Kramer v Kramer by Sherman Jackson

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Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative

Jurisprudence between Exigency and LawAuthor(s): Sherman A. JacksonSource: Islamic Law and Society, Vol. 8, No. 1 (2001), pp. 27-51Published by: BRILLStable URL: http://www.jstor.org/stable/3399485 .

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KRAMERVERSUSKRAMERIN A TENTH/SIXTEENTH CENTURY

EGYPTIAN COURT:

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY

AND LAW *

SHERMANA. JACKSON

(The Universityof Michigan)

To Cliff Duncan

Abstract

The relationshipbetween the individualjurist, the madhhab and scripture(Qur'anand Sunnah)has long been a topic of debateamong scholars of Islamic law. Basedon a detailedfatwd on a controversial issue in tenth/sixteenthcenturyCairo, the

presentessay describeshow, in the post-formativeperiod, the madhhab mediatedbetween thejurist and the sources. While clearly reflecting a commitment o taqlld,thisfatwd rendersproblematicthe attributionof such adjectives as "conservative"or "servile"to that institution.At the same time, it clearly suggests that non-legalfactors, such as the moral presuppositions and social outlook of the individual

jurist, are operative in the processes of shaping school doctrine and craftingindividualfatwdsfor 'difficult cases'.

I. Introduction

THE POPULARAMERICANMOVIE,Kramer versus Kramer (1979),

highlighted the saga of a young couple, Ted and Joanah Kramer, who,

after several years of marriage mutually decided to divorce. Upon

doing so, the Kramers also agreed that their five year old son, Joey,would remain in the custody of his father. Some eighteen months later,

however, Joanah Kramer found herself in a new job (and a new

relationship), at which time she decided that she wanted custody of her

son. By this time, Ted Kramerhad at long last succeeded in ingratiatinghimself with the enterprise of single parenthood and was not about to

* Versions of this article were presentedat the 1997 annual conference of theMiddle East Studies Association in San Franciso and at a Mellon Seminar on"The Crafting of the Legal Opinion (Fatwd) in Islam: Text, Subtext, Hidden

Agenda" at PrincetonUniversityin March of 1998. I would like to thank ProfessorJohn R. Willis, who invited me to this seminar, and the Princeton students and

facultywho attendedand afforded me the opportunity or a valuableexchange.

Islamic Law and Society8,1Brill, Leiden, 2001

This content downloaded from 203.78.9.149 on Tue, 20 May 2014 09:18:16 AMAll use subject to JSTOR Terms and Conditions






SHERMANA. JACKSON

relinquish he child. A bitter egal battleensued,andunconvincedbyTed Kramer'sclaim thatthe couple's agreementconstituteda perma-nent forfeiture of his ex-wife's rights to custody, the judge ruled in

favor of the formerMrs.Kramer.

In a recentlypublishedmonograph,Kitdbal-ibdnah i sihhat isqatmd lamyajibminal-haddnah,1hetenth/sixteenthenturyMalikijudgeandjurist,Badral-Din al-Qarafi,takes up a controversywhose basic

features are reminiscentof the Kramercase. This time, however, the

problem s not mothersbut fatherswho renege on previouslyagreed-

uponchildcustodyarrangements.n theopeningsegmentof thiswork,

al-Qarafispeaksof being inundatedby questions nvolving men, who

upon divorcingtheirwives, contractuallyagree(yushhidu ald nafsih)

to allow their children o remain n the custodyof theirmothers,evenifthe mothersshould remarry.2Upon learning,however, thattheirfor-

merspouseshadin factremarried,hesemen wouldreturnandpetitionfor custodyof theirchildren-ignoring their nitial agreementsas well

as the fact thatthese hadbeen formally recognizedandvalidatedby a

judge.3Thereasonfor theirchangeof heartwas said to have been their

fear thattheirchildren'swelfarewould be compromised y theirformer

spouses' preoccupationwith their new husbands.For their part, the

mothers in question flatly refused to surrender he children, taking

refuge in the previously ratified agreements.Al-Qarafireports that

impassesof thistypehadproliferatedo annoyingproportionskathlrat

al-wuqu').4His Kitdb al-ibdnahfi sihhat isqdt ma lam yajib min al-

haddnahwas a directanddetailedfatwd craftedwith the intentionofbringing hiscontroversyo its knees.

Kitdb al-ibdnahappears o have been addressedexclusively to the

Malikicommunityof Cairo.In theintroduction, l-Qarafintimates hat

only Malikijudges had suffered the indignityof having theirrulings

challengedor ignored.He notes further hatthe controversyover the

legality of fathersrenegingon such custody-agreementshad divided

Malikijuristsinto two camps.One groupheldthat the fathers n ques-tion are not boundby their initial agreements,even if these had been

formallyrecognizedandratifiedby a judge. The othergroupheld that

the fathers are absolutelybound,especially since the agreementshad

been confirmedby a judge. Al-Qaraficomes down on the side of the

1 Ed. Yahya Ahmad al-Jaradi (Saudi Arabia: Maktabat al-Ghuraba' al-

Athariyah, 1414/1994).2 Ibdnah, 32.3 Ibid., 32-33.4 See Ibdnah,32-33 for al-Qarafi'sfull characterization f the problem.

28







POST-FORMATIVE URISPRUDENCEBETWEENEXIGENCYAND LAW 29

lattergroup, nsistingthatthefathers n questionhad no rightto petitionfor custodyof their children.En route to this conclusion,however,he

would have to confront a numberof doctrinalobstacles within the

Maliki school. His approach n thisfatwc confirmswhat I have said

elsewhereabout hemodusoperandiof post-formativeurists operatingunder what I refer to as a regime of taqlid.5 Ratherthan returnto

scripture irectly n an effortto effect new interpretationsf the sources

(what I argue elsewhere to be an exercise in ijtihad proper),6 jurists

respond o changeand unforseenexigenciesby invokingnew divisions,

exceptions, definitions and precedents within the body of school

doctrine, out of which they are able to construct-as opposed to

inventing-new conclusionswhose conspicuous ink with the views of

establishedauthorities romthe pastearnthemacceptabilitywithintheschoolatlarge.ElsewhereI havereferredo thisprocessas "legalscaf-

folding".7As a post-formativeurist,al-Qarafiunderstood hat his task

was not as simple as profferinga new interpretation f the scripturalreferences to child-custody (and relatedissues), which his audience

might recognize as valid on purely substantivegrounds.Rather,he

wouldhave to reconcile his aimswith thestandingrules backedby the

immovable authorityof the Maliki legal tradition. His movement,

therefore,wouldnot be fromscriptureo thequestionat handbutrather

from the manuals offiqh and other authoritativesources within his

school to the questionat hand.In otherwords, al-Qarafi'smovement

wouldnotbe fromQur'an,Sunnahandusulal-fiqhto the issue at hand

but, rather, rom alreadytreated ssues to the issue at hand, i.e., fromfuriu'tofatwd.8 Accordingly, over the entire span of Kitdb al-ibanah-

morethanseventypages of argumentproper-he adduces not a singleversefrom the Qur'an, not a single prophetic hadith, nor a single

argumentbased on the typeof philological analyticsdevelopedunder

the discipline of usul al-fiqh. By contrast,he cites no less thantwenty-

eight sources of Maliki law (fiqh, not usul al-fiqh) andfifty-eightauthoritieswithintheMaliki school.

