大象传媒

A dominant narrative in Islamic legal studies explicates that processes of 鈥渕odernization鈥� of the Shar墨士a have deprived modern Muslim jurists of their interpretative freedom and agency. According to this view, processes of secularisation, positivization, bureaucratization and codification of Islamic law have dramatically reduced the capacity of Muslim jurists to produce genuinely innovative Islamic content and legitimacy.鈥疻hile this narrative may have some merit, our underlying supposition is that despite processes of codification and standardization, contemporary Muslim judges and jurists (here defined broadly) still possess significant agency in introducing innovative Islamic content. This special issue provides a new perspective by examining how contemporary judges and jurists invoke new and old Islamic legal concepts and principles as normative resources in modern legal reasoning.听

In this dynamic field of hybridity and overlap, new forms of Islamic normativities emerge, which, in turn, undergo processes of standardization, codification, and canonization.听 This agency employs old and new Islamic tool kits and structures of meanings, thus producing dynamic and hybrid normativities, which in turn undergo processes of standardization, codification, and canonization. These modern dynamics of standardization/innovation have remained thus far largely understudied, arguably due to the (wrongful) assumption that modernity could not make room for them.听听听

Based on a conference panel in 2022 hosted by CanCode at the University of Bergen, which examines processes of canonization and codification in Islamic law,听 Based on a conference-panel hosted by the CanCode project in Bergen 2022, the proposed theme issue aims to address this issue systematically by bringing together articles by established and emerging scholars in modern Islamic law who study these processes in the context of present debates among jurists and judges with various aims and objectives, and court practices in different locations. sstudy these processes in different contexts. The case studies at hand range from the Middle East and North Africa (Egypt, Israel, Morocco, Saudi Arabia) to Southeast Asia (Indonesia, Malaysia). and locations. The special issue aims to shed light on empirical and historical phenomena while, at the same time, engaging in theoretical and conceptual discussion. In addition to the common focus on the agency of judges and jurists in engaging with the Islamic concepts and preceptsIslamic tradition, the nine papers are divided into two different thematical clusters:听

• First, the role of judges and jurists in producing new interpretations, standards and operationalizations bottom-up, a process that complements the top-down production of the code by parliament and elite experts. While having no formal role in codification, the agency of these actors informs and partly affects the continuous re-adjustment and updating of state-level, formal codification.听听

• Second, the active role played by judges and jurists inside and outside of courts in introducing new technologies, digital templates, new genres, and new canons into contemporary Islamic law that are considered authentic by the actors in question.听

The theme issue will be highly innovative and constitute a major contribution to the field. Based on the cumulative empirical output, we will formulate new theoretical models in the individual articles and in a dedicated co-authored introduction article (Hovden, Lindbekk and Shahar), thereby adjusting and enriching the existing narrative of modernization of change.听听

The articles will be further integrated with each other during a forthcoming workshop held at NIMAR, Rabat, 4.-5. Oct. 2023, co-funded by NIMAR and the CanCode project and this theme issue will be one of the main outcomes of the project.

This is a closed workshop. However, if the topic is of particular interest, contact Eirik.Hovden@uib.no.

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Nijmi Edres

Title: Textbooks as 鈥榪uasi-codes鈥�: An analysis of 鈥渁l-Murshid f墨 al-qa岣嵞�' al-shar士iyy鈥� and its role as an instrument to standardize Muslim legal practice

The paper aims at contributing at the scholarly discussion on processes of canonization and codification of Islamic legal texts by looking at the case of Israeli Shar墨驶a Courts and the role of Palestinian Muslim judges in Israel in bringing forward legal change and, at the same time, to provide for legal stability. Specifically, it looks at a textbook for Muslim practitioners, 鈥渁l-Murshid f墨 al-qa岣嵞�' al-shara士iyy鈥� (and its Hebrew version 鈥淭he Sharia courts: between adjudication and identity鈥�) authored by Muslim judge Iyad Zahalka (Qadi at the Shar墨驶a Court of Appeals in West Jerusalem), as an instrument to standardize Muslim legal practice in Israel. The paper investigates its role through the analysis of legal material and interviews with Palestinian Muslim judges in Israel. Against the background of previous scholarly discussions on taqlid and the function of mukhtasarat, the paper argues for the role of al-Murshid as a 鈥渂ottom up鈥� attempt for modernization and standardization of the law, and it resonates on the role of textbooks as 鈥榪uasi-codes鈥� in contexts where contemporary legislation is silent or obstructed.

