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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 CENTURYEGYPTIAN COURT:POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY

    AND LAW *SHERMANA. JACKSON

    (The Universityof Michigan)

    To Cliff Duncan

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

    I. IntroductionTHE 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. Upondoing 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 newrelationship), at which time she decided that she wanted custody of herson. 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, HiddenAgenda" at PrincetonUniversityin March of 1998. I would like to thank ProfessorJohn R. Willis, who invited me to this seminar, and the Princeton students andfacultywho attendedand afforded me the opportunity or a valuableexchange.Islamic Law and Society8,1Brill, Leiden, 2001

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    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 infavor of the formerMrs.Kramer.In a recentlypublishedmonograph,Kitdbal-ibdnah i sihhat isqatmd lamyajibminal-haddnah,1hetenth/sixteenthenturyMalikijudgeandjurist,Badral-Din al-Qarafi,takes up a controversywhose basicfeatures are reminiscentof the Kramercase. This time, however, theproblem s not mothersbut fatherswho renege on previouslyagreed-uponchildcustodyarrangements.n theopeningsegmentof thiswork,al-Qarafispeaksof being inundatedby questions nvolving men, whoupon 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 wellas the fact thatthese hadbeen formally recognizedandvalidatedby ajudge.3Thereasonfor theirchangeof heartwas said to have been theirfear thattheirchildren'swelfarewould be compromised y theirformerspouses' preoccupationwith their new husbands.For their part, themothers in question flatly refused to surrender he children, takingrefuge in the previously ratified agreements.Al-Qarafireports thatimpassesof thistypehadproliferatedo annoyingproportionskathlratal-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 theMalikicommunityof Cairo.In theintroduction, l-Qarafintimates hatonly Malikijudges had suffered the indignityof having theirrulingschallengedor ignored.He notes further hatthe controversyover thelegality of fathersrenegingon such custody-agreementshad dividedMalikijuristsinto two camps.One groupheldthat the fathers n ques-tion are not boundby their initial agreements,even if these had beenformallyrecognizedandratifiedby a judge. The othergroupheld thatthe fathers are absolutelybound,especially since the agreementshadbeen 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.

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    POST-FORMATIVE URISPRUDENCEBETWEENEXIGENCYAND LAW 29lattergroup, nsistingthatthefathers n questionhad no rightto petitionfor custodyof their children.En route to this conclusion,however,hewould have to confront a numberof doctrinalobstacles within theMaliki school. His approach n thisfatwc confirmswhat I have saidelsewhereabout hemodusoperandiof post-formativeurists operatingunder what I refer to as a regime of taqlid.5 Ratherthan returntoscripture irectly n an effortto effect new interpretationsf the sources(what I argue elsewhere to be an exercise in ijtihad proper),6 juristsrespond o changeand unforseenexigenciesby invokingnew divisions,exceptions, definitions and precedents within the body of schooldoctrine, out of which they are able to construct-as opposed toinventing-new conclusionswhose conspicuous ink with the views ofestablishedauthorities romthe pastearnthemacceptabilitywithintheschoolatlarge.ElsewhereI havereferredo thisprocessas "legalscaf-folding".7As a post-formativeurist,al-Qarafiunderstood hat his taskwas not as simple as profferinga new interpretation f the scripturalreferences to child-custody (and relatedissues), which his audiencemight recognize as valid on purely substantivegrounds.Rather,hewouldhave to reconcile his aimswith thestandingrules backedby theimmovable authorityof the Maliki legal tradition. His movement,therefore,wouldnot be fromscriptureo thequestionat handbutratherfrom the manuals offiqh and other authoritativesources within hisschool to the questionat hand.In otherwords, al-Qarafi'smovementwouldnotbe fromQur'an,Sunnahandusulal-fiqhto the issue at handbut, 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 singleargumentbased on the typeof philological analyticsdevelopedunderthe 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-FormativeTheory: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 IslamicSubstantiveLaw,"Islamic Law and Society, 1:1 (1994): 29-65.

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    SHERMANA. JACKSONII. Badr al-Dinal-QardfiBadr 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.

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