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Adjudicating Islamic Family Law in Egypt: Continuity and Rupture

Periodic Reporting for period 1 - Islamic Law Egypt (Adjudicating Islamic Family Law in Egypt: Continuity and Rupture)

Reporting period: 2018-09-15 to 2020-09-14

The project investigated adjudication of Muslim family law by Egyptian courts during the period 2011-2015, a critical juncture in modern Egyptian history. Primary focus was given to the application of Muslim family law because it is relevant to the broader debate on gendered citizenship. Since Sharia-derived family laws define the rights and obligations of men and women in regard to marriage, divorce, and filiation, they are a major
determinant of gendered citizenship rights. Being the only field of law where the principles of Islamic shari’a still apply, it is often portrayed as the last bastion of a dismantled Islamic legal system.

The project examined an issue that has been the subject of considerable public and scholarly debate in recent decades. Egypt is an interesting case in point worth dwelling on since it illustrates the complexity of normative pluralism in contemporary Muslim family law. Being the first country to codify family law after the Ottoman Empire, Egypt served as a model for subsequent family law reform in the region. During the 20th and 21st centuries, the Egyptian state adopted a series of personal status law codes designed to promote the nuclear family and turn marriage into a more permanent bond than that envisioned by classical Islamic jurisprudence, where the man has the right to unilaterally repudiate his wife without providing a reason and to marry up to four wives. With this in mind, 20th century law codes subjected the male right of polygamy and repudiation to several restrictions, while women’s access to judicial dissolution and child custody were expanded. These laws eclectically adopted doctrines from the classical schools of Islamic jurisprudence. In the post-2011 period Muslim family law became an area of public controversy and numerous actors challenged the authority of the state to interpret shari‘a. The issue of Muslim family law being such a live and controversial one, showed that the issue was in need of further academic exploration. Understanding these developments is important because Egypt is an important centre in the Muslim world which is under tremendous transformative pressures.

The project aimed to accomplish the following objectives: Objective 1: The overall aim of the project was to contribute to the growing scholarly literature on the implementation of shari‘a-based family codes by describing and analyzing focusing gender implications of religiously inspired judicial activism. Objective 2: A further aim was to shed light on the intersection between law and religion in this field, and how legal reasoning is shaped by a modern, positivistic conception of law through the use of a comparative perspective. Objective 3: To improve the fellow's career prospects through research training, public engagement, and stronger networks through international mobility.
The main results were published in five scholarly articles and chapters. The fellow also co-edited two special focus journal issues, one of which is already published. In addition, a book manuscript is underway. In order to communicate the research findings to different target audiences, the fellow delivered eight paper presentations at national and international workshops and conferences. She also engaged in activities whereby this knowledge was disseminated to students and a wider non-academic audience by arranging two research seminars on gender and judging in Muslim jurisdictions. The fellow also wrote a chapter in a textbook for bachelor-students in sociology of law on law and religion editedby colleagues from her host institution. This enhanced the ability of students to conceptualize the relationship between law and religion as a field of socio-legal inquiry. Another important part of public engagement was the submission of a blog on Gender and Judging in Muslim Courts for the New Middle East Blog at The Centre for Islamic and Middle East Studies (CIMS) at the University of Oslo, as well as newsletters at the website of Lund University which presented significant findings in an amenable form to the general public. The project also allowed the fellow to obtain new competences and skills for career advancement through training in ethnographic research methods, research ethics, project management, as well as improved skills in writing research grant applications. The fellow's networks were also strengthened through international mobility, in particular through a secondment at the Van Vollenhoven Instituut (VVI) department of Leiden Law School at Leiden University where she spent six months as a guest researcher. The acquisition of these new competences and skills will improve the fellow's future career opportunities in the academic field. The project has achieved its objectives, with relatively minor deviations.
The project’s contribution of the project to the field are visible in the following aspects. First, this project has extended the state-of-the-art by covering an area little addressed, namely religiously-inspired judicial activism in the field of Muslim family law. In particular, little scholarly attention has been devoted to how contemporary judges use uncodified Islamic doctrines in areas where legislation is silent. Instead, scholarly literature tends to posit that fiqh as compiled in the traditional legal manuals is still applied in these areas of law. Hence, the project filled a gap in scholarly literature by looking at how judges with civil law training invoke Quran, hadith, and uncodified fiqh with a view to legitimate their decisions. Second, another major trend in scholarship is to focus on women’s rights in Muslim family law, as opposed to the more encompassing concept of gender. Using gender as an analytical lens, the project sheds light on the gender implication of judicial activism within the context of the 2011 uprising. Third, another focal point is the issue is the question of gender and judicial authority. While adjudication in Muslim courts has long been a predominantly male exercise, the last decades have seen a significant increase in the appointment of women to the bench in Muslim-majority countries in the Middle East and South (East) Asia. Hence, women are an increasingly significant voice among the judiciary. The project enriched and added new aspects to a growing literature on women in the judiciary in the context of the Middle East and North-Africa. Fourth, in addition to offering thick description of working styles and individual decisions, the project innovated by venturing beyond the rule-governed and processual paradigm which has influenced much scholarship on shari‘a in practice by looking at Egyptian male and female judges’ relations with power and comparison with other Muslim jurisdictions such as Indonesia, Kuwait, Malaysia, Morocco, Palestine, Syria, and Tunisia. Through dissemination and public outreach, the work carried out has contributed to raising to improve understanding of Islamic law by emphasizing how contemporary judges on Muslim courts invoke the language of Islam in novel ways with a view to legitimate judicial decisions. Results emerging from the project also be of interest to scholars working in the field of gender, history of religions, and sociology of law, as well as students. Additional journal articles which are currently under development using data collected during this fellowship will continue to achieve impact in coming years
Judge hammer with law books