copy Brill Leiden 2001 Islamic Law and Society 81

KRAMER VERSUS KRAMER IN A TENTHSIXTEENTH CENTURYEGYPTIAN COURT

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCYAND LAW

SHERMAN A JACKSON

(The University of Michigan)

To Cliff Duncan

AbstractThe relationship between the individual jurist the madhhab and scripture (Qurfrac34umlnand Sunnah) has long been a topic of debate among scholars of Islamic law Basedon a detailed fatwuml on a controversial issue in tenthsixteenth 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 taqlAcircdthis fatwuml renders problematic the attribution of such adjectives as OgraveconservativeOacuteor OgraveservileOacute 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 fatwumls for Ocircdifficult casesOtilde

IEcircEcircIntroduction

THE POPULAR AMERICAN MOVIE Kramer versus Kramer (1979)highlighted the saga of a young couple Ted and Joanah Kramer whoafter several years of marriage mutually decided to divorce Upondoing so the Kramers also agreed that their five year old son Joeywould remain in the custody of his father Some eighteen months laterhowever 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

EcircEcircEcircVersions of this article were presented at the 1997 annual conference of theMiddle East Studies Association in San Franciso and at a Mellon Seminar onOgraveThe Crafting of the Legal Opinion (Fatwuml) in Islam Text Subtext HiddenAgendaOacute 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

28 SHERMAN A JACKSON

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

In a recently published monograph Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszligmuml lam yajib min al-frac12aacuteumlnah1 the tenthsixteenth century MumllikAcirc judgeand jurist Badr al-DAcircn al-QarumlfAcirc 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 workal-QarumlfAcirc speaks of being inundated by questions involving men whoupon divorcing their wives contractually agree (yushhidu regaluml nafsih)to allow their children to remain in the custody of their mothers even ifthe mothers should remarry2 Upon learning however that their for-mer spouses had in fact remarried these men would return and petitionfor custody of their childrenmdashignoring their initial agreements as wellas the fact that these had been formally recognized and validated by ajudge3 The reason for their change of heart was said to have been theirfear that their childrenOtildes welfare would be compromised by their formerspousesOtilde preoccupation with their new husbands For their part themothers in question flatly refused to surrender the children takingrefuge in the previously ratified agreements Al-QarumlfAcirc reports thatimpasses of this type had proliferated to annoying proportions (kathAcircratal-wuqacircreg)4 His Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig muml lam yajib min al-frac12aacuteumlnah was a direct and detailed fatwuml crafted with the intention ofbringing this controversy to its knees

Kitumlb al-ibumlnah appears to have been addressed exclusively to theMumllikAcirc community of Cairo In the introduction al-QarumlfAcirc intimates thatonly MumllikAcirc 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 dividedMumllikAcirc 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-QarumlfAcirc comes down on the side of the

1EcircEcircEcircEd Yafrac12yuml Afrac12mad al-JaradAcirc (Saudi Arabia Maktabat al-Ghurabumlfrac34 al-AtharAcircyah 14141994)

2EcircEcircEcircIbumlnah 323EcircEcircEcircIbid 32-334EcircEcircEcircSee Ibumlnah 32-33 for al-QarumlfAcircOtildes full characterization of the problem

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 29

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 theMumllikAcirc school His approach in this fatwuml confirms what I have saidelsewhere about the modus operandi of post-formative jurists operatingunder what I refer to as a r gime of taqlAcircd5 Rather than return toscripture directly in an effort to effect new interpretations of the sources(what I argue elsewhere to be an exercise in ijtihumld proper)6 juristsrespond to change and unforseen exigencies by invoking new divisionsexceptions definitions and precedents within the body of schooldoctrine out of which they are able to constructmdashas opposed toinventingmdashnew 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 Ogravelegal scaf-foldingOacute7 As a post-formative jurist al-QarumlfAcirc 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 MumllikAcirc legal tradition His movementtherefore 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-QarumlfAcircOtildes movementwould not be from Qurfrac34umln Sunnah and utimesacircl al-fiqh to the issue at handbut rather from already treated issues to the issue at hand ie fromfuracircreg to fatwuml8 Accordingly over the entire span of Kitumlb al-ibumlnahmdashmore than seventy pages of argument propermdashhe adduces not a singleverse from the Qurfrac34umln not a single prophetic frac12adAcircth nor a singleargument based on the type of philological analytics developed underthe discipline of utimesacircl al-fiqh By contrast he cites no less than twenty-eight sources of MumllikAcirc law (fiqh not utimesacircl al-fiqh) and fifty-eightauthorities within the MumllikAcirc school

