Fatwas and Court Judgments

Fatwas and Court Judgments Fatwas & Court Judgments A Genre Analysis of Arabic Legal Opinion • Ahmed Fakhri The Ohio State University Press ■ Columbus Copyright © 2014 by The Ohio State University. All rights reserved. Library of Congress Cataloging-in-Publication Data Fakhri, Ahmed, 1949– author. Fatwas and court judgments : a genre analysis of Arabic legal opinion/Ahmed Fakhri. pages cm Includes bibliographical references and index. Summary: By examining Arabic legal opinions, Ahmed Fakhri seeks to understand how the organization of these texts accom- plishes specific social goals. In doing so, he hopes to illuminate sociocultural practices among those who produce and use these texts. Like other sociolinguistics projects, this manuscript unites texts with their social contexts. Fakhri also points out that legal texts have traditionally held an important place in Arabic culture and therefore provide an especially illuminating window into the broader realm of Arabic thought and culture. ISBN-13: 978-0-8142-1244-8 (cloth : alk. paper) ISBN-10: 0-8142-1244-1 (cloth : alk. paper) ISBN-13: 978-0-8142-9347-8 (cd- rom) ISBN-10: 0-8142-9347-6 (cd- rom) 1. Arabic language— Discourse analysis. 2. Fatwas. 3. Islamic law— Language. 4. Sociolinguistics. I. Title. PJ6074.F26 2014 340.5'922— dc23 2013030853 Cover design by James A. Baumann Type set in Minion Pro Printed by Thomson-Shore, Inc. ∞ The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials. ANSI Z39.48–1992. 9 8 7 6 5 4 3 2 1 to Mmiya, Nora, and Besma Contents Acknowledgments xi List of Tables xii Introduction 1 Chapter One Purpose and Rationale 5 1. Purpose 6 2. Rationale 7 2.1. The Importance of Legal Texts in Understanding Muslim Culture 8 2.2. The Importance of the Contribution to Arabic Discourse 10 2.2.1. Development of Arabic Discourse Analysis: From Textual Analysis to Genre Analysis 11 2.2.2. Contribution to the Study of Arabic Legal Discourse 14 3. The Sociolinguistic Situation of Arabic 18 Summary 21 Chapter Two Theoretical and Analytical Framework 23 1. Theoretical Framework: The Concept of Genre 23 1.1. Fundamental Aspects of Genre 24 1.2. The Swales Approach 25 2. Analytical Framework: Data and Procedure 31 2.1. The Institution of ’iftaa’ 31 2.2. The Moroccan Judiciary 35 2.3. The Data 38 2.4. Analytical Procedure 40 Summary 43 Chapter Three Rhetorical Analysis 44 1. The Rhetorical Structure of the Court Judgments 44 1.1. Move 1: Giving the History of the Case 44 1.2. Move 2: Stating the Petitioner’s Claims 45 1.3. Move 3: Presenting the Opinion of the Court 46 1.4. Move 4: Pronouncing the Decision 47 vii 2. The Rhetorical Structure of the Fatwas 49 2.1. Move Analysis of the Fatwas 50 2.2. Variation in the Realization of Moves 53 2.3. Assessing the Analysis 56 3. Discussion 58 3.1. Degree of Structural Variation 58 3.2. Difference in Degree of Relevance 62 Summary 68 Chapter Four Contents Linguistic Properties of Court Judgments and Fatwas 69 1. Syntactic Complexity 70 1.1. Sentence Structure 70 1.2. Complex Noun Phrases 76 2. Formulaic Language 83 2.1. Preliminary Remarks 83 2.2. The Functions of Formulaic Language in Court Judgments and Fatwas 85 2.2.1. General Formulas 85 2.2.2. Formulaic Expression of Legal Concepts 87 2.2.3. Formulas with Discourse Functions 88 3. Citations 91 3.1. The Use of Citations in Discourse 91 3.2. Modes of Reference to Previous Texts in Court Judgments and Fatwas 93 3.3. Attribution to Authors 95 Summary 98 Chapter Five Conclusions and Implications 100 1. The Significance of Adopting the French Model in the Court Judgments 101 2. Consequences of Borrowing on the Host Language 103 2.1. Morphosyntactic Adjustments 104 2.2. Impact of the Transfer of French Patterns on Arabic Rhetoric 106 3. Fatwas and Their Sociocultural Milieu: Mutual Influences 112 3.1. The Sociocultural Climate 113 3.2. Impact on the Rhetoric of Fatwas 116 4. Remarks on Genre and Culture 119 4.1. Intellectual Styles: Thought Clarity and Explicitness 119 4.2. Politeness and Face 121 4.3. Utilitarian Comportments 122 4.4. Gender and Access to Discourse 123 5. Suggestions for Further Research 124 Summary 126 viii Appendix A: Complete References of Fatwas 127 Appendix B: Complete References of Court Judgments 129 Appendix C: French Judgment 130 Appendix D: Key Arabic Terms 132 Appendix E: Excerpts in Original Arabic Script 134 Appendix F: Versions of a Modified Fatwa Used in the Study of the Effect of Sources on the Perceived Quality of Fatwas 137 References 139 Indexes 149 Contents ix Acknowledgments The section on citations (page 91) is partly based on my 2008 article, “Citations in Arabic Legal Opinion: ’iftaa’ versus qaDaa’ ” published in D. Parkinson (ed.), Perspectives on Arabic Linguistics, with kind permission by John Benjamins Publishing Company, Amsterdam/Philadelphia, www .benjamins .com. The sections on rationale (page 7) and complex noun