5 See S.A. Jackson, Islamic Law and the State: The ConstitutionalJurispru-dence of Shihdb al-Din al-Qardfi (Leiden:E.J.Brill, 1996), 73-101; idem, "Taqlid,

Legal Scaffolding and the Scope of Legal Injunctionsin Post-Formative

Theory:Mutlaq and 'Amm in the Jurisprudenceof Shihab al-Din al-Qarafi,"Islamic Lawand Society,3:2 (1996): 167-73.

6 See "Taqlid,Legal Scaffolding," 167, nt. 5.7 Ibid.8 Cf. W.B. Hallaq, "From Fatwds to Furu': Growth and Change in Islamic

SubstantiveLaw,"Islamic Law and Society, 1:1 (1994): 29-65.







SHERMANA. JACKSON

II. Badr al-Dinal-Qardfi

Badr al-Din Muhammadb. Yahya b. 'Umarb. Ahmad b. Yunus b.

'Abd al-Rahmanal-Qarafiwas born in the year 939/1533 (or accord-

ing to one account 938/1532), apparently n Cairo. A memberof a

prestigiousfamily of Malikijurists,he beganhis educationunderhis

father,who taughthim the famous Maliki manual,Mukhtasarkhalil.

He would go on to study under the leading scholars of his day,

ultimately earning the honorific, shaykh al-malikiyah.He served as

judge andmaintainedgood relationswith thenewly arrivedOttomans.

Thebiographeral-Muhibbi almostcertainlyexaggerating) eports hat

he remained n office for overfifty years.Like mostpremodernigures,

his private ife remainsshroudedn dignifiedobscurityand we areleft,thus, with no leads about how his family and otherrelations mighthave informedhis position on the present matter.As a scholar, he

authored everalworks, includinga commentaryon a workby Ibnal-

Hajib(it is not clear whether histext was in the field of usil orfiqh), a

conmmentaryon Malik'sal-Muwatta',a commentaryon the Tahdhib

of al-Baradhi'i (d. 386/996), in which he set out to establish which

among the competingviews espousedwithin the madhhabshould be

accepted as the going opinion (mashhtir),9and a supplementto Ibn

Farhun's biographical dictionary of Maliki scholars, al-Dibdj al-

mudhahhabi ma'rifata'yan'ulama'al-madhhab,entitledTawshlhal-

dib4j wa hilyat al-ibtihdj.10The numberof referencesto him in later

Malikifiqh-works atteststo his status as a juristandto his contribu-tions to theMaliki egal tradition.1' hepresentwork,Kitdbal-ibdnahfisihhat isqdtmc lamyajib minal-haddnah,was completedin the year975/1567, when al-Qarafiwas about thirty-fouryears old (in lunar

years, thirty-six).He died in theyear 1008/1599at the age of sixty-six

(sixty-nine unar).12

III. TheModusOperandi f the "Post-FormativeRegimeof Taqlid"

My use of the term "post-formative"s a reference to the period in

Muslimlegal historythat followed the so-called "settlingdown of the

9 See below.10

Ed. Ahmad al-Shitaywi(Beirut:Dar

al-Gharbal-Islami, 1403/1993).11 See, e.g., Ahmad al-Sawi (d. 1241/1825), Bulghat al-salik li aqrab al-

masalik, 2 vols. (Cairo: al-Maktabahal-Tijariyahal-Kubra,n.d.), 1:457, 2:91 and

passim.12 On al-Qarafi's biography, see Muhammad Amin Fadl Allah al-Muhibbi,

Khulisat al-athar fi a'ycn al-qarn al-hddl 'ashar, 4 vols. (Beirut: Maktabatal-

Khayyat, n.d.), 4:258-62.

30








schools of law" (istiqrdr al-madhdhib).13 The precise date of this

development, which conferred mutual recognition upon the four Sunni

schools, remains a point of disagreement. N.J. Coulson was of the

view that it occurred sometime around the end of the third/ninth

century,14 whereas J. Schacht held that the process did not reach its

consummation until sometime around 700/1300.15 Between these two

extremes, a number of scholars point to the end of the fifth/eleventh

century as the approximate date of the settling down of the four

schools. This was the conclusion, for example, of G. Makdisi16 and,

more recently, of C. Melchert.17 Makdisi observes that in his Tabaqat

al-fuqaha', which catalogues the names and school affiliations of

jurists whose legal pronouncements are to be considered in making and

precluding consensus, the fifth/eleventh century Shafi'i jurist, Abu Ishaqal-Shirazi (d. 476/1083) cites only the Hanafi, Maliki, Shafi'i, Hanbali,and Zahiri schools. The last member of the Zahiri school died in

Baghdad in the year 475/1082, which permanently reduced the number

of recognized Sunni schools to four.18 On this evidence, by "post-formative," I refer to the period beginning sometime around the end of

the sixth/twelfth century, following the settling down of the madhhabs.

The net effect of the settling down of the madhhabs would go

beyond the mere establishment of mutual recognition among the

schools of law. In this new phase, the madhhab would soon replace the

mujtahid as the primary19'unit of operation' in Islamic law. No longerwas the unfettered and independent ijtihdd of the individual mujtahid

sufficient to confer authority upon an opinion (at least not among the

community of jurists). Authority was now mediated through the

endorsement of the association of jurisconsults as a whole, i.e., the

madhhab. The madhhab now defined the parameters within which all

interpretive activity took place. Moreover, no school, as a general rule,

13 This phrase is used by al-Mawardi (d. 450/1058) in his Adab al-qa.dd',ed.

Muhyi Hilal Sirhan,2 vols. (Baghdad:al-IrshadPress, 1391/1971), 1:645,where itseems clear that it has long ceased to be a neologism

14 See A History of Islamic Law (Edinburgh:Edinburgh University Press), 7,89, but see also 86-89.

15 An Introductionto IslamicLaw (Oxford:ClarendonPress, 1964), 65, 67.16 See his The Rise of Colleges: Institutionsof Learning in Islam and the West

(Edinburgh:EdinburghUniversityPress, 1981),4.

17 "The Formationof the Sunni Schools of Law, Ninth-TenthCenturiesC.E."(Ph.D. dissertation,The Universityof Pennsylvania,1992), 338.

18 See Makdisi, Rise, 4-5.19 See Jackson, State, 77-78, where I explain that neither the regime of ijtihdd

nor that of taqlid exclusively preemptedactivity in the otherdirection.Rather,bothbecome dominanthegemoniesat various points in Muslimhistory.







SHERMANA. JACKSON

looked to any higher authority, e.g., the consensus (ijma') of the

Community, to validate its views. Indeed, the madhab became in effect

the highest legal authority in Islam, capable, in this capacity, of

independently validating its own views.

Concommitantly, taqlid, which I regard as a cognate of the Common

Law stare decisis,20 emerges as the dominant hegemony. It is through

taqlid that the madhhab was able to sustain itself and perpetuate school

doctrine and jurists became bound to the strictures and operating rules

of the "regime of taqlid'. By the time of al-Qarafi and Kitdb al-ibdnah,

this modus operandi had been in operation for centuries and was fullyconstitutive of the status-quo.