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Nurul Hoda

Title: There and Back Again: A Socio-Legal Study of Codification through the Lens of Cross-Border Marriage Validation Cases in Malaysian Shari鈥檃h Court

The highly bureaucratized process of marrying in Malaysia 鈥� both monogamously and polygamously 鈥� has prompted increasing numbers of Muslim couples to elope to Southern Thailand to contract an Islamic marriage (nikah). To address this issue of rampant elopement, the Malaysian Islamic authorities devised a set of standardized legal procedures for Shari鈥檃h courts to discern the authenticity of cross-border (eloped) marriages before they can be registered under the Malaysian Islamic Family Law. This paper examines cross-border marriage validation cases as a lens for studying the dynamic processes of canonization and codification at play in the Malaysian Shari鈥檃h system. I argue that despite standardization practices introduced by the Shari鈥檃h judiciary at the federal level to regulate eloped marriages, judges at the state level maintain a significant level of agency in interpreting and implementing these into their own judgments of marriage validation cases. Based on long-term ethnographic fieldwork conducted in two different Malaysian Shari鈥檃h courts involving court observations, archival study of past marriage records, interviews with Shari鈥檃h judges and litigants, as well as document analyses of court operational manuals, this study offers a novel perspective on how codification can be driven from the bottom-up, developing from a social phenomenon and in turn shaping its outcome in courts.

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Dominik Krell

Title: The Legacy of Islamic Jurisprudence in Contemporary Arab Family Law

Modern codifications emerged in Europe as a result of Enlightenment rationalism which called for a completely new approach to law and jurisprudence. Law should be distilled into a systematized and cohesive code. From the code, legal experts should deduce rules in a logical fashion. Although the authors of these codes relied heavily on Roman law, their introduction marked the end of the Roman ius commune as a direct source of law. During the 19th century, the movement towards modern codifications evolved into a global trend. By the mid-20th century, most of the Arab world had adopted codified law. At this point, the application of Islamic law had been largely confined to family and inheritance law. However, as this article demonstrates, the adoption of codifications did not significantly change legal literature on family law. Instead, legal commentaries and articles written by law professors and judges continued to employ the methodology that had been developed by Islamic jurists (士ulam膩示) in the centuries before. Rather than deducing rulings from the codes, the commentators focused on aligning the codes with the corpus of Islamic jurisprudence. Based on an analysis of authoritative commentaries on the family codes of Iraq, Syria, and Jordan, I show that this continuity perpetuated pre-codification legal thinking. This, in turn, resulted in restrictive interpretations that often conflicted with the progressive intent behind numerous legislative initiatives. Furthermore, it led to the perception that Arab family laws, despite their considerable differences, constitute a single body of law. While codification strengthened the authority of emerging nation-states in Europe by distancing law from the Roman tradition, Arab legal literature keeps the connection between the family codes and Islamic jurisprudence alive, thereby undermining the Arab nation-states鈥� authority.

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Monika Lindbekk

Title: Establishing the Husband鈥檚 intention in Pronouncing 峁璦l膩q: The (Re)Production of Islamic Normativity by Egyptian Judges

Through successive statutory legislative codes that span a century, the Egyptian legislature has aimed to make marriage a more lasting bond than that envisioned by the predominant Hanafi doctrine, the official law school of Egypt, by attaching more importance to the intention (niyya) behind pronouncements of repudiation. This paper explores how contemporary Egyptian family judges trained in modern law schools ascertain the husband's intention in judicial disputes concerning male-initiated divorce (峁璦l膩q) based on the available evidence, ranging from bureaucratic documents, eyewitness testimony, fatwas, expert opinions, and circumstantial evidence. The paper argues that court practice in this area is characterized by considerable standardization as contemporary family court judges tend to formulate and authorize particular interpretations of Islamic law at the expense of others. The paper argues that contextual factors like time pressure, legal training and the introduction of computer technology are important contributing factors to understanding how judges produce changes in the existing legal canons. The paper approaches the subject by drawing upon textual genres such as court judgments, templates, fatwas, legal textbooks, and commentaries used by judges to assess the husband's intention in pronouncing 峁璦l膩q.

