Citation: Alicia Daniel, Review of Sherman A. Jackson, Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative Jurisprudence between Exigency and Law [Islamic Law and Society 8, no. 1 (2001): 27-51], Islamic Law Blog (Mar. 2017)
In the sixteenth century, Egyptian jurists struggled with an issue not unlike that presented in the popular American film Kramer versus Kramer. Fathers, who upon divorce had agreed to surrender child custody rights regardless of their wives’ future remarriage, would change their minds once their ex-wives actually remarried. The mothers fought back, pointing to their earlier court-approved custody agreements. This pattern became so common that prominent Mālikī jurist Shihāb al-Dīn al-Qarāfī felt compelled to issue a major advisory opinion (fatwā) to address the issue. His approach to this problem was to allow mothers to retain custody, even though the majority of views of the jurists of his own school of Islamic law (madhhab) was largely against him. That approach can illuminate the methods and sources of legal reasoning employed by Islamic law scholars during this time. This post provides a “plain English” review of the article: Sherman A. Jackson, Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative Jurisprudence between Exigency and Law, Islamic Law and Society 8, no. 1 (2001): 27-51.
Going Against the Grain
At the time Shihāb al-Dīn Qarāfī wrote his fatwā (advisory opinion) on child custody, Mālikī jurists were divided on the issue: whether to restore custody to the fathers in cases where their ex-wives remarried and they now objected to the women retaining custody of their children. One of the main disagreements was between those who agreed that the forfeiture of custody rights was final because it had been confirmed by a judge, and those who saw it simply as an agreement between parties that could be renegotiated.
Qarāfī was of the former opinion, but in writing his fatwā, he would have been required to “confront a number of doctrinal obstacles within the Maliki school . . . . Rather than return to scripture directly in an effort to effect new interpretations of the sources . . . [he invoked] new divisions, exceptions, definitions and precedents within the body of school doctrine, out of which [he was] able to construct—as opposed to inventing—new conclusions whose conspicuous link with the views of established authorities from the past earn[ed] them acceptability within the school at large.” (p. 29)
The period in which Qarāfī was writing is sometimes called the “post-formative” period of Islamic law, because—by that time—the four Sunnī madhhabs had been settled and had conferred mutual recognition upon one another. Starting in this period, “[n]o longer was the unfettered and independent [reasoning] of the individual [jurist] sufficient to confer authority upon an opinion . . . . Authority was now mediated through the endorsement of the association of jurisconsults as a whole, i.e., the madhhab.” (p. 31)
Within a single school, there could be multiple opinions, but they did not all have the same weight. One view, the mashhūr, was the “majority opinion,” accepted by most scholars and hence the school’s predominant opinion. The rājiḥ, on the other hand, was a “preferred opinion” expounded by an individual scholar, and expressed the opinion that he believed should be the mashhūr. When jurists like Qarāfī set out to write fatwās that went against the mashhūr, they could not just ignore the majority or preferred opinions. In particular, they had to show that either the mashhūr was wrong or that their argument was not inconsistent with it.
Qarāfī’s approach in his child custody opinion was to first argue that there was no established majority opinion (mashhūr) on this question. Although the view that husbands could not prematurely (that is, at the time of divorce) forfeit their rights to the children of their remarried ex-wives was a strong contender for mashhūr status, he argued, it had not definitively won out. Therefore, he was free to propose an alternative view. Accordingly, he argued that, despite the general rule that people cannot give up rights they do not yet have, Islamic law recognized several exceptions. The right of the husband to regain custody of children when his wife remarried could be one of these exceptions. Therefore, it was at least possible that the forfeiture of custody rights in the divorce was binding.
Next, Qarāfī addressed the argument that a divorced wife who remarried had forfeited her rights to custody by remarrying. Mālikīs believed that when a woman remarried, she lost the right to her maintain custody over her children. However, Qarāfī pointed out that the husband was not next in line to receive custody. Despite the popular belief that custody reverted to the father, there were actually several female relatives in line before him for custody. Since neither the mother nor the father could bargain away these other parties’ rights, he argued, the father could not demand automatic custody upon the mother’s remarriage.
Having removed those two doctrinal obstacles, Qarāfī supported his view that the mother should retain custody by referencing custom and judicial practice as dispositive. In short, he argued that “whenever there is a standing controversy within the school, it is legitimate to rely upon judicial practice as the deciding factor. Even where one of the competing views is accepted as the mashhūr, judicial practice . . . may be legitimately relied upon to tip the balance in the opposite direction. This is all the more applicable in the present dispute, since . . . the normal procedure . . . of the (Maliki?) courts in Cairo was to recognize and enforce a father’s premature agreement to forfeit custody.” (p. 49)
Sherman Jackson concludes that Qarāfī’s arguments provide powerful insights into Islamic legal reasoning in the post-formative period. Although it is unclear whether he succeeded in changing the school opinion, the fact that he sought to do so was itself significant. Rather than simply interpret the text of scripture, Qarāfī had to negotiate prior precedent, as well as legal and social realities of his time. Though, he may not have persuaded the school to adopt a new rule in these custody cases, he arguably opened up the legal and psychological space for his fellow jurists to consider deviating from the dominant rule when justice so required.
Madhhab = (interpretive) legal school. Islamic law has multiple approaches to legal interpretation, called schools of law, or madhhabs. Scholar-jurists in each school each interpret the law and resolve cases. Although each jurist relies on Islam’s foundational texts, the Qurʾān and the Sunnah (contained in ḥadīth reports of Prophetic statements and actions), these same jurists often reach different conclusions of law, much like American judges examining a dispute appeal to the same sources of law but reach different conclusions about outcomes. Sometimes, even scholars within the same legal school disagreed on certain issues.
Fatwā = advisory opinion. Muslim jurists issue legal opinions called fatwās, giving their interpretation of discrete legal issues based on the foundational texts of Islamic law and on previous legal opinions within their own schools. Issuance of this kind of advisor opinion does not assure a determined outcome. Qarāfī’s sixteenth century fatwā about child custody shows how a jurist may go against the prevailing opinion of his school and use innovative legal reasoning to reach what he believes is a just outcome.