following the Law
• part 2.  Justice in an Imperfect World
• epilogue: The Rule of Law or the Rule of Justice?
• Notes
• Bibliography
• Index