phrases (page 76) are partly based on my 2012 article “Nominaliza- tion in Arabic Discourse” published in Reem Bassiouney and Graham Katz (eds.), Arabic Language and Linguistics, with kind permission by Georgetown University Press. www .press .georgetown .edu. I would like to thank two anonymous reviewers for their helpful com- ments and Professor Barbara Johnstone for her very encouraging feed- back on an earlier version of this study. The book was partially supported by the Eberly College of Arts & Sciences Book Subvention Program. I appreciate the professionalism of the editors and staff at The Ohio State University Press and would like to thank in particular Malcolm Litchfield, Eugene O’Connor, and Kristen Ebert-Wagner for their invalu- able assistance. I also thank Dr. Martin Boyne for doing the indexes. xi List of Tables Table 1 Topics Addressed in the Fatwas 39 Table 2 Topics Addressed in the Court Judgments 39 Table 3 Phonetic Value of Symbols Used in the Arabic Transcription 43 Table 4 Structure of a Court Judgment with Recycled Moves 49 Table 5 Structure of a Fatwa with Recycled Answer-Support Format 51 xii Introduction • A little more than two decades ago, an important article on the state of Arabic linguistics noted the paucity of discourse analysis studies, especially compared with other fields such as theoretical linguistics and sociolinguistics (Eid 1990:26). The author described the dire state of discourse analysis research in the following terms: In the area of discourse analysis, I have not found anything on spoken discourse; on written discourse or texts some work is now emerging—especially that of Johnstone and Al-Batal. Since then, however, there has been a steady increase in the number of studies that have focused on various aspects of Arabic texts, describing salient textual features such as repetition and coordination or providing discourse accounts for the use of particular linguistic elements (John- stone 1990, 1991; Al-Batal 1990; Fakhri 1995, 1998; Khalil 2000). In spite of this growing interest in Arabic discourse, only a limited number of studies have adopted a genre analysis approach to investigate Arabic texts. Notable examples of such studies are Najjar (1990) and Fakhri (2004, 2009). Using insights from the genre analysis model proposed by Swales (1990), Najjar (1990) and Fakhri (2004) analyze the moves utilized in introductions of Arabic research articles from the field of agricultural sciences and from humanities and social sciences research, respectively. In a similar vein, Fakhri (2009) compares and contrasts research article introductions from law and humanities. The present study extends this line of research by investigating two culturally significant genres from the domain of law: secular court judgments and fatwas, the Islamic edicts based on sharii’a law. Although these two genres belong to two distinct institutions, ’iftaa’ “fatwa issuing” and 1 qaDaa’ “judiciary,” they both aim at providing legal opinions based on sharii’a in one case and on secular laws and statutes in the other. The study seeks to make two important contributions. First, it builds upon the limited research on Arabic genres conducted so far and highlights the usefulness of genre analysis for achieving more meaningful explora- tions of Arabic texts that go beyond traditional surface descriptions of textual features. In this respect, the analysis presented here not only iden- tifies and describes important linguistic and rhetorical properties of the data considered, but also offers insightful accounts for their occurrence Introduction in terms of the purpose of the texts that contain them and the sociocultural context in which these texts are produced and utilized. Thanks to this type of inquiry, Arabic discourse analysis will be able to keep pace with developments in other fields (e.g., applied linguistics, contrastive rhetoric, and business and technical communication) that have benefit- ted greatly from the thriving research on genre (Paltridge 2001; Johns 2002; Swales 2004; Hyland 2007; Loi and Sweetnam Evans 2010; Stroller and Robinson 2013). Second, the study focuses on data from the domain of law that have rarely been explored in Arabic linguistic research. Consideration of such data may potentially lead to new insights regarding the specialized language of the law and enhance the contribution of linguists to a domain that has traditionally occupied a prominent place in Arab and Islamic culture thanks to the vast scholarship in the discipline of fiqh, the science of law (Hallaq 2005). Studies of legal discourse in Western cultures have shown that it is characterized by the use of a technical jargon, uncommon and often archaic terms, peculiar syntactic constructions, and the preva- lence of formulaic expressions (Cornu 1990; Bhatia 1993; Tiersma 1999; Mattila 2006).

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