5EcircEcircEcircSee SA Jackson Islamic Law and the State The Constitutional Jurispru-dence of Shihumlb al-DAcircn al-QarumlfAcirc (Leiden EJ Brill 1996) 73-101 idem OgraveTaqlAcircdLegal Scaffolding and the Scope of Legal Injunctions in Post-Formative TheoryMuszliglaq and regcurrenmm in the Jurisprudence of Shihumlb al-DAcircn al-QarumlfAcircOacute Islamic Lawand Society 32 (1996) 167-73

6EcircEcircEcircSee OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 57EcircEcircEcircIbid8EcircEcircEcircCf WB Hallaq OgraveFrom Fatwumls to Furacircreg Growth and Change in Islamic

Substantive LawOacute Islamic Law and Society 11 (1994) 29-65

28 SHERMAN A JACKSON

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

In a recently published monograph Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszligmuml lam yajib min al-frac12aacuteumlnah1 the tenthsixteenth century MumllikAcirc judgeand jurist Badr al-DAcircn al-QarumlfAcirc 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 workal-QarumlfAcirc speaks of being inundated by questions involving men whoupon divorcing their wives contractually agree (yushhidu regaluml nafsih)to allow their children to remain in the custody of their mothers even ifthe mothers should remarry2 Upon learning however that their for-mer spouses had in fact remarried these men would return and petitionfor custody of their childrenmdashignoring their initial agreements as wellas the fact that these had been formally recognized and validated by ajudge3 The reason for their change of heart was said to have been theirfear that their childrenOtildes welfare would be compromised by their formerspousesOtilde preoccupation with their new husbands For their part themothers in question flatly refused to surrender the children takingrefuge in the previously ratified agreements Al-QarumlfAcirc reports thatimpasses of this type had proliferated to annoying proportions (kathAcircratal-wuqacircreg)4 His Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig muml lam yajib min al-frac12aacuteumlnah was a direct and detailed fatwuml crafted with the intention ofbringing this controversy to its knees

Kitumlb al-ibumlnah appears to have been addressed exclusively to theMumllikAcirc community of Cairo In the introduction al-QarumlfAcirc intimates thatonly MumllikAcirc 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 dividedMumllikAcirc 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-QarumlfAcirc comes down on the side of the

1EcircEcircEcircEd Yafrac12yuml Afrac12mad al-JaradAcirc (Saudi Arabia Maktabat al-Ghurabumlfrac34 al-AtharAcircyah 14141994)

2EcircEcircEcircIbumlnah 323EcircEcircEcircIbid 32-334EcircEcircEcircSee Ibumlnah 32-33 for al-QarumlfAcircOtildes full characterization of the problem

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 29

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 theMumllikAcirc school His approach in this fatwuml confirms what I have saidelsewhere about the modus operandi of post-formative jurists operatingunder what I refer to as a r gime of taqlAcircd5 Rather than return toscripture directly in an effort to effect new interpretations of the sources(what I argue elsewhere to be an exercise in ijtihumld proper)6 juristsrespond to change and unforseen exigencies by invoking new divisionsexceptions definitions and precedents within the body of schooldoctrine out of which they are able to constructmdashas opposed toinventingmdashnew 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 Ogravelegal scaf-foldingOacute7 As a post-formative jurist al-QarumlfAcirc 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 MumllikAcirc legal tradition His movementtherefore 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-QarumlfAcircOtildes movementwould not be from Qurfrac34umln Sunnah and utimesacircl al-fiqh to the issue at handbut rather from already treated issues to the issue at hand ie fromfuracircreg to fatwuml8 Accordingly over the entire span of Kitumlb al-ibumlnahmdashmore than seventy pages of argument propermdashhe adduces not a singleverse from the Qurfrac34umln not a single prophetic frac12adAcircth nor a singleargument based on the type of philological analytics developed underthe discipline of utimesacircl al-fiqh By contrast he cites no less than twenty-eight sources of MumllikAcirc law (fiqh not utimesacircl al-fiqh) and fifty-eightauthorities within the MumllikAcirc school

