Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women’s Rights in the Nineteenth Century

5Reorganization of the Sharia Courts of Egypt

How Legal Modernization Set Back Women’s Rights in the Nineteenth Century1

Kenneth M. Cuno

HISTORIANS HAVE TENDED to neglect the reorganization of the Sharia courts in the nineteenth-century Ottoman Empire and its autonomous Egyptian province, both as a process that was part of the Tanzimat-era restructuring of the legal system and in terms of its social consequences. Standard if somewhat dated accounts have emphasized the drafting of new codes of law that emulated the French codes in form and often in content, the establishment of new courts to administer those codes, and the subsequent rise of the modern legal profession.2 Recent social-historical studies addressing developments in the judicial system of nineteenth-century Egypt have mainly focused on the application of criminal law, in which the Sharia courts played a minor role.3 While valuable, those studies have not challenged the assumption in the older literature that the restriction of the jurisdiction of the Sharia courts to family matters as a consequence of the issuance of codes of criminal, commercial, civil, and property law reduced their importance. That literature equated legal “modernization” or “reform”4 with codification. But the codification of Muslim family law did not begin until the twentieth century, and so it was assumed that until then “the one area that remained essentially untouched” by modern change “was family law.”5

Generations of scholars have studied the adoption of European civil law in the Turkish republic and the codification of Muslim family law in other Ottoman successor states. The Ottoman Law of Family Rights (OLFR, 1917) was the first code derived from Muslim family law. In Egypt, which by then was no longer part of the Ottoman Empire, the codification of family law began in the 1920s. Unlike the OLFR, which was a comprehensive family law, the Egyptian approach was piecemeal. Law No. 25 of 1920 dealt mainly with the problem of husbands who failed to fulfill their legal obligation to financially support or maintain their wives. Law No. 56 of 1923 set a minimum age of marriage for both sexes. Law No. 25 of 1929 reformed the law of divorce, restricting the ability of men to pronounce divorce capriciously and expanding the ability of women to petition a judge for a divorce for cause. In the standard view the OLFR and the Egyptian laws of the 1920s marked the beginning of modern change in family law and hence of legal modernization in the Sharia court system.

Ottomanist historians have begun to overturn this orthodoxy by demonstrating, first, the continued importance of the Sharia courts in social life in this period, and, second, how new procedural rules changed the way that the law was applied. New measures beginning in the 1850s established a provincial judicial hierarchy with an appeals process, regulated the terms of service of judges, and fixed legal fees. A school for Sharia court judges opened in 1855, and a few years later the Ministry of Şeyhülislam took control of appointments, ending the practice of judges selling lower positions.6 Throughout the reorganized judicial system a greater emphasis was placed on the use of legal documents as evidence, and necessarily their proper drafting. Regulations concerning the drafting of Sharia court protocols were issued in the 1870s, and the curriculum of the school for Sharia court judges emphasized the drafting of documents.7 Iris Agmon, in her study of the Sharia courts in late Ottoman Palestine, noted that the volume of court cases increased in the second half of the nineteenth century, which is indicative of the growing importance of the courts in documenting as well as adjudicating the affairs of people. She also challenged the idea of a static family law, pointing to the new court procedures as indirectly effecting change and the creation of a government body to supervise the properties of orphans as a more direct intrusion. Changes such as these in the application of family law went unnoticed by historians, she wrote, because they were “introduced as . . . administrative instructions” and not as substantive changes in or codifications of the Sharia.8

The reorganization of the Sharia court system in Egypt followed a similar path, though with some differences. Beginning in the mid-nineteenth century a series of laws reorganized the Sharia courts, introducing a hierarchical structure, detailing the qualifications of their personnel, setting fees, and defining procedures. Like their Ottoman counterparts, the Egyptian procedural laws have not been understood as representing a phase of legal modernization in the Sharia court system, because they did not involve the codification of the Sharia itself. I argue that they comprised a preliminary phase of modernization and that the second phase began in the 1920s with codification.