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Andreas Nabil

Title: The Judiciary and the Legal Islamisation Debate in 1970s and 1980s Egypt.

This paper is a micro-study of the Egyptian judge Ma岣�m奴d 士Abd al-岣�am墨d Ghur膩b (1935-1993), and the dozens of verdicts he issued according to his understanding of shar墨士a in the late 1970s and the 1980s in cases involving the corporal 岣�ud奴d punishments and usury (rib膩). A process of legal Islamisation was set in motion in Egypt in 1976, after the Islamists had won 14% of the seats in the People鈥檚 Assembly. The process culminated in 1980, when the Sadat regime famously amended Article Two of the Constitution, thereby making 鈥渢he principles of the shar墨士a the main source of legislation.鈥� The amendment was considered a major victory by proponents of what is often referred to as the 鈥渁pplication of the shar墨士a鈥� (ta峁璪墨q al-shar墨士a) and sparked hitherto unseen extra-parliamentary debates. The judiciary was split in two. One group was awaiting the completion of codification efforts in Parliament, and thereby the enactment of a complete shar墨士a-based system. The other group interpreted the amendment of Article 2 as a green light to start applying shar墨士膩 in the courtroom, as the constitution was considered the supreme law of the state. This chapter will flesh out these debates and shed light on why and how al-Ghur膩b, whom the preeminent religious institution al-Azhar named the 鈥渇irst Egyptian judge to apply the rule of God鈥檚 shar墨士a,鈥� was a leading figure among the proponents of divine law.

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Ari Schriber

Title: Annul, Uphold, Remand: Judicial Review in Twentieth-Century Islamic Legal Practice

How did modern state institutions of judicial review impact the adjudication of Muslim legal matters? My article examines the impact of a colonial-era institution, the Supreme Court of Shar墨士a Appeals (SCSA 1921-1956) on court outcomes. Means of judicial review long existed in Muslim legal contexts, yet the impact of state-backed appellate hierarchies like the SCSA鈥攁 judicial body comprised of elite Muslim jurists鈥攔emains poorly understood. I shed light on the impact of the SCSA through both quantitative and qualitative methods. The first part of my paper will quantify the frequency with which appeals courts annul or uphold lower courts and the correlation of annulment with case topic and/or lower court geography (e.g., urban versus rural). The second part will focus qualitatively on the Council鈥檚 discussion of 士amal鈥攍ocal judicial practice鈥攁s a lens into the elite jurists鈥� conception of the prevailing Muslim legal tradition of the era. Far from reverting to an 鈥渙rthodox鈥� Maliki tradition, the Council frequently overturned lower-court judgements that did not account for recent centuries of Moroccan jurisprudential literature. I conclude by assessing the Council鈥檚 power to leverage their position in a colonial state institution to solidify this conception in the era directly prior to the independent state鈥檚 codification of shar墨士a in 1957.

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Ido Shahar:

Title: (Re)Contextualizing Entextualization: Towards a Dialectic Analysis of text Production in a Contemporary Shari士a Court

Shari士a courts produce authoritative texts that establish social reality. Among other things, they may aim to establish the personal status of litigants (as married, divorced, separated, etc.); the rights and obligations of spouses towards one another; the filiation of children to their parents; and the ownership of property. For the purpose of establishing social reality, shari鈥檃 courts produce diversified types of texts: protocols, court orders, declaratory judgements, temporary or final verdicts, and more. What are the institutional dynamics and the textual conventions that shape these diverse texts? Which elements of the social interaction taking place in court is entextualized (say, in the protocol), and which elements are silenced or eliminated from the texts? Who controls this process and how? And how does this control help in shaping both the social interaction (the context) and its entextualization in the court鈥檚 records?