5EcircEcircEcircSee SA Jackson Islamic Law and the State The Constitutional Jurispru-dence of Shihumlb al-DAcircn al-QarumlfAcirc (Leiden EJ Brill 1996) 73-101 idem OgraveTaqlAcircdLegal Scaffolding and the Scope of Legal Injunctions in Post-Formative TheoryMuszliglaq and regcurrenmm in the Jurisprudence of Shihumlb al-DAcircn al-QarumlfAcircOacute Islamic Lawand Society 32 (1996) 167-73

6EcircEcircEcircSee OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 57EcircEcircEcircIbid8EcircEcircEcircCf WB Hallaq OgraveFrom Fatwumls to Furacircreg Growth and Change in Islamic

Substantive LawOacute Islamic Law and Society 11 (1994) 29-65

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 29

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 theMumllikAcirc school His approach in this fatwuml confirms what I have saidelsewhere about the modus operandi of post-formative jurists operatingunder what I refer to as a r gime of taqlAcircd5 Rather than return toscripture directly in an effort to effect new interpretations of the sources(what I argue elsewhere to be an exercise in ijtihumld proper)6 juristsrespond to change and unforseen exigencies by invoking new divisionsexceptions definitions and precedents within the body of schooldoctrine out of which they are able to constructmdashas opposed toinventingmdashnew 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 Ogravelegal scaf-foldingOacute7 As a post-formative jurist al-QarumlfAcirc 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 MumllikAcirc legal tradition His movementtherefore 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-QarumlfAcircOtildes movementwould not be from Qurfrac34umln Sunnah and utimesacircl al-fiqh to the issue at handbut rather from already treated issues to the issue at hand ie fromfuracircreg to fatwuml8 Accordingly over the entire span of Kitumlb al-ibumlnahmdashmore than seventy pages of argument propermdashhe adduces not a singleverse from the Qurfrac34umln not a single prophetic frac12adAcircth nor a singleargument based on the type of philological analytics developed underthe discipline of utimesacircl al-fiqh By contrast he cites no less than twenty-eight sources of MumllikAcirc law (fiqh not utimesacircl al-fiqh) and fifty-eightauthorities within the MumllikAcirc school

5EcircEcircEcircSee SA Jackson Islamic Law and the State The Constitutional Jurispru-dence of Shihumlb al-DAcircn al-QarumlfAcirc (Leiden EJ Brill 1996) 73-101 idem OgraveTaqlAcircdLegal Scaffolding and the Scope of Legal Injunctions in Post-Formative TheoryMuszliglaq and regcurrenmm in the Jurisprudence of Shihumlb al-DAcircn al-QarumlfAcircOacute Islamic Lawand Society 32 (1996) 167-73

6EcircEcircEcircSee OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 57EcircEcircEcircIbid8EcircEcircEcircCf WB Hallaq OgraveFrom Fatwumls to Furacircreg Growth and Change in Islamic

