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School Boundaries and Social Utility in Islamic Law: the Theory And SCHOOL BOUNDARIES AND SOCIAL UTILITY IN ISLAMIC LAW: THE THEORY AND PRACTICE OF TALFĪQ AND TATABBUʿ AL-RUKHAṢ IN EGYPT A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Arabic and Islamic Studies By Ahmed Fekry Ibrahim, M.A. Washington DC, April 6, 2011 Copy Rights 2011 by Aḥmad Fekry Ibrāhīm All Rights Reserved ii A Note on Transliteration I follow the transliteration style of the International Journal of Middle East Studies (IJMES), with some modifications. For Arabic, IJMES uses the modified Encyclopedia of Islam system, in which qaf = q not k and jim = j not dj. I will, however, use macrons and dots not only in italicized technical terms, but also in personal names, place names, names of political parties and titles of books. I also transliterate non-technical terms such as Sharī῾a, even though they are not transliterated according to IJMES. Below is a list of the IJMES Arabic sounds: ʾ ء b ب t ت th ث j ج ḥ ح kh خ d د dh ر r س z ص s س sh ش ṣ ص ḍ ض ṭ ط ẓ ظ ʿ ع gh غ q ق k ك l ل m و n ن h ه w و y ي Long vowels ā ا ū و ī ي iii SCHOOL BOUNDARIES AND SOCIAL UTILITY IN ISLAMIC LAW: THE THEORY AND PRACTICE OF TALFĪQ AND TATABBUʿ AL-RUKHAṢ IN EGYPT Ahmed F. Ibrahim, MA Dissertation Advisor: Felicitas Opwis, PhD ABSTRACT In this study, I focus on how the Ottoman legal establishment used the pluralistic Sunni legal system to serve the needs of Egyptian society. I examine a thousand and one cases from three Egyptian courts from the seventeenth and eighteenth centuries, namely the Courts of Miṣr al-Qadīma, al-Bāb al-ʿĀlī and Bulāq. I show that although the Ottomans supported Ḥanafism as the official school, it functioned more like a default school, in which most cases were brought to Ḥanafī judges unless there was a need to bring them to other judges. When there was a need to choose another school, the most lenient school was used to facilitate people’s transactions. This was achieved through either tatabbuʿ al-rukhaṣ or talfīq. Those practices of the court, which date back to the Mamluk period, led to a change in juristic attitudes towards the pragmatic crossing of school boundaries. In the process of the legal theoretical adjustment to social practice, debates over the validity of talfīq and tatabbuʿ al-rukhaṣ raged after the stabilization of the schools and the ascendancy of taqlīd,1 eventually leading to a breach of the classical consensus over their ban. Although this process started as early as the thirteenth century, the debate continued well into the Ottoman period. 1 Taqlīd, is a legal term that means following another jurist’s opinion. It is usually used in opposition to ijtihād, which is exercising one’s independent legal reasoning. iv Those Ottoman debates laid the way for the codification of Sharī῾a in the twentieth century, using those pragmatic approaches. Modern jurists and legislators engaged those same Ottoman debates in their own discussion of crossing school boundaries for utility. Through a marriage between theory and practice, I argue that the codification of Sharī῾a in the twentieth century can therefore be viewed as a natural evolution of the Ottoman legal system. In the first two chapters, I trace the views towards crossing school boundaries to show that there was a gradual shift in juristic attitudes in favor of permitting crossing school boundaries, contrary to some contemporary scholars’ argument that talfīq was outright forbidden in the pre-modern period. In the third and fourth chapters, I discuss the practice of seventeenth and eighteenth-century Egypt and compare it with the modern codification of Sharī῾a. v This dissertation is dedicated to my family and to the people of Tunisia and Egypt who through peaceful protests redeemed their freedom from oppressive regimes. vi TABLE OF CONTENTS Introduction .................................................................................................................. 1 Chapter I Pursuing the Easier Rulings: Tatabbuʿ al-Rukhaṣ .................................................... 39 Chapter II Talfīq in Islamic Legal Theory .................................................................................... 82 Chapter III Tatabbu῾ al-Rukhaṣ and Talfīq in Practice ............................................................... 109 Chapter IV Tatabbu῾ al-Rukhaṣ and Talfīq in the Modern Period ............................................. 165 Conclusion ................................................................................................................ 203 Tables .......................................................................................................................... 