By closely examining court records production in one contemporary shari士a court 鈥� the shari士a court in West Jerusalem 鈥� the paper seeks to provide, for the first time, a thick description of entextualization processes in a shari士a court, as well as an analysis of the impact these processes have on the social interaction taking place in this court. The paper thus employs a dialectical framing that assumes a constitutive and bilateral relationship between the text and the context. As I will argue, the far-reaching control of the qadi over entextualization processes 鈥� e.g., the ability to differentiate between 鈥渙n-the record鈥� and鈥� off-the-record鈥� verbal exchanges, and the ability to rephrase and dictate what was said by other actors 鈥� provides the qadi with the ability to manoeuvre between three distinct functions: mediation, arbitration, and judgeship. I further argue that this manoeuvrability constitutes a key feature of the court鈥檚 legal culture.听听听听听听听听听听听听听

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Ayang Utriza Yakin and Baudouin Dupret:

Title: Establishing Filiation Relationships of Children Born out of Unlawful Sex: Legal Changes, Fiqh, and DNA Test in Indonesia

Regarding the establishment of filiation relationship (isbat nasab) of children born of unlawful sex (zina), the Indonesian case shows dramatic legal changes. Speaking of changes in law, Jean-Louis Halp茅rin (2014, viii) distinguishes between 鈥渙rdinary changes鈥� (inside the same legal system) and 鈥渞evolutionary changes鈥� (substitution of a new legal order for an older one). We would like to describe how 鈥榦rdinary legal change鈥� was actually revolutionary. First, the content of Islamic legal doctrine (fiqh) on the issue of filiation of children born of zina evolved dramatically. The verdict of the Indonesian Constitutional Court in 2012 transformed the legal theory and practice of fiqh, especially on the question of the admissibility of DNA tests in establishing of paternity relationship. Consequently, children born of zina have now rights and are entitled to filiation, inheritance, maintenance, and custody. Second, Indonesian Islamic courts鈥� practices have proved deeply flexible on this issue of paternal filiation. Following the advancement of technology (e.g., DNA) and of its recognition within the Indonesian civil legal system, the dynamics of fiqh tends toward legal homogenizing, standardization, and positivizing.

Baudouin Dupret is educated in Law, Islamic Sciences, and Political Sciences. He is Directeur de Recherche at the French National Centre for Scientific Research (CNRS). He is also guest lecturer at the University of Louvain (Belgium) and research associate at the Netherlands Institute Morocco (NIMAR, Rabat, Morocco). He has published extensively in the field of the sociology and anthropology of law in Middle Eastern and Islamic contexts. He (co-)edited numerous volumes, the two most recent ones being Legal Rules in Practice (with J. Colemans and M. Travers, Routledge, 2020) and State Law and Legal Positivism (with J.L. Halp茅rin, Brill, 2021). He also authored several books, e.g. What Is the Sharia? (Hurst, 2017) and Positive Law from the Muslim World (Cambridge U.P., 2021). He is currently working on the positivizing process of norms, in and beyond the law, in African Muslim contexts.

Nijmi Edres is Assistant Professor with tenure track in Islamic 大象传媒 at the Institute for the Study of the Middle East and Muslim Society at the University of Bern. Previously, she held post-doctoral positions at the Universities of Bergen (where she was part of the project CanCode), Exeter and G枚ttingen (where she joined the international team working at the project USPPIP, Understanding Sharia: Past Perfect Imperfect Present) and at the Leibniz Institute for Educational Media (GEI), in Braunschweig. She obtained her PhD from the University of Rome, Sapienza. Her scholarship looks at Palestine and Israel in the 20th and 21st centuries, paying special attention at Palestinian minority right鈥檚, Palestinian women鈥檚 rights and at the legal debates developed by Palestinian Muslim judges with Israeli citizenship. Her research also looked at political Islam and the Islamic Movement inside Israel, at the connections between Islam, Arabic language and national (Palestinian and Jordanian) identity, and at educational policies in Jordan, in relation to gender inclusion and representation.