Substantive LawOacute Islamic Law and Society 11 (1994) 29-65

30 SHERMAN A JACKSON

IIEcircEcircBadr al-DAcircn al-QarumlfAcirc

Badr al-DAcircn Mufrac12ammad b Yafrac12yuml b regUmar b Afrac12mad b Yacircnus bregAbd al-Rafrac12mumln al-QarumlfAcirc was born in the year 9391533 (or accord-ing to one account 9381532) apparently in Cairo A member of aprestigious family of MumllikAcirc jurists he began his education under hisfather who taught him the famous MumllikAcirc manual Mukhtatimesar khalAcirclHe would go on to study under the leading scholars of his dayultimately earning the honorific shaykh al-mumllikAcircyah He served asjudge and maintained good relations with the newly arrived OttomansThe biographer al-Mufrac12ibbAcirc (almost certainly exaggerating) reports thathe remained in office for over fifty years Like most premodern figureshis private life remains shrouded in dignified obscurity and we are leftthus 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-Humljib (it is not clear whether this text was in the field of utimesacircl or fiqh) aconmmentary on MumllikOtildes al-Muwaszligszligafrac34 a commentary on the TahdhAcircbof al-BarumldhiregAcirc (d 386996) in which he set out to establish whichamong the competing views espoused within the madhhab should beaccepted as the going opinion (mashhacircr)9 and a supplement to IbnFarfrac12acircnOtildes biographical dictionary of MumllikAcirc scholars al-DAcircbumlj al-mudhahhab fAcirc maregrifat aregyumln regulamumlfrac34 al-madhhab entitled TawshAcircfrac12 al-dAcircbumlj wa frac12ilyat al-ibtihumlj10 The number of references to him in laterMumllikAcirc fiqh-works attests to his status as a jurist and to his contribu-tions to the MumllikAcirc legal tradition11 The present work Kitumlb al-ibumlnah fAcirctimesifrac12frac12at isqumlszlig muml lam yajib min al-frac12aacuteumlnah was completed in the year9751567 when al-QarumlfAcirc was about thirty-four years old (in lunaryears thirty-six) He died in the year 10081599 at the age of sixty-six(sixty-nine lunar)12

IIIEcircEcircThe Modus Operandi of the OgravePost-Formative R gime of TaqlAcircdOacute

My use of the term Ogravepost-formativeOacute is a reference to the period inMuslim legal history that followed the so-called Ogravesettling down of the

9EcircEcircEcircSee below10EcircEcircEcircEd Afrac12mad al-ShitaywAcirc (Beirut Dumlr al-Gharb al-IslumlmAcirc 14031993)11EcircEcircEcircSee eg Afrac12mad al-NtildeumlwAcirc (d 12411825) Bulghat al-sumllik li aqrab al-

masumllik 2 vols (Cairo al-Maktabah al-TijumlrAcircyah al-Kubruml nd) 1457 291 andpassim

12EcircEcircEcircOn al-QarumlfAcircOtildes biography see Mufrac12ammad AmAcircn Faacutel Allumlh al-Mufrac12ibbAcircKhulumltimesat al-athar fAcirc aregyumln al-qarn al-frac12umldAcirc regashar 4 vols (Beirut Maktabat al-Khayyumlszlig nd) 4258-62

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 31

schools of lawOacute (istiqrumlr al-madhumlhib)13 The precise date of thisdevelopment which conferred mutual recognition upon the four Sunnischools remains a point of disagreement NJ Coulson was of theview that it occurred sometime around the end of the thirdninthcentury14 whereas J Schacht held that the process did not reach itsconsummation until sometime around 700130015 Between these twoextremes a number of scholars point to the end of the fiftheleventhcentury as the approximate date of the settling down of the fourschools This was the conclusion for example of G Makdisi16 andmore recently of C Melchert17 Makdisi observes that in his THORNabaqumltal-fuqahumlfrac34 which catalogues the names and school affiliations ofjurists whose legal pronouncements are to be considered in making andprecluding consensus the fiftheleventh century ShumlfiregAcirc jurist Abacirc Isfrac12umlqal-ShirumlzAcirc (d 4761083) cites only the frac14anafAcirc MumllikAcirc ShumlfiregAcirc frac14anbalAcircand oslashumlhirAcirc schools The last member of the oslashumlhirAcirc school died inBaghdumld in the year 4751082 which permanently reduced the numberof recognized SunnAcirc schools to four18 On this evidence by Ogravepost-formativeOacute I refer to the period beginning sometime around the end ofthe sixthtwelfth century following the settling down of the madhhabs

The net effect of the settling down of the madhhabs would gobeyond the mere establishment of mutual recognition among theschools of law In this new phase the madhhab would soon replace themujtahid as the primary19 Ocircunit of operationOtilde in Islamic law No longerwas the unfettered and independent ijtihumld of the individual mujtahidsufficient to confer authority upon an opinion (at least not among thecommunity of jurists) Authority was now mediated through theendorsement of the association of jurisconsults as a whole ie themadhhab The madhhab now defined the parameters within which allinterpretive activity took place Moreover no school as a general rule