The cumulative stock of a madhhab under the regime of taqlld

consisted of views attributedto the eponym or early authorities within

the school and views that were extrapolated or deduced by subsequent

generations ostensibly on the basis thereof. Because of disparity in

narrationon the authority of the early authorities and differences in the

way in which subsequent scholars extrapolated from these views, there

came to exist a multiplicity of views within a school. Not all of these,

however, were of the same weight or status; some were more authorita-

tive than others. These preferred views came under two primary

designations: mashhtir and rdjih.21The mashhtir, generally speaking, implied numbers, i.e., the view

that enjoyed the greatest recognition within a school. It was, for all

intents and purposes, the "going opinion" of the school at any given

time, which all school members would have to recognize. The rtjih,

meanwhile, was more a result of the individual jurist's scrutiny, i.e., his

choice as an individual of one of the views from among those

competing for mashhuir tatus, or his considered opinion based on a

20 With a number of qualifications, of course, perhaps the most importantbeing that jurists, not simply judges, represent the madhhab and determine the"precedent"to which both jurists and judges are bound. It is also true that theobject of the jurists' contemplation is largely doctrine rather than courtroomverdicts. Yet, the jurists' discussion of overturning udicial rulings on substantive

grounds (naqd al-hukm) reveals the extent to which judges are bound by school

'precedents'. Perhapsthe proprietyof equating taqlid with stare decisis could betakenup in greaterdetail in a later installment.

21 See Jackson,State, 83-9. Many other terms are used to designate these sametwo

categories, e.g., al-mu'tamad, al-madhhab, 'alayhi al-fatwd, al-zahir,al-

ma'mul bihi, al-mukhtdr, al-sahih, al-sawdb, al-aqwd, al-azhar, al-ahsan. In hisRadd al-muhtdr, 1:70, the ninteenthcenturyHanafi jurist, Ibn 'Abidin, says thatwhere he finds a view of his predecessorsto be lacking, he will simply cite his oranotherview, following the expression,"so take note,"(fa'fham), which he says ismorerespectful.Cf., however, MohammadFadel, "TheSocial Logic of Taqltdandthe Rise of theMukhtasar,IslamicLaw and Society, 3:2 (1996): 193-233.

32








reconsideration of a matter in light of the primary sources (Qur'an,

Sunnah, etc.). This practice of selecting and nominating views was

commonly referredto as tarfih.

The existence and function of these two categories underscores an

important feature of the overall operation of the regime of taqlld,

namely, a certain tension that existed between the individual jurist and

the association of jurisconsults as a whole. In terms of the skills and

disciplines necessary to attain the rank of a recognized jurist, there was

no decline between the standards invoked under the regime of ijtihadand those recognized under the regime of taqlld. In fact, the qualifica-tions of a jurist under the regime of taqlld were actually more stringentthan those recognized by the early mujtahids.22 Yet, when it came to

professing his views on a particular legal issue, the post-formative

jurist had now to recognize the mashhur of the school at large. And

where he found his view to be at variance with the going opinion, he

had to find a way either to circumvent the incumbent view or to dis-

lodge it, e.g., by arguing that some other view was more deserving of

mashhur status, or that more jurists had actually endorsed a competing

view, or that there was in fact no "going opinion" on this particularissue and that some other source (e.g., custom, maslahah or judicial

practice) was dispositive of the matter.23All of this came under the

general rubric of the above-mentioned tarjih. As we shall see, it was a

common feature of the legal landscape in which al-Qarafi crafted his

fatwa.

IV. Some Relevant Features of the Maliki Law of Child-Custody

According to Maliki law,24 mothers have a preeminent right to custodyof their children, males up to the time they reach puberty or acquire the

ability to live on their own, females up to the time they marry.25This

22 Formoreon thispoint,see myState,45, 94-95.23 Forotherexamplesof howjuristsattemptedo circumvent r displace he

mashhur,eeJackson, tate,88.24 I shallrely in thissectionon Sahnunb. Sa'idal-Tanfkhid. 240/854),al-

Mudawwanahl-kubrd;Muhammadl-Hattabd. 953/1547),Mawdhib l-jallllisharhmukhtasarhalll,6 vols. (Libya:Maktabatl-Najah, .d);Ahmadal-Dardir

(d. 1201/1786), l-Sharh l-kabir onthemarginHdshiyat l-dusaqi);Muhammadal-Dusiqi (d. 1230/1815),Hidshiyat l-dusuqi 'ald al-sharh al-kabir,4 vols.(Beirut:Daral-Fikr,n.d.).This selectionof sourceswill provide s with a sense ofthepermanencyf theseruleswithin he Maliki chooloverseveral enturies othbeforeandafteral-Qarafi.

25 See SahnunMud., 2:244; 2:245; al-Hatt.b,Mawdhib, :214; al-Dusiqi,Hdshiyat, 2:526. This contrasts he positionof the Hanafischool,which also







SHERMAN A. JACKSON

applieseven in the case of non-Muslimmothersof Muslimchildren,26

though hesemothersmustnotbe knownfortrying o steer the children

away from Islam, in which case Muslim 'overseers' are to be dis-

patched.27 athers,meanwhile,remain inanciallyresponsible hrough-out the periodof custody,28he going opinion(mutatismutandis)even

obligingthemto reimbursemothers or the child's housing expenses.29Fathershavetherightto visit theirchildrenand to be affordedsufficientaccess to ensure that the latteraredisciplinedand that they receive a

proper education. And the mother's primary right to custody is

preservedonly as long as she and the fathermaintain heir residence nthe same city (or domicile). If eitherparentrelocates(with the aim of

changing his or her permanentresidence) such that the distance

between the child and the fatherwould deny the father reasonableaccess to the childwerethe child to remainwith themother, herightof

custodyreverts o thefather.30

Both parentsare subjectto a numberof general qualifications.For

example, they cannotbe mentallyimpaired,physically infirm,mute,blind or sufferfrom debilitatingor infectiousdiseases. They must beable to providea safe environment, speciallyforpubescentgirls, and

they musthave a modicum of respectfor the religious law, e.g., theycannotbe known for drinking,adulteryor illicit entertainment lahw

awards mothers primary custody but gives fathers automatic custody of boys ataround the age of seven and girls at puberty.See, e.g., Ibn al-Humam,Sharhfath

al-qadir,9 vols. (Cairo: Mustafa al-Babi

al-Halabi, 1389/1970), 4:371;Ibn

'Abidin, Radd al-muhtdr, 6:267-68. Based on my experience with Muslimcommunities in the U.S., it appears to be the common assumption that childrenmake a choice between their mother and father when they reach the age ofdistinction (tamyiz), usually set around seven years. This is consistent with theShafi'i position. (See Shams al-Din al-Ramli, Nihdyat al-muhtdj,7:231.) It is alsothe position of the Hanbalis regarding boys, girls automatically going to theirfathers at age seven. (See al-Mughni yallhi al-sharh al-kabir, 14 vols. (Beirut:Daral-Kutubal-'Ilmiyah,n.d.), 9:300-02.)

26 Mud., 2:245-46. At one point, Sahnin presses Ibn al-Qasim on this

question, protesting that a Jewish or Christian mother might serve her Muslimchildrenpork or wine. To this Ibn al-Qasim replies that she could have done this

during the time she was married to their father. Ibid. The Hanafis are in basic

agreementwith the Malikis (Ibn al-Humam,Sharh,4:372;Radd al-muhtdr,6:253-54). The Shafi'is, meanwhile, and like them the Hanbalis, do not allow non-Muslim mothers to assume custody of Muslim children. For the Shafi'i position,see al-Ramli, Nihdyat, 7:229. For the Hanbalis, see Ibn Qudamah, al-Mughni,10:120-21.

27 Mud., 2:246. A premodernMuslimcounterparto Child Protective Services?28 Mud., 2:245; al-Hattab, Mawdhib, 4:214; al-Dardir, Sharh, 2:526; al-

Dusfqi, Hdshiyat, 2:526.29 Mud., 2:247; al-Hattab, Mawdhib, 4:220; al-Dardir, Sharh, 2:533; al-

Dusiqi, Hdshiyat,2:533.30 Mud., 2:245; al-Dardir,Sharh, 2:531; al-Dusuqi,Hdshiyat, 2:531.