212 Bibliography ............................................................................................................... 215 vii INTRODUCTION In 2006, Shaham conducted a study on the shopping of legal forums among Egyptian Christians within the pluralistic Egyptian legal system of the nineteenth century. He showed that Christians maneuvered between their own family laws and those of the Islamic majority and suggested that a similar study should be conducted for the four Sunni schools of law among Muslims.2 There are two terms in Islamic legal history that are associated with this maneuvering among the four schools when it is performed for pragmatic reasons namely talfīq and tatabbuʿ al-rukhaṣ (see below). They refer to a choice of forum, i.e. the legal doctrines of one of the four Sunni schools of law, which is not performed based on the strength of evidence or any inherent value in that opinion, but simply for utility.3 I will show that talfīq and tatabbu‘ al-rukhaṣ, which were forbidden in classical legal theory, were increasingly becoming a subject of debate in the Mamluk and 2 Ron Shaham, “Shopping for Legal Forums: Christians and Family Law in Modern Egypt,” In Dispensing Justice in Islam: Qadis and their Judgments, ed. Muḥammad Khalid Masud, Rudolph Peters and David S. Powers (Leiden: Brill, 2006), 468. 3 Utilitarianism is a consequentialist theory which states that the moral worth of an action is determined by its contribution to happiness. For discussions of consequentialist and deontologist ethical philosophies, see Joel J. Kupperman, “Vulgar Consequentialism,” Mind, vol. 89, No. 355 (July 1980), 321- 337; Crisp Roger, The Oxford Companion to Philosophy, ed. Ted Honderich (Oxford University Press, 1995); David Sosa, “Consequences of Consequentialism,” Mind, Vol. 102, No. 405 (Jan., 1993), 101-122. The functioning of the Ottoman courts and the ensuing theoretical debates about the crossing of school boundaries were essentially a struggle between what can be called legal deontologists and consequentialists. The consequentialists considered the consequences of actions as the basis for determining their acceptability. Those jurists supported the choice of schools based on the legal results, rather than the legal rules. Legal deontologists, on the other hand, wished to assess actions/legal rulings not by their consequences, but by the inherent soundness of those rulings through ijtihād or through the taqlīd of the ijtihād of others, namely a school or a muftī. 1 Ottoman periods. The result of those debates was that their status changed from forbidden by consensus to allowable within the more fluid ikhtilāf paradigm.4 There is no study that diachronically traces attitudes among scholars towards talfīq and tatabbuʿ al-rukhaṣ in legal theory. There is, however, evidence that people chose judges based on the legal outcome, which had to do with differences among the four schools. Tucker, for example, discusses a fatwā (a non-binding legal opinion issued by a muftī) by the seventeenth-century Ḥanafī jurist, Khayr al-Dīn al-Ramlī, in which the fatwā-seeker had previously chosen a Shāfiʿī judge to get a divorce according to Shāfiʿī law.5 Similarly, in her study of seventeenth and eighteenth century court records from Jerusalem and Damascus, Tucker shows that the court system made use of legal diversity, granting women divorce in situations where Ḥanafī doctrine would not have achieved the desired results.6 While the above instances mentioned by Tucker correspond to what Mamluk and Ottoman jurists dubbed tatabbuʿ al-rukhaṣ, no study has been conducted on the practice of talfīq. There is also no systematic study on tatabbuʿ al-rukhaṣ that attempts to comprehend the consistency of the use of the four schools according to the types of cases in question. If there was a distribution of labor among the four Sunni schools of law; how consistent was it? Was the choice of forum not circumscribed at all by the 4 Ikhtilāf refers to the body of legal literature, on which jurists from the four Sunni schools of law did not agree either on issues of substantive law or legal theory. 5 Judith E. Tucker, Women, Family, and Gender in Islamic Law (Cambridge: Cambridge University Press, 2008), 108. 6 Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (California: University of California Press, 1998), 82-3. 2 Ottoman authorities? Those questions will be addressed through a study of seventeenth and eighteenth-century Egyptian court records. Answering those questions will illuminate not only the history of Islamic law, but will also make a contribution to our understanding of Ottoman society in the seventeenth and eighteenth centuries. This examination of the practice of tatabbu῾ al-rukhaṣ and talfīq
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