Nurul Huda Mohd. Razif is a social anthropologist working on the intersection between Islam, intimacy, and the state in Muslim-majority Southeast Asia, with a particular interest in the rise of polygyny and cross-border marriages in contemporary Malaysia. Since completing her PhD in Social Anthropology at the University of Cambridge in 2018, she has held research fellowships at Harvard Law School (Program on Law and Society in the Muslim World) and in centres for Southeast Asian studies in Leiden, Paris, and Kyoto, where she is currently a Postdoctoral Fellow for the Japan Society for the Promotion of Science at Kyoto University. Her work has been published in journals on gender, Islamic law, and Southeast Asian studies, including HAWWA: Journal of Women of the Middle East and the Islamic World, Asian 大象传媒 Review, Archipel, and Journal of Legal Anthropology. In 2024, she will be joining the CanCode Project at the University of Bergen as a Marie Curie Postdoctoral Fellow for a project called 鈥淢ALAYMATRIMONEY鈥�, which will examine the codification of Malay adat (custom) in Malaysian Islamic family law in matters of matrimonial wealth.

Andreas Nabil Younan is a PhD student and Gates Cambridge Scholar at the Faculty of Asian and Middle Eastern 大象传媒, University of Cambridge. Andreas is writing a dissertation under the supervision of Prof Khaled Fahmy on the debate on the 鈥渁pplication of the shar墨士a鈥� (ta峁璪墨q al-shar墨士a) in 1970s and 1980s Egypt with a focus on legal Islamisation in the People鈥檚 Assembly and the related codification efforts.

Dominik Krell is a Leverhulme Early Career Fellow at the Centre for Socio-Legal 大象传媒 at the University of Oxford. Prior to joining Oxford, he held a position as a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg. Dominik is trained in law and holds additional degrees in Islamic studies and social anthropology. His primary research concern is the use and application of Islamic law in the contemporary world. His doctoral thesis, entitled 鈥淚slamic Law in Saudi Arabia: Concepts, Practices and Developments鈥� (University of Hamburg, 2021), employs a multi-disciplinary approach to explore the prevailing understanding of Islamic law in the Saudi judiciary. Based on interviews with high-ranking Islamic scholars, recently published court decisions and seldom-seen legal literature, the thesis shows that Saudi jurists have reinterpreted key aspects of Islamic jurisprudence, which has opened up the way for various important legal reforms in recent decades. In addition to his work on Saudi Arabia, Dominik has published on various aspects of Iraqi, Syrian and Palestinian family law and translated the family codes of Syria and Iraq from Arabic into German. His translations are extensively used by German family courts, the Foreign Ministry and other state and non-state institutions. Moreover, he has authored and contributed to expert opinions on the law of several Middle Eastern countries.

Monika Lindbekk works as a Post-Doctoral Research Fellow at the University of Southern Denmark and a Research Fellow at the University of Bergen. Before this, she was a Post-Doctoral Research Fellow at Lund University and Max Planck Institute for Comparative and International Private Law and a Senior Lecturer at the University of Oslo. A common thread throughout her research is the focus on law and religion in Muslim minority and majority contexts, particularly in Egypt. In addition to several scholarly articles, she has co-edited a volume on Women Judges in the Muslim World with Nadia Sonneveld (Leiden University), which Brill published in April 2017. She also co-edited a double special issue on Gender and Judging in Muslim Courts for the Journal of Women of the Middle East and the Islamic World (Hawwa), published in 2020.听

Ari Scriber currently Arts and Sciences Postdoctoral Fellow in the Department for the Study of Religion at the University of Toronto. My research interests lie at the intersection of twentieth-century Islamic legal history and Islamic intellectual history in the Middle East and North Africa. I am particularly interested in investigating the evolution of Islamic legal practice in colonial and post-colonial courts of twentieth-century Morocco.