34







POST-FORMATIVE URISPRUDENCEBETWEENEXIGENCY AND LAW 35

muharram). Finally, they must be financially responsible to the extent

that the child would not be subject to unnecessary harm.31

The sequential order of custodians does not run from mother to

father. In the event that a mother should die or be disqualified for some

other reason, custody of her child would pass to her mother (i.e., the

child's maternal grandmother).32According to the Mudawwanah, after

the maternal grandmother, custody passes to the child's maternal great-

grandmother, then the maternal aunt, the paternal grandmother and

only then to the father.33Later Maliki tradition would modify this order

only by placing additional female intermediaries between the child and

the father. By the time we get to al-Dardir, in the eighteenth century, at

least three additional female custodians have been interpolated between

the maternal aunt and the father.34There were, of course, a number of

possible exceptions to this order.For example, if a daughter reaches the

age of marriage and her mother is either unwilling or unable to act in a

way that ensures the girl's integrity, the father may assume custody.35

Generally speaking, however, the Maliki madhhab evinced a clear bias

in favor of female relatives of a child.36

This bias in favor of women finds its justification in the Maliki

insistence that tenderheartedness (hanan) and loving care (shafaqah)are primary considerations in child-custody cases. Since women are

believed to possess these qualities to a degree far greater than do men,women are given primary consideration.37 So central are tender-

heartedness and loving care to the question of who gains custody of a

child that al-Dardir and al-Dusuqi insist (apparently as the mashhlur

opinion) that custodial fathers must be able to provide female

31 al-Hattab, Mawdhib, 4:216-17; al-Dardir, Sharh, 2:528-29; al-Dusuqi,Hdshiyat,2:528-29. Cf. Esposito,Women,37; "A woman loses custodyof her childat any age if her behavior is immoral or if she gives the child poor care". Such astatement gives the false impression that standards of morality and competenceapply to women but not to men. Meanwhile, even in the Hanafi madhhab, onwhich Esposito's study is based, men, includingfathers,are subjectto disqualifica-tion if the child is likely to suffer in their care. See, e.g., Ibn 'Abidin, Radd al-muhtdr,6:270.

32 The above cited rule governing changesin domicile is an exception, albeit aratherawkwardone.

33 Mud., 2:245.34 al-Dardir,al-Sharh al-kabir,2:257.35 Mud., 2:244.36 This is generally true of all the schools as regards the order of child

custodians. It was only one (presumably weak) narration on the authority ofAhmad b. Hanbal that led an apparentminoritywithin the Hanbali school to placethe fatherdirectlyafterthe mother.See al-Mughni,10:118, 10:120.

37 Sharh, 2:529. According to al-Dardir,"Mensimply do not have the patiencethatwomen have when it comes to dealing with children". bid.







SHERMANA. JACKSON

supervision, n the personof a wife, a sister or even a governess.38Buta fatherhadto be able to show that he couldprovidesuch supervision;otherwisehe forfeitedhisrightto custody.

By far the mostimportantequirement lacedon mothers at least in

the presentcontext)hadto do with theirmaritalstatus.A divorced or

widowed mother retained the right to custody only as long as she

remainedunmarried. f she remarried, he forfeitedthatright.39n the

early period (still post-formative),the reason for this ban appearsto

have been the fear that the new husbandwould be negatively predis-

posed to the child. Ibn Rushd the Elder (d. 520/1126), for example,states that if the mother'snew husband s relatedto the child (e.g., a

cousin)herremarriagewouldnot be a cause for herto forfeitcustody.40The husband's blood relationshipto the child, in otherwords, is as-sumed to preemptany possibilityof neglector abuseon his part.Later

sources, however, give the primaryreason as being the fear that the

child would sufferneglectdue to the mother'spreoccupationwith her

new husband.41 hey cite a numberof impediments o the applicationof thisrule,e.g., if the mother emarries omeonerelated o the child,or

if the childwill not nurseat thebreastof anyoneotherthan the mother,or if the father(or otherrelative)waits longerthana year to claimhis

right to custody.42 Barring such circumstances as these, this rule

remained n force. Even if, subsequent o her new marriage,he mother

is divorced orwidowed, herrightto custodyis not reinstated.43Malik

justifiedthis latterruleby pointingoutthatthe childwouldlikely suffer

fromthe instability nhering n thepossibilityof themotherremarryinganddivorcingad infinitum.44aterMaliki sourcesappear o add little to

thisjustification.This ruleretainedmashhur tatuswithinthe madhhab

for the betterpart, f notthewhole,of thepremodemperiod.45

38 Al-Dardir, Sharh, 2:529; al-Dusiqi, Hdshiyah, 2:529. Though my focus hasbeen on fathers (the issue with which al-Qarafi will be dealing), this stipulationapplied to all male custodians,not just fathers.

9 Mud., 2:244.40

Muqaddimdtbn rushd(on the marginof al-Mudawwanah), 2:261.41 Al-Dardir, Sharh, 2:529; al-Dusuqi, Hdshiyah,2:529.42 Al-Dardir,Sharh, 2:529-30.43 Mud., 2:244. See also, al-Dardir,Sharh, 2:534; al-Dusfqi, .Hdshiyah, :534.

The Hanafis and Shafi'is, meanwhile,have a differentposition, insisting that if the

mother is divorcedfrom her new husband or the latterdies,her

right to custodyis

immediately reinstated. The Shafi'is go to the point of insisting that if the mother'snew husband(who has just divorcedher) agrees, the child returns to his mother'shome during her 'iddah. See Shams al-Din al-Ramli, Nihdyat al-Muhtdj, 7:231;Ibn al-Humam,Sharh ath al-qadir, 4:370.

44 Mud., 2:244.45 Al-Qarafi cites a few dissenters to this view, such as al-Mughirah b. 'Abd

36








V. al-Qardfi'sFatwa

a. A Tacit 'Plea-Bargain'

We turnnow to al-Qarafi'sfatwa.Prior to engaginghis opponentson

thelegal questionproper,al-Qarafidigresses n his openingsegmentto

offer whatI taketo have constituteda tacit 'plea-bargain'of sorts.His

remarks n thisregardprovidesome interesting nsightsinto the social

contextwithinwhichhe craftedhisfatwd.Al-Qarafibegins with the question of whethercustody (haqq al-

haddnah) is a rightthataccruesto the mother(al-hddinah) or to the

child (al-mahdun). The relevance of this question is at first blush

difficult to detect, since, on either assumption,as al-Qarafihimself

acknowledges,the childwould end up with the mother.But al-Qarafi

goes on to explainthat some Malikiauthorities,e.g., Ibn al-Majishun(d. 212/827), reasoned hat sincecustodyis reallythe rightof the child

(notthe mother), hefather s obligatedboth to compensate he mother

for caringfor the child and to reimburseher for the child's housing

expenses.46Now, al-Qarafidoes not want to be identifiedwith thefull

scopeof Ibnal-Majishun'sposition-lest he be brandedan advocateof

exteme and irregularviews.47But he does want to press the issue of

reimbursementor housing expenses. To this end, he cites no less an

authority han Khalilb. Ishaq(authorof the authoritativeMukhtasar)to the effect that though the going opinion of the school was that

custodyis therightof the mother as opposedto thatof the child), it is

also the going opinionthatfathersareobligatedto reimbursemothersfor housingexpenses.48Now, thepointin all of this seems to me to be

as follows. Fathers in tenth/sixteenthcenturyCairo, as a matter of

custom-and probablyout of ignorance-never reimbursed heir ex-

wives for theirchildrens'housing expenses.Al-Qarafi,however,wants

al-Rahmanal-Makhzimi, IbnDinar and Ibn Abi Hazim.Ibdnah,83.46 As stated above, the mashir opinionin the Maliki school, going all the way

back to Malik, was that fathers are responsible for their childrens' housing ex-

penses, later scholarsgenerally arguingthat such expenses are to be sharedbetweenthe two parents(see, e.g., al-Dardir,Sharh, 2:533). On the questionof remunerat-

ing mothers for the actual care of the child, the majority held that they were notentitled to any money. See al-Dardir,Sharh, 2:534; al-Dusuqi,Hdshiyat,2:534.

