Jackson - Kramer vs Kramer

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  • Brill, Leiden, 2001 Islamic Law and Society 8,1




    (The University of Michigan)

    To Cliff Duncan

    AbstractThe relationship between the individual jurist, the madhhab and scripture (Qurnand Sunnah) has long been a topic of debate among scholars of Islamic law. Basedon a detailed fatw on a controversial issue in tenth/sixteenth century Cairo, thepresent essay describes how, in the post-formative period, the madhhab mediatedbetween the jurist and the sources. While clearly reflecting a commitment to taqld,this fatw renders problematic the attribution of such adjectives as conservativeor 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 craftingindividual fatws for difficult cases.


    THE POPULAR AMERICAN MOVIE, 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 Kramer had at long last succeeded in ingratiatinghimself with the enterprise of single parenthood and was not about to

    *Versions of this article were presented at the 1997 annual conference of theMiddle East Studies Association in San Franciso and at a Mellon Seminar onThe Crafting of the Legal Opinion (Fatw) in Islam: Text, Subtext, HiddenAgenda at Princeton University in March of 1998. I would like to thank ProfessorJohn R. Willis, who invited me to this seminar, and the Princeton students andfaculty who attended and afforded me the opportunity for a valuable exchange.


    relinquish the child. A bitter legal battle ensued, and unconvinced byTed Kramers claim that the couples agreement constituted a perma-nent forfeiture of his ex-wifes rights to custody, the judge ruled infavor of the former Mrs. Kramer.

    In a recently published monograph, Kitb al-ibnah f iat isqm lam yajib min al-anah,1 the tenth/sixteenth century Mlik judgeand jurist, Badr al-Dn al-Qarf, takes up a controversy whose basicfeatures are reminiscent of the Kramer case. This time, however, theproblem is not mothers but fathers who renege on previously agreed-upon child custody arrangements. In the opening segment of this work,al-Qarf speaks of being inundated by questions involving men, whoupon divorcing their wives, contractually agree (yushhidu al nafsih)to allow their children to remain in the custody of their mothers, even ifthe mothers should remarry.2 Upon learning, however, that their for-mer spouses had in fact remarried, these men would return and petitionfor custody of their childrenignoring their initial agreements as wellas the fact that these had been formally recognized and validated by ajudge.3 The reason for their change of heart was said to have been theirfear that their childrens welfare would be compromised by their formerspouses preoccupation with their new husbands. For their part, themothers in question flatly refused to surrender the children, takingrefuge in the previously ratified agreements. Al-Qarf reports thatimpasses of this type had proliferated to annoying proportions (kathratal-wuq).4 His Kitb al-ibnah f iat isq m lam yajib min al-anah was a direct and detailed fatw crafted with the intention ofbringing this controversy to its knees.

    Kitb al-ibnah appears to have been addressed exclusively to theMlik community of Cairo. In the introduction, al-Qarf intimates thatonly Mlik judges had suffered the indignity of having their rulingschallenged or ignored. He notes further that the controversy over thelegality of fathers reneging on such custody-agreements had dividedMlik jurists into two camps. One group held that the fathers in ques-tion are not bound by their initial agreements, even if these had beenformally recognized and ratified by a judge. The other group held thatthe fathers are absolutely bound, especially since the agreements hadbeen confirmed by a judge. Al-Qarf comes down on the side of the

    1Ed. Yay Amad al-Jarad (Saudi Arabia: Maktabat al-Ghurab al-Atharyah, 1414/1994).

    2Ibnah, 32.3Ibid., 32-33.4See Ibnah, 32-33 for al-Qarfs full characterization of the problem.