In Egyptian historiography the family law codes of the 1920s are important for a second reason, as reforms that improved the lives of women. These laws enabled married women to collect arrears of maintenance from their husband more easily and to free themselves from marriage on the grounds of non-support, desertion, the husband’s disappearance or imprisonment, and marital difficulties resulting in harm. It also enhanced their security in the marital relationship by not permitting men to exercise their right of unilateral divorce (talaq, or repudiation) conditionally, in anger, or while inebriated, and by requiring that a triple pronouncement of repudiation be done at intervals. The minimum marriage age (sixteen for women, eighteen for men) promoted consent in marriage, since in Muslim family law women and men were considered to have achieved adulthood at the age of fifteen at the latest, and adults could be married off only with their express consent.9

Third, the family codes of the 1920s were innovative in method. Their drafters enhanced the position of women by incorporating aspects of Maliki jurisprudence into a law based primarily on Hanafi jurisprudence. The selection (takhayyur) of rules from the different schools of jurisprudence to achieve a desired result had been advocated by the late Grand Mufti Muhammad Abduh (1899–1905) and his followers. Hence the family codes of the 1920s fit nicely into the progressive meta-narrative of modern Egyptian history. They were landmarks in family law reform, women’s rights, and Islamic modernism.

This article, which begins with a description of the pre-modern Sharia Court system in Ottoman Egypt, argues that the principal legal disadvantages of married women that the legislation of the 1920s ameliorated were not features of a “traditional” Islamic system, as the modernist meta-narrative implies. Rather, those disadvantages were a consequence of the procedural changes introduced in the Sharia court system during the nineteenth century. The legislation of the 1920s restored to married women most of the legal options that their great-grandmothers had enjoyed.

Prior to its reorganization the Sharia court system in many Ottoman provinces was characterized by a kind of pluralism, in the sense that jurists from one or more of the schools of jurisprudence, in addition to judges from the officially patronized Hanafi school, were available to litigants and those seeking notarization of their affairs. In the courts of Ottoman Cairo there were deputy judges of the Shafi‘i, Maliki, and Hanbali schools. The old system permitted “forum shopping,” in which one could approach a jurist from the school of jurisprudence that was most amenable to the desired outcome. Although the doctrine of each school of jurisprudence was relatively rigid, forum shopping allowed for a degree of flexibility in the application of the law. By the middle of the nineteenth century, however, this flexibility was lost. As part of the reorganization of the Sharia court system, judges were instructed to apply only Hanafi jurisprudence in their rulings. In Egypt the change was effective perhaps as early as the mid-1830s, and it is evident in the fatwas issued by the Grand Mufti Muhammad al-Abbasi al-Mahdi (served 1847–97) at mid-century.10 The rule restricting judges to Hanafi jurisprudence was inscribed subsequently in the procedural laws of 1856, 1880, and 1897. The Hanafi school made it more difficult for women to collect arrears of maintenance from their husbands than the other schools of jurisprudence; and unlike the other schools it severely restricted the ability of women to seek a judicial divorce or annulment for a cause. Thus the procedural laws dealt a setback to the rights of married women in Egypt by eliminating their ability to forum shop in the judicial system.

Judicial reorganization in the provinces under direct imperial rule also put an end to the system of forum shopping, but the government softened the harshness of Hanafism by permitting women to petition for annulments according to Shafi‘i and Maliki jurisprudence in cases of non-support and desertion. The OLFR included those exceptions and also enabled women to divorce a husband who had gone missing for four years.11 It is not clear why Hanafi jurisprudence was applied more strictly in the Sharia court system of Egypt than in the rest of the Ottoman Empire. It is evident that while in both systems the intent was to establish a unified family law in application, the imperial authorities alone recognized the need to incorporate elements of non-Hanafi jurisprudence so as to offer relief to women in difficult marriages. The Ottoman example and the memory of the old system of forum shopping was probably what inspired Abduh to advocate takhayyur as a remedy for the difficulties faced by married women in Egypt.12 The legislation of 1920 and 1929 was to a large extent a response to his advocacy, and it improved the situation of women by incorporating elements of Maliki jurisprudence.

The Egyptian procedural laws were also similar to their Ottoman counterparts in putting gradually more emphasis on the use of notarized documents in establishing legal evidence. By the end of the century the Sharia courts required documentary evidence in matters involving marriage and divorce, and the courts themselves were a principal forum for issuing documents. Consequently there was a decline in legal informality as more people contracted marriages and documented divorces formally—that is, before an officer of the court—and necessarily in conformity with the letter of the law. As in late Ottoman Palestine, in late Ottoman Egypt the Sharia courts were busier than ever.