47 'Abd al-Malik Ibn al-Majishun was known to have held extreme and

irregular views on a number of issues. For example, he held that a man couldmarryhis daughterif she issued from an act of adulteryor fornication (al-zind),because, according to him, she was legally not his daughter See Abf Bakr al-Kishnawi,Ashal al-masdliksharh irshddal-slik ffiqh imamal-a'immahmdlik,3vols. (Cairo: 'isa al-Halabi,n.d.), 2:78-79. This, incidentally,is also said to be theview of al-Shafi'i.

48 Ibdnah, 39, 41.







SHERMANA. JACKSON

to remind hem that therearegrounds orholdingthem egallyrespons-ible for doing so and that, as such, they should not antagonize their

formerspouses-by threatening o take their children-lest the latter

reciprocatewith a demandfor paymentfor housing expenses (which

judge Badr al-Din al-Qarafiwould duly recognize and enforce). In

other words, al-Qarafi's opening statement is a tacit appeal to the

fathers n question o droptheirpetitions orcustodyof theirchildren n

exchangefor theirex-wives' non-pursuit f reimbursementorhousingcosts.

The fact that fathers-and apparentlymothersas well-in tenth/sixteenthcenturyCairowereunawareof theirobligation o remunerate

their ex-wives for housing their children raises some interesting

questions about the effectiveness of the mechanismsrelied upon for

disseminatingknowledgeof the law in Muslim society. (We will see

another nstanceof this in connectionwith the issue of the sequentialorderof custodians.) While a full treatmentof such questions falls

outsidethe scope of the presentstudy,the fact that both mothers and

fathers in this case appearto have been ignorantof this fundamental

(andas it turnsout,universallyagreedupon[mujma'alayh])provisionraises an interestingpoint aboutthe oft-debated ssue of the disparitybetween the doctrine and practice of Islamic law. What we are

remindedof in the presentcase is thatwhile disparitybetween doctrineand practice can be the result of a society's lack of commitmentto

applyingthe law it can also be due to a simple lack of educationand

thefact thatknowledgeof someof the more intricatedetails of the lawis limited to specialists.The more sophisticateda legal system is, the

morelikely the latter s to be a factorcontributingo disparitybetween

doctrine and practice, especially in situations such as that of pre-modern Islam, where the intricacy and sophistication of the legalsystemfar outstrippedhe scope andavailabilityof generaleducation.This is not to suggest that ignorance tells the whole story and that

corruption,disregard or the law or psychologicalattachment o alien

legal norms haveno placein thediscussion. It is to suggest,rather, hatwe be clearaboutwhat we aretalkingaboutwhenwe speakof the dis-

paritybetweendoctrine andpracticeand that we considerall possibleexplanationsfor this phenomenon,which is by no means limited to

Islamic law.49

49 In the city of Ypsilanti, whose city-limit begins literally three blocks fromwhere I live in Ann Arbor,juvenile curfew laws are frequentlyviolated by youthfrom Ann Arbor.This is not because Ann Arboryouth have no regardfor the law.

38









SHERMANA. JACKSON

campaign, which leads to the following declaration near the end of the

fatwd:

In conclusional-khdtimah),e maysayin summaryhatcustody stherightof the custodial arentnot hechild],accordingo thegoingopinion mashhur) f the madhhab,andthat[thebindingness f an

agreement]o forfeitprematurely contingent ightis a matterof

disagreementmukhtalaffih)i.e.,within he madhhab]and thatthe

fatwd customarily given (alladhi 'alayhi 'l-fatwd) and the positioncustomarilyakenbythecourtsal-'amal)egardinghequestion nderreview,namely,forfeitureby a potentialcustodianof his right to

custodybeforethatrightaccrues o him, is [thatsuch forfeitures]binding.50

1."Isqdtal-HaqqQablaWujubih"The above conclusion could be reached only after al-Qarafi had

successfullyconfrontedandovercomeat least two doctrinalobstacles

withinthemadhhab.The first,andby far the mostformidable,was the

aforementionedegal precept qd'idah)governingprematureorfeiture

of contingent (as opposed to vested) rights (isqdt al-haqq qabla

wujuibih).According to this rule, a person could not forfeit or give

away a right before that right had actually accrued to him. In the

presentcase, this meant thatthe fathersin questionare not boundbytheir nitialagreementsbecause theseagreements ntailed he forfeiture

of rights that were contingent upon occurences that have not yet

transpired.n other

words,the father's

rightto

custodyis

contingentupon his former wife's remarriage,which had not yet occured at the

time he agreedto forego custody.As such, the rightto forfeiturehad

not yet accrued to him and it was thus not his to give away. This

renderedany such act of forfeitureon his partnull andvoid. This wasthe argument dducedby al-Qarafi'sopponents,a positionbolsteredbythe fact thata numberof prominent,nearcontemporaryeaderswithin

themadhhabhadendorsed his view as the mashhur.51

Partof al-Qarafi'sproblemresided n thefact thatthe legal precept,

isqat al-haqq qabla wujubih, nitiallyhad been invoked in supportof

mothersin child-custodydisputes.In his commentaryon Mukhtasar

khalll, al-Qarafi'soldercontemporary,Muhammadal-Hattab d. 953/

1547), cites thisprecept

as the basis fordemanding

that a woman's

children be returnedto her in cases of khul', if her husband had

50 Ibanah,98.51 Ibid.,43ff.

40








demanded custody as a partial payment in exchange for releasing her

from their marriage. Since, the argument ran, custody was not the

mother's right to forfeit while the couple were still married, this

forfeiture was not enforceable after the couple had parted.52 Now,

however, circumstances had changed, and the consistent application of

this once 'female-friendly' precept was yielding results detrimental to

women. Indeed, this same precept was being invoked to deny mothers

the right to retain prematurely forfeited custody of their children. In

order to succeed in his mission, al-Qarafi would have to find a wayaround this precept (or at least his opponents' application of it) without

giving the appearance of going against the traditionof his school.

2. Confronting the Claimed Mashhfr of the Madhhab

Al-Qarafi's first order of business was to confront his opponents'claim regarding the proper application of the rule governing prematureforfeiture of contingent rights. He prefaces his campaign by acknow-

ledging that the question under review falls within the scope of this

precept. He cites several well-known questions (masa'il/sg. mas'alah)

in the madhhab that have been treated under its provisions. Then, in

order to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else, he quotes the text of a mnemonic

'poem' by the ninth/fifteenth century Maliki jurist, Abu Bakr al-Dama-

mini (d. 827/1425). Al-Damamini's poem represents an important

genre53 about which I am not prepared to say much beyond the

suggestion that these 'poems' were used as school-texts that studentsmemorized on theirway to becoming jurists. They could be written by a

master54 or by some lesser jurisconsult within the school and then

ratified by a master. Once completed, however, these mnemonic poems

appear to have served the dual function of: (1) settling inter-school dis-

agreement; and (2) providing studentswith an easy tool for memorizingwhat had become the mashhiur or school doctrine as a result of the

cumulative discourse within the madhhab. These precis would be

updated from time to time, as old mashhurs were displaced by new

ones. But until such time that a master (or a protege) took up the task of

revision, an incumbent poem would generally be assumed to carry the

52 Mawahib, 4:218.53 These 'poems' appear to be a later development. This genre deserves,

however, an in-depth study, in terms of its history, its function and its impact onthe course of legal education andpractice.

