Inscribing Islamic Shari‘a in Egyptian Divorce Law

Abstract

As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari'a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari'a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.

Implementing the Law of khulʿ in Egypt

“…While Egyptian judicial practice is multi-layered, some discourses are more dominant than others. As argued elsewhere, 57 several regularities stemmed from a conceptualization of the nuclear family and marriage as held together by Quranic emotion-based virtues such as amity (mawadda) and mercy (rahma). Contemporary judges' notions of family and marriage may thus be situated within the context of 19 th and 20 th century discourses where the nuclear family was reconfigured as the cornerstone of the nation, and marriage as the foundation of the family.…”

Introduction

“…This followed developments in legal studies at large, influenced by feminist sociological and anthropological approaches, where a shift in paradigm took place in changing the focus from law as rules in doctrinal works (of Islamic jurisprudence and modern law codes) to law as process (Moore 1978;Smart 1989). Equally important was the debunking of pervasive Orientalist assumptions which posited Islamic law as a monolithic entity instead of exploring its embeddedness in a variety of legal and social contexts (i.e., Agmon and Shahar 2008;Bowen 2003;Buskens 1999;Carlisle 2007Carlisle , 2019Dahlgren 2010Dahlgren , 2012van Eijk 2012van Eijk , 2016Lindbekk 2013Lindbekk , 2016Peletz 2003;Rosen 1989;al-Sharmani 2009al-Sharmani , 2017Shehada 2005;Sonneveld 2012;Voorhoeve 2012Voorhoeve , 2014. Studies on Islamic legal practice in present-day courts have gained inspiration from studies on premodern Muslim court records.…”

Filling Gaps in Legislation: The Use of Fiqh by Contemporary Courts in Morocco, Egypt, and Indonesia

“…Judges who were interviewed said that when they were initially appointed to family courts, they spent a great deal of time reading their colleagues' decisions for guidance on how to do their jobs correctly. Consequently, they developed eighteen or so different templates based on the abstract descriptions of cases and rules provided by lawyers at the time of filing law suits, such as marriage authentication (Lindbekk, 2016). Offering model judgments, such templates facilitate the application of law by helping judges manage their case loads more efficiently.…”