    latter group, insisting that the fathers in question had no right to petitionfor custody of their children. En route to this conclusion, however, hewould have to confront a number of doctrinal obstacles within theMlik school. His approach in this fatw confirms what I have saidelsewhere about the modus operandi of post-formative jurists operatingunder what I refer to as a r gime of taqld.5 Rather than return toscripture directly in an effort to effect new interpretations of the sources(what I argue elsewhere to be an exercise in ijtihd proper),6 juristsrespond to change and unforseen exigencies by invoking new divisions,exceptions, definitions and precedents within the body of schooldoctrine, out of which they are able to constructas opposed toinventingnew conclusions whose conspicuous link with the views ofestablished authorities from the past earn them acceptability within theschool at large. Elsewhere I have referred to this process as legal scaf-folding.7 As a post-formative jurist, al-Qarf understood that his taskwas not as simple as proffering a new interpretation of the scripturalreferences to child-custody (and related issues), which his audiencemight recognize as valid on purely substantive grounds. Rather, hewould have to reconcile his aims with the standing rules backed by theimmovable authority of the Mlik legal tradition. His movement,therefore, would not be from scripture to the question at hand but ratherfrom the manuals of fiqh and other authoritative sources within hisschool to the question at hand. In other words, al-Qarfs movementwould not be from Qurn, Sunnah and ul al-fiqh to the issue at handbut, rather, from already treated issues to the issue at hand, i.e., fromfur to fatw.8 Accordingly, over the entire span of Kitb al-ibnahmore than seventy pages of argument properhe adduces not a singleverse from the Qurn, not a single prophetic adth, nor a singleargument based on the type of philological analytics developed underthe discipline of ul al-fiqh. By contrast, he cites no less than twenty-eight sources of Mlik law (fiqh, not ul al-fiqh) and fifty-eightauthorities within the Mlik school.

    5See S.A. Jackson, Islamic Law and the State: The Constitutional Jurispru-dence of Shihb al-Dn al-Qarf (Leiden: E.J. Brill, 1996), 73-101; idem, Taqld,Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory:Mulaq and mm in the Jurisprudence of Shihb al-Dn al-Qarf, Islamic Lawand Society, 3:2 (1996): 167-73.

    6See Taqld, Legal Scaffolding, 167, nt. 5.7Ibid.8Cf. W.B. Hallaq, From Fatws to Fur: Growth and Change in Islamic

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


    II.Badr al-Dn al-Qarf

    Badr al-Dn Muammad b. Yay b. Umar b. Amad b. Ynus b.Abd al-Ramn al-Qarf was born in the year 939/1533 (or accord-ing to one account 938/1532), apparently in Cairo. A member of aprestigious family of Mlik jurists, he began his education under hisfather, who taught him the famous Mlik manual, Mukhtaar khall.He would go on to study under the leading scholars of his day,ultimately earning the honorific, shaykh al-mlikyah. He served asjudge and maintained good relations with the newly arrived Ottomans.The biographer al-Muibb (almost certainly exaggerating) reports thathe remained in office for over fifty years. Like most premodern figures,his private life remains shrouded in dignified obscurity and we are left,thus, with no leads about how his family and other relations mighthave informed his position on the present matter. As a scholar, heauthored several works, including a commentary on a work by Ibn al-Hjib (it is not clear whether this text was in the field of ul or fiqh), aconmmentary on Mliks al-Muwaa, a commentary on the Tahdhbof al-Bardhi (d. 386/996), in which he set out to establish whichamong the competing views espoused within the madhhab should beaccepted as the going opinion (mashhr),9 and a supplement to IbnFarns biographical dictionary of Mlik scholars, al-Dbj al-mudhahhab f marifat ayn ulam al-madhhab, entitled Tawsh al-dbj wa ilyat al-ibtihj.10 The number of references to him in laterMlik fiqh-works attests to his status as a jurist and to his contribu-tions to the Mlik legal tradition.11 The present work, Kitb al-ibnah fiat isq m lam yajib min al-anah, was completed in the year975/1567, when al-Qarf was about thirty-four years old (in lunaryears, thirty-six). He died in the year 1008/1599 at the age of sixty-six(sixty-nine lunar).12

    III.The Modus Operandi of the Post-Formative R gime of Taqld

    My use of the term post-formative is a reference to the period inMuslim legal history that followed the so-called settling down of the

    9See below.10Ed. Amad al-Shitayw (Beirut: Dr al-Gharb al-Islm, 1403/1993).11See, e.g., Amad al-w (d. 1241/1825), Bulghat al-slik li aqrab al-

    maslik, 2 vols. (Cairo: al-Maktabah al-Tijryah al-Kubr, n.d.), 1:457, 2:91 andpassim.

    12On al-Qarfs biography, see Muammad Amn Fal Allh al-Muibb,Khulat al-athar f ayn al-qarn al-d ashar, 4 vols. (Beirut: Maktabat al-Khayy, n.d.),