54 On informal ranks within the madhhab and its function, see my State, 89-99.







SHERMANA. JACKSON

weight of school-doctrineandreflectedthe views to which all schoolmemberswould be expected o payhomage.

Now, al-Damimini'spoemincluded he acknowledgmenthat there

was disagreementwithin the madhhabover the preciseapplicationof

the rulegoverningprematureorfeiture f contingent ights,somerights

being generally recognized as being forfeitable even before theyaccrued.55 t had been al-Damamini's ntent,however, to resolve this

disagreementand to establish what was to be accepted as the going

opinionof the school. To this end his poem includeda list of all those

instances n whichforfeitureprior o maturitywas notenforceable.The

ninth ine of his poemreads:

The forfeiterof theright

ofcustody

before t accruesThis is theruling[i.e., that t is notenforceable]so beware of the claims of prevaricators(wa musqituhaqqin i'l-haddnati amyajib;kadhdhukmuhufa'hdharmaqdlatadfik)56

Al-Qaraficited al-Damamini'spoemon the authority f Muh.ammad.

Ibrahimal-Tata'i,himselfa chiefjudgewho diedin theyear942/1535.Not onlyhad al-Tata'ibeena leadingauthorityn the Malikischool but

his proximity o al-Qarafi'sgenerationmade it virtually mpossibleto

ignorehis endorsement.Al-Qarafi's ocution ntimates hathe perceivedal-Tatai'ito be a far greater hreat hanal-Damamini,a fact most pro-

minentlyreflectedin some of the rather rreverent riticismshe directs

towards al-Tata'i.57Part of the reason behindthis attitude owardsal-

Tata'iappears o be that,in addition o citing al-Damamini'spoem in

supportof the view that premature orfeitureof contingentcustody-

rights was unenforceable,al-Tata'i had cited anotherpoem on the

authority of another Maliki jurist, Jamal al-Din al-Aqfahsi (d.

823/1420),which al-Tata'iclaimedwas thedefinitivesummation f the

position of the Maliki school at large. This connoted an ersatz

unanimity hat furthercomplicatedmatters or al-Qarafi. n al-TataT''s

poemwe readthefollowing:

55 The two best-knowncases arepaying obligatory

alms(zakdt)

before the turnof the full-yearcycle (hawl) and expiatingfor oaths before they have actuallybeenbroken.On these two see Ibdnah,65-67; al-Shatibi,al-Muwdfaqdtz,:269ff.

56 Ibdnah,44. Though negation of enforceabilitydoes appearfrom the segmentquoted,this is clearly establishedby the context set by the previousverses.

57 At one point, for example, he points out glibbly that a part of al-Tatai'i's

poem is redundant,referring o it in a ratherhostile tone as "hashw". Ibid., 45.

42







POST-FORMATIVEURISPRUDENCEETWEEN XIGENCY NDLAW 43

The going opinionregardingall of thesequestionsIs thatprematureorfeitures notenforceable,so take thepositionof M*lik

('ald anna mashhural-masa'ilikullihd

suqutu uzuminfa'tamid awlaMdlik)

Al-Tata'i had been a towering figure within the Maliki school. Throughthe likes of him, al-Damamini and al-Aqfahsi, the cumulative positionof the Maliki madhhab on the correct application of the rule governing

prematureforfeiture of contingent rights had crystalized into a veritable

consensus that would provide al-Qarafi's opponents with a solid basis

for denying the mothers in the present dispute the right to retain custodyof their children. The view of his opponents was clearly incumbent, and

it carried the immoveable authority of the madhhab at large. It was

here, in the face of this formidable reality, that al-Qarafi would have to

dig in and mount his counter-offensive. He proceeded by first

disassembling the position of the madhhab and then reconstructing a

new position, which he fortified throughvertical and horizontal appealsto other recognized sources and authorities within the madhhab.

3. Al-Qardfi's Counter

Al-Qarafi began his counter-offensive by insisting that the position of

al-Aqfahsi and al-Tata'i was an overgeneralization that failed to take

into account known exceptions to the general application of the rule on

premature forfeiture of contingent rights. Pursuant to proving this

charge, he catalogues, in verse and then commentary, some thirty

questions in the Maliki school on which there is standing disagreementover the application of this rule, or on which the mashhur is actuallythat premature forfeiture of a contingent right is enforceable. Al-

Qarafi's list includes the following:1. a relative forfeiting the right to preemption (shuf'ah) before the

actual sale

2. an heir forfeiting the right to inheritance while the testator is still

alive

3. implementing a testator's bequest (wasiyah) while the latter is still

alive

4. a testator making a deathbed bequest with the other heirs'

permission5. a wife giving up days to a co-wife

6. a female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband







SHERMANA. JACKSON

7. a man stating to his wife: If I take an additional wife, you maychoose to stay or not

8. forfeiting the right to custody before it matures

9. a person's stating to another:If you kill me, you are pardoned10. a wife forfeiting her right to future maintenance by her husband

11. a woman forfeiting her bride-price before consummating the

marriage12. a personpardoninganother or inflictingwounds before they are

inflicted

13. setting aside one among a numberof conditionsmentionedin a

contract

14. a wife reversingabsolutionof herhusband'spromisenot to marry

withoutherpermission15. a testatorgoingbackon a bequest waslyah)beforedying16. refusing a bequest duringa testator's life and then returningto

claim it afterhis death

17. a blood-relativepardoninga (potential)murderer efore the actual

murder

18. pardoninga slandererqcdhif)beforehe actuallyslanders

19. expiatingfor brokenoathsbeforetheyareactuallybroken

20. payingobligatoryalmsbeforethecompletionof the full-yearcycle

(hawl)21. a buyer or debtorrelieving a seller or creditorof taking oaths in

court n the eventof a dispute

22. a master reeinga slave-girlon the condition hatshe marryhim23. a buyerforfeitingwarranty ightsat timeof sale

24. a buyer orfeiting"actsof God(jd'ihah)" iabilityprotectionattime

of contract

25. a buyerforfeiting herightto a three-daywarrantyon slaves)26. a creditordelaying acceptanceof paymentby a guarantorkafil)27. a creditor efusing iabilityforcollateral eft in his possession28. a borrowere.g., of utensils)refusing o accept iabilityforthem

29. a craftsman refusing to accept liability for goods left in his

possession30. a transporterinsisting on being absolved of liability before

delivery

All of theseexamplesbearon theissueof forfeitingcontingent ightsbefore they have accrued. Take, for example, #29. A craftsman's

(sani') refusal at the time of contract to accept liability for a good left in

his possession entails the propertyowner's forfeitureof the right to

44








liability protectionbeforethatrighthas accruedto him. UnderMaliki

law, craftsmen are bound by an implicit, automatic stipulation of

liabilityfor any damageto goods left in theirpossession. A customer

may forfeit this rightafter any damagehas occurredandafter he has

accepted heoriginalrightto liability protectionas an impliedwarrantyinherentn thecontract.Butwhetherhe canforfeit hatrightbeforesuch

timewas a pointof disagreement, learly indicating hat therehad been

different onstructions f theprecept,"isqatal-haqqqabla wujubih".