He is currently preparing a monograph based on my doctoral thesis, provisionally entitled听The (Un)Making of Modern Shari士a: Judgeship, Proof, and Legislation in Twentieth-Century Moroccan Courts (1912-1965). Drawing on two-plus years of archival fieldwork in Morocco and France, the book traces a single three-decade dispute involving paternity, land, and slavery for which both Moroccan shari士a and French colonial courts claimed jurisdiction.听He uses parallel case studies and quantitative case analysis to demonstrate how Moroccan judges invoked a distinctly twentieth-century tradition of Islamic law to evaluate their court claims. While most literature on contemporary Islamic law focuses on family law, I demonstrate that land and procedure were the critical sites of contention in modern nation state institutions. At the same time, he shows that this tradition coexisted with a sharply limited version of shari'a applied by colonial French courts that would characterize Islamic law in the post-colonial state. In accounting for the difference, he focuses both on nascent state structures as well as divergent interpretive approaches for matters like property ownership, familial gender relations, and documentary evidence.听

Schriber completed my BA at the University of Virginia in Religious 大象传媒 and Middle East 大象传媒 and my masters and PhD (2021) in the Department for Near Eastern Languages and Civilizations at Harvard. Beginning in Fall 2023, he will be Marie Sk艂odowska-Curie Postdoctoral Fellow in the Department of Religious 大象传媒 at Utrecht University (Netherlands).听听

Ido Shahar is a senior lecturer at the Department of Middle Eastern and Islamic 大象传媒, University of Haifa. He is a legal anthropologist and a social historian, specializing in the study of shari'a courts, legal pluralism, and the legal-religious domain in Palestinian society. Among his recent Publications: Shahr, I. Legal Pluralism in the Holy City: Competing Courts, Forum Shopping, and Institutional Dynamics in Jerusalem (Ashgate: 2015); Shahar, I. (2019). A new look at the agency of Qadis: Israeli shar墨士a courts as a case study. Die Welt Des Islams 59 (1), 70鈥�98; Shahar, I. (2021). Diversity in sul岣� practices among Arab-Palestinians in Israel and its implications for state鈥搈inority relations: A pluri-legal perspective. Journal of Legal Pluralism and Unofficial Law 53 (2), 227鈥�245; Shahar, I., and Yefet, K.C. (2022). Kadijustiz in the ecclesiastical courts: Naming, blaming, reclaiming. Law and Society Review 56 (1), 53鈥�77.

Ayang Utriza Yakin is a guest lecturer at the Universit茅 Catholique de Louvain (UCLouvain), Belgium, postdoctoral researcher at Sciences-Po Bordeaux, France, and lecturer at the Indonesian International Islamic University (UIII), Depok, West-Java, Indonesia. He was a visiting fellow and postdoctoral researcher in Oxford (2012), Harvard (2013), Tokyo (2016), and UCLouvain (2016鈥�2019) and visiting professor in Arabic and Islamic 大象传媒 at Ghent University (2019鈥�2021). He (co)-authored numerous articles and book-chapters and co-edited several books: Rethinking Halal: Genealogy, Current Trends, and New Interpretation (Brill, 2021), Islamic Divorce in the Twentieth-First Century: A Global Perspective (Rutgers University Press, 2022), Shame, Modesty, and Honor in Islam (Bloomsbury, forthcoming 2023), and Histoire, Soci茅t茅, et 脡tudes islamiques au 21e si猫cle (De Gruyter, forthcoming 2023).

(Preliminary program)

Wednesday 4th of October 2023

Session 1

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10:00 Welcome by Eirik Hovden and Monika Lindbekk and introduction by Eirik Hovden

Two papers

12:30 Light lunch at NIMAR

Session 2

Three papers

18:00 Dinner (TBA)

Thursday 5th October (continuation)

Session 3

Two papers

12:00 Lunch (Near NIMAR, TBA)

Session 4

One paper

15:00 Concluding reflections

Coffee break

16:00 Future collaborations beyond the theme issue

17:00 Guided tour of selected sights of Rabat and Dinner.