Pluralism and Forum Shopping

Multiple forms of legal pluralism existed within the pre-modern Ottoman Empire. Jews and Christians were subject to their own religious laws, and foreigners to their own national laws, under the Capitulations. A third type of pluralism—Islamic legal pluralism—existed in the Ottoman Sharia court system. The chief judges in the major towns, appointed from Istanbul, were Hanafis and graduates of the imperial madrasas in the central part of the empire (with some exceptions in the eighteenth century). But in districts where the population included adherents of the other schools of jurisprudence, deputy judges (na’ibs) from those schools were also appointed. Thus, Shafi‘i deputies were appointed in some Anatolian provinces and in all of the provinces of Greater Syria and Iraq, and Maliki deputies were appointed in the North African provinces.13 All four schools of jurisprudence were represented in the courts of Ottoman Cairo, a legacy of the appointment of co-equal judges from the four schools during the Mamluk Sultanate (1250–1517).14

Although there are large areas of agreement between the Sunni schools of jurisprudence they differed in the historical development of their method for deriving normative rules from the Qur’an and Sunna, and hence their rules differed to some degree. The accompanying table shows some of the salient differences between the schools that appeared in a sample of handbooks on marriage written in Ottoman Egypt, all of them published in the nineteenth century. Some of these handbooks were comparative works—that is, comparing the doctrines of the juridical schools—since legal pluralism persisted in the Sharia courts though the first third of the century. I do not claim that the table represents immutable doctrines. Juridical opinions varied over time and place within schools as well as between them, and so I have drawn on Ottoman Egyptian works for the preferred opinions of that place and time.

Each school of jurisprudence offered women favorable options in some areas and restrictions in others. For example, Hanafi jurists were the only ones to allow an adult woman to marry without the involvement of her guardian, but once she was married they would not permit her to seek an annulment for non-support, desertion, or abuse, nor would they declare a husband gone missing deceased within a reasonable period so that she could re-marry. On the other hand, Shafi‘i and Maliki judges would grant women annulments on the aforesaid grounds and declare a missing man deceased after four years, but they absolutely required a woman to be married off by a qualified guardian. The latter also accounted unpaid maintenance as a debt against the husband from the day he ceased to provide it, while the Hanafis required the rate to be set formally before a debt could accumulate. During marriage negotiations women (or their guardians) often insisted upon certain stipulations to offset the marital authority of their husband-to-be. The most popular stipulation was that the husband would not marry a second wife nor acquire a slave concubine, and other common stipulations concerned where the wife would reside, her ability to work, and her ability to visit friends and relatives and receive visitors. As the table illustrates, each of the four schools recognized stipulations of that sort, using different legal devices.

One of the fatwas of the Palestinian mufti Khayr al-Din al-Ramli (d. 1671) illustrates how women forum shopped between the schools to their advantage. The question involved a woman who had gone to a Shafi‘i deputy judge to have her marriage annulled on the ground that her husband deserted her without support, and the Hanafi chief judge had executed the decision of his Shafi‘i colleague. Then the woman re-married on her own, without a guardian, making use of the Hanafi rule. Asked whether such maneuvering between the juridical schools was permissible, al-Ramli responded that under the circumstances she could marry in accord with either the Shafi‘i or Hanafi rules, since the earlier decision had been made by a Shafi‘i and executed by a Hanafi.15 Al-Ramli was one of the Hanafi authorities cited most often by the Egyptian Grand Mufti al-Abbasi.

According to Judith Tucker, Syrian women obtained annulments in similar circumstances from Shafi‘i or Hanbali judges, and in Cairo, James Baldwin found that women preferred Maliki and Hanbali judges for annulments.16 Nor was forum shopping unique to the Ottoman Empire and that era. In his answer al-Ramli cited a similar case decided by al-Marghinani, who lived in Central Asia in the twelfth century. Muslim women in India forum-shopped between the Hanafi and Shafi‘i schools to obtain annulments and to re-marry on their own, and forum shopping for these and other purposes between the legal schools was also practiced in the East Indies, Malaya, Yemen, East Africa, and West Africa.17

In Egypt in 1849 the Grand Mufti al-Abbasi considered a case in which a woman was abandoned by her husband for four years without support, and she re-married after receiving an annulment from the judge in her village. Al-Abbasi responded that, legally, she was still married to her first husband, saying that a judge was not permitted “to divorce a missing man for non-payment of maintenance under any circumstances, even if the judge sees that as proper according to his [own] school of jurisprudence, because of the ruler’s prohibition of that.”18 Cases such as this one indicate that in Egypt non-Hanafi judges were accustomed to applying the rules of their own schools of jurisprudence, including the annulment of marriages for desertion and non-support, until recently. But the policy of Hanafism was in force by mid-century, albeit with some confusion at the village level.