Again, al-Qarafi's aim in citing these examples was to free his

audience rom theclutchesof the claimby al-Tata'i,al-Aqfahsiand al-

Damamini o theeffect thatthe mashhuirf themadhhab upportedhe

position of the fathersin the present dispute.The first nine of these

entriesareactually aken rom thepoemof al-Damamini.n the case ofall nine, al-Qarafiadducesevidence to provethattherewas a standing

disagreementkhildf)withinthemadhhab.Thenext fourexamples(#10

through #13) are from the poem by al-Tata'i. Here too al-Qarafi

providesevidenceto the effect thatevery singleone of these questionswas a pointof disagreement.Theremainingseventeenspecimens(#14

through#30) are all al-Qarafi's own. Here, however, his aim is to

move beyond the simple claim that there is disagreement in the

madhhab o establishthe fact thatin a significantnumberof cases the

madhhabactuallyholds premature orfeitureto be both bindingand

enforceable.Interestingly,none of al-Qarafi'sspecimens(#14 through#30) are claimed to be the objectof school-consensus. Some of these

questions apparently generated very little discussion within themadhhab andare thusdisposedof in just a few lines.58The majority,however,were vigorouslydisputed,andal-Qarafi s forcedto makea

substantial nvestmentn tarjih(declaringa view to be rdjih) n order o

advantageheview thatrecognizesprematureorfeiture.

In executinghis tarjih, al-Qarafishows himself to be a clever and

hard-nosedadvocatewho understandsnot only the legal but also the

psychologicaldimensions of his craft.In a numberof these examples,he argueshis pointvia the tacitpropositionhat f one wishes to hold to

a strict prohibitionof all acts of premature orfeitureof contingent

rights,one will have to relinquisha numberof valuableoptions that

one presentlyenjoys.Some of theseoptionsaresensitiveand emotion-

ally charged.Indeed,one gets the sense thatthisappealto emotionandpersonal nterestwas integral o al-Qarafi's trategyoverall.

58 See, e.g., Ibanah, 64, 65.







SHERMANA. JACKSON

The clearest example of al-Qarafi's two-pronged, legal-psycho-

logical approach s the fourteenthandlongest of his thirtyspecimens.This example treats the matter of a man who has included in his

marriagecontracta stipulation(shart) to the effect that if he takes an

additionalwife, his presentwife has the rightto initiatea divorce.At

somepoint,however,prior to his takingan additionalwife, his presentwife voluntarily orfeitsher contingentrightto divorce.When, subse-

quently, her husbandactually takes an additionalwife, the questionariseswhether he firstwife canrevokeher earlier orfeitureandreturn

to theoriginalstipulationhatempoweredherto terminatehemarriage.Now, this question falls under the same preceptas the question of

husbandsgoing back on theirchild-custody agreements.In this case,

thewoman'srightto terminatehemarriagedoes notaccrue o heruntilherhusbandactually akeson an additionalwife. Therefore,herforfeit-

ure of thatrightprior to his additionalmarriageconstitutesa case of

isqat al-haqq qabla wujibih. Now, as far as the legal issue goes, al-

Qarafiindicates that this questionhad been disputed(mukhtalaffih)within the madhhab,severalearlyauthorities, .g., Ashhab,IbnHabib

and Sahnunupholdingthe woman's rightto go backon her initial act

of forfeiture.59 hisI take,however,to be little morethan a scare-tactic

on al-Qarafi'spartdesigned to send the message that if he wants to

uphold he woman'srightto initiatedivorce,there s ampleprecedentn

the madhhab to supporthim. The opposite opinion, however, was

supported by the likes of Malik, Ibn al-Qasim, al-Mutayyiti (d.

570/1174), Ibn 'Arafah(d. 803/1401) and Ibn Rushd the Elder,all ofwhom held that the woman was boundby her act of forfeiture.60 his

latterpositionwas also adoptedby the elder contemporary,he greatNasir al-Din al-Laqqani d. 958/1551), whose statusamongcontempo-raryMaliki urists s reflected n al-Qarafi'sreference o himas "shaykh

shuyukhindtheteacherof ourteachers)".61 l-Laqqani'sendorsement,

along with that of Malik, Ibn al-Qasim and those who joined them,would make clean work of al-Qarafi'seffort to sustainthis positionas

the mashhtir(which is why I say thathis citing the first positionwas

merely a scare-tactic).On another evel, however, it could hardlybe

lost on al-Qarafi hatmostmenin his society,giventheirconcupiscibleinterests,wouldbe inclinedto hold the womanin question o heract of

59 Ibid., 59-60.60 Ibid., 60-61.61

Ibid., 60.

46








forfeiture,whichwoulddenyher therightto terminatehermarriagenthe event that her husbandtook on an additionalwife. In orderto do

this, however, these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature.This,needless to say, putsthemexactlywhereal-Qarafiwants

them, since it breaks the necessity of a strict application of the

premature-forfeitureule. In theend,al-Qarafis able toachievevictoryon both the legal and the psychologicalfronts.Psychologically,he isable to drawhis male colleagues into identifyingwith his line of legalreasoning.Legally, he is able to establishthe proprietyof this reason-

ingby linking t to unimpeachableuthoritieswithin theMalikischool.

4. RemarriedMothersand theSequentialOrderof CustodiansFollowinghis treatment f thethirtyexampleshe cites,al-Qarafimoveson to the second doctrinal obstacle in the Maliki school, namely, therulethatdivorcedor widowed womenforfeit heirrightto custodyuponenteringinto a new marriage.Here again, al-Qarafiaccepts the rule,but goes on to arguethat it does not give the husbands n questionthe

righttheyclaim.His discussionhereis, again,interestingor thelightit

possiblysheds on the social situation n tenth/sixteenthenturyCairo.It

suggests thatwith regardto certainaspectsof child-custody,popularnotions of proprietycontrastedsharplywith universallyagreed-upon(mujma' alayh)rules of law.

As indicatedabove,the standard osition n the Malikischool is that

while mothersarefirst in line amongthose who havea rightto custody,they arenot succeededin this position by fathers.Rather, f a mother

dies, becomesunqualified,or remarries,custody passesto hermother.From here it passes to her grandmother,her great grandmother,her

sister,the child's paternalgrandmother, nd only thenthe ather Thiswas the sequenceendorsedby Malikin theMudawwanah.LaterMalikilaw modifiedthis orderonly to theextent of placingadditionalfemaleintermediariesbetweenthe child and the father. No one in the schoolhad ever heldthatthe fathercomesimmediatelyafterthemother. n the

presentcontext,this had two importantmplications.First,even if themotheris disqualifiedby reason of remarriage, he right to custodydoes not pass to the father.Second,the maximuma fathercanbargain

away throughany custodyagreement s his own rightto custody.Therightof those priorto him (thoughafterthe mother) n successionarenot affected by his agreement.In other words, even if his right torevokehis initialagreements recognized, his does notdeliverthe child







SHERMANA. JACKSON

into his custody.62It is interesting that during the course of thisdiscussional-Qarafi ntimatesthatthere is a fair amountof ignorance

amongwomen-and men-regarding the sequenceof child-custodians.

Widows anddivorced mothersroutinelyfall victim to the assumptionthat theirremarriagegives their ex-husbands the rightto custody.Al-

Qarafisets out to reversethis errorby arguingthatignorance n these

instances s a validexcuse andthat thegrandmother,r whoeverelse is

next in line, has the right to come forth and demandcustody of the

child.63

5. CustomandJudicialPracticeDispositive

Having successfully dissectedthe two main doctrinalobstacles in the

Maliki school, al-Qarafiis now ready to reassemblethe various bitsandpieces of themadhhabntoa new conclusion.Thegluewithwhich

his new synthesis is to be held together is legally sanctioned local

customandjudicial practice.These are the objectof his discussion in

the final segment of Kitdb al-ibdnah. Again, al-Qarafi's mannerof

proceeding clearlyreflects the strictures mposeduponhim as a jurist

operating under the regime of taqlid. Rather than risk losing his

audience by stating directly that the position of his opponents on

prematureorfeiture s wrong,al-Qarafi implysets out to establishhis

view as a viable alternative,which, when consideredin the light of

additionalprobativeevidence, deserves to be given precedence n the

presentdispute. Havingcreateda psychologicalspace in the mindsof

his opponents hroughhis masterfuldissection of the claimedmashhur,al-Qarafi can now insert his new conclusion and secure it throughcarefulappealsto local custom andjudicial precedentsestablishedbyseveralprominent uthoritiesn theMaliki school.In the end,he is able

to championhis interpretationf the rulegoverningprematureorfeiture

of contingent ightswithoutgivingtheappearance f havingviolatedin

any way thedoctrineof his school.

Al-Qarafi argues that whenever there is a standing controversywithin the school, it is legitimateto rely upon judicial practiceas the

decidingfactor.Evenwhereone of the competingviews is acceptedas

the mashhur, udicialpractice('amal)may be legitimatelyreliedupon

62 There was apparentlysome minor disagreementwithin the school on this

point. A certaingroupof "Qayrawanids,"or example, held thata mother's forfeit-ure extended to the right of her mother and all who followed the latter,deliveringthe child into the custodyof the father.Ibid., 87.

63Ibid., 91.

48







POST-FORMATIVEURISPRUDENCEETWEEN XIGENCY ND LAW 49

to tip the balance in the opposite direction.64 This is all the more

applicable in the present dispute, since the present controversy had been

disputed (mukhtalaffih) in the madhhab, while the normal procedure

('amal) of the (Maliki?) courts in Cairo was to recognize and enforce a

father's premature agreement to forfeit custody.65 This action by the

courts, al-Qarafi insists, was justified by the fact that a number of

authorities, e.g., Abu Bakr b. al-'Arabi (d. 543/1148), Ibn Rushd the

Elder and others- presumably in their capacity as judges-

occasionally diverged from the mashhir, whereupon their views were

subsequently adopted and applied by the courts.66 He ends his

discussion by insisting that judicial rulings should always seek to

promote the broader interests of the community at large, and, where

possible, they should respect legally sanctioned local custom. This viewhe traces back to his namesake, the great Shihab al-Din al-Qarafi, who

died in 684/1285.

VII. Conclusion

Al-Qarafi's manner of proceding in Kitdb al-ibdnahfi sihhat isqat md

lam yajib min al-haddnah suggests a number of things about the social

context in which he operated as a judge and jurist, as well as the state

of Islamic legal science during his time. His treatment of the issue of

reimbursement for housing expenses and the sequential order of cus-

todians is a clear testimony to the dissonance that existed between the

doctrines of the jurists and the reality of the common people. Hisreliance, meanwhile, on school doctrine as opposed to the Qur'an,Sunnah and usal al-fiqh, clearly shows that legal scaffolding, as

opposed to ijtihdd in the proper sense,67 was the modus operandi of

jurists in his time. The ultimate aim behind the crafting of afatwa was

not simply to introduce new and innovative ideas but to gain the

backing of the school at large. Moreover, al-Qarafi's manner of pro-

ceeding clearly demonstrates that, unlike modem, secular legislaturesthat are empowered to rescind and introduce law at will, when faced

64 Ibid., 99.65 Ibid., 81.66 Ibid. 102.67 Again, I considerijtihddproperto be the interpretationof scripture directly

with no intermediateauthorities standing between the sources and the individual

jurist. I do not consider to be ijtihdd the applicationof the tools of usul al-fiqh to

anything other than scripture.Thus, when a jurist applies the rules of qiyds, for

example, or takhsis al-'dmmto the madhhab of an Imam, this does not constitue

ijtihddin the propersense. See furthermy "Taqlid,Legal Scaffolding,"167, nt. 5.







SHERMANA. JACKSON

with new circumstancesor rules that no longer serve theiroriginallycontemplated function, Muslim jurists were powerless to abolish

existing law. Instead they had to look for ways to circumvent it or

mitigateits morestultifyingeffects.68This, again,was one of the main

functionsof taqlid-legalscaffolding.Here,however, t should be noted,

especially given al-Qarafi'sposition and performance n the presentdispute,that the tendencyto associate such categoriesas "liberal"or

"progressive"with ijtihad and "conservative"or even "patriarchal"with taqlid is not only unwarrantedbut dangerously misleading.

Finally,it is notalwayspossibleto tell, i.e., througha "common-sense"

or"plain" eadingof a rule,what theoutcomeof a legal disputeamongjuristswill be. The presentdispute clearlydemonstrateshow one rule,

isqat al-haqq qabla wujubih,could be relied upon to yield mutuallyexclusiveconclusions(e.g., betweenal-Qarafiand his opponentswithin

the Maliki school). What this suggests is that in additionto sources,

principlesandprecepts, he outcomeof legal deliberations re informed

by the manner in which these are all invoked and applied. And this

applications neitherdictatednorgovernedby themethodology aid outin the books of usul al-fiqh or qawd'id. There is, in other words, a

significant element of legal deliberation that is brought to it from

outside the sanctum of legal science proper, namely, the presup-

positions, goals, fears and aspirations of individual jurists, which

themselvesreflectsomethingabout hesocietiesin whichthey live. It isthus not simply logic thatgoverns egal contemplation utexigencyand

practicality s well.69It is not possible at present o tell whetheral-Qarafiwas successful

in his attempt o retaincustodyfor the divorced mothers n the presentdispute. Based on subsequentMaliki manuals,his argumentsdo not

appear o have hadany permanent ffect on school doctrine.His older

contemporary, for example, Muhammad al-Hattab (d. 953/1547)

clearlyindicated(in dealingwith the khul'-for-custody ontroversy)70that the mashhur of the madhhab was that premature orfeiture of

contingentrightswas not binding.71Ahmad al-Dardirwould cite thesameopinionin the eighteenthcentury.72And Muhammadal-Dusuqi,

68 See Jackson, State, 98ff.69 For more on this

point,see

my"Fiction and Formalism: Towards a

FunctionalAnalysis of Usil al-Fiqh," forthcoming.70 See above, nt. 46.71 See Mawdhib, 4:218.72 Sharh, 2:532. Al-Dardir's position is indicated disjunctively. He says that

the right to custody does not return o her "if she forfeits it after it accrues to her,"from which it is to be concluded that if she forfeits it before it accrues to her, she

50








who died in the ninteenth century, would emphatically endorse this

view as the standard position (al-mu'tamad) of the madhhab.73 While

this seems to indicate that al-Qarafi failed in his attempt to changeschool doctrine regarding his school's construction of this particular

precept, to look at the matter from this perspective is perhaps to miss

the point. For, as this study has shown, neither position on "isqat al-

haqq qabla wujubih" provides for what might be deemed an equitablesettlement in all circumstances. What matters, in other words, is not

whether al-Qarafi was able to sway the school regarding the status of

this particular precept as a whole, but whether the school tradition, in

tandem with his acumen as a jurist, provided enough material and

mechanisms for him to be able to challenge the finality of the status quo

and open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy in

tenth/sixteenthcentury Cairo.

can regainit. In otherwords, premature orfeiture s not binding.73 Hdshiyat, 2:533.

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Kramer v Kramer by Sherman Jackson

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