13EcircEcircEcircThis phrase is used by al-MumlwardAcirc (d 4501058) in his Adab al-qaacuteumlfrac34 edMufrac12yAcirc Hilumll Sirfrac12umln 2 vols (Baghdumld al-Irshumld Press 13911971) 1645 where itseems clear that it has long ceased to be a neologism

14EcircEcircEcircSee A History of Islamic Law (Edinburgh Edinburgh University Press) 789 but see also 86-89

15EcircEcircEcircAn Introduction to Islamic Law (Oxford Clarendon Press 1964) 65 6716EcircEcircEcircSee his The Rise of Colleges Institutions of Learning in Islam and the West

(Edinburgh Edinburgh University Press 1981) 417EcircEcircEcircOgraveThe Formation of the Sunni Schools of Law Ninth-Tenth Centuries CEOacute

(PhD dissertation The University of Pennsylvania 1992) 33818EcircEcircEcircSee Makdisi Rise 4-519EcircEcircEcircSee Jackson State 77-78 where I explain that neither the r gime of ijtihumld

nor that of taqlAcircd exclusively preempted activity in the other direction Rather bothbecome dominant hegemonies at various points in Muslim history

32 SHERMAN A JACKSON

looked to any higher authority eg the consensus (ijmumlreg) of theCommunity to validate its views Indeed the madhab became in effectthe highest legal authority in Islam capable in this capacity ofindependently validating its own views

Concommitantly taqlAcircd which I regard as a cognate of the CommonLaw stare decisis20 emerges as the dominant hegemony It is throughtaqlAcircd that the madhhab was able to sustain itself and perpetuate schooldoctrine and jurists became bound to the strictures and operating rulesof the Ograver gime of taqlAcircdOacute By the time of al-QarumlfAcirc and Kitumlb al-ibumlnahthis modus operandi had been in operation for centuries and was fullyconstitutive of the status-quo

The cumulative stock of a madhhab under the r gime of taqlAcircdconsisted of views attributed to the eponym or early authorities withinthe school and views that were extrapolated or deduced by subsequentgenerations ostensibly on the basis thereof Because of disparity innarration on the authority of the early authorities and differences in theway in which subsequent scholars extrapolated from these views therecame to exist a multiplicity of views within a school Not all of thesehowever were of the same weight or status some were more authorita-tive than others These preferred views came under two primarydesignations mashhacircr and rumljifrac1221

The mashhacircr generally speaking implied numbers ie the viewthat enjoyed the greatest recognition within a school It was for allintents and purposes the Ogravegoing opinionOacute of the school at any giventime which all school members would have to recognize The rumljifrac12meanwhile was more a result of the individual juristOtildes scrutiny ie hischoice as an individual of one of the views from among thosecompeting for mashhacircr status or his considered opinion based on a

20EcircEcircEcircWith a number of qualifications of course perhaps the most importantbeing that jurists not simply judges represent the madhhab and determine theOgraveprecedentOacute to which both jurists and judges are bound It is also true that theobject of the juristsOtilde contemplation is largely doctrine rather than courtroomverdicts Yet the juristsOtilde discussion of overturning judicial rulings on substantivegrounds (naqacute al-frac12ukm) reveals the extent to which judges are bound by schoolOcircprecedentsOtilde Perhaps the propriety of equating taqlAcircd with stare decisis could betaken up in greater detail in a later installment

21EcircEcircEcircSee Jackson State 83-9 Many other terms are used to designate these sametwo categories eg al-muregtamad al-madhhab regalayhi al-fatwuml al-uacuteumlhir al-maregmacircl bihi al-mukhtumlr al-timesafrac12Acircfrac12 al-timesawumlb al-aqwuml al-auacutehar al-afrac12san In hisRadd al-mufrac12tumlr 170 the ninteenthcentury frac14anafAcirc jurist Ibn regcurrenbidAcircn says thatwhere he finds a view of his predecessors to be lacking he will simply cite his oranother view following the expression Ograveso take noteOacute (faOtildefham) which he says ismore respectful Cf however Mohammad Fadel OgraveThe Social Logic of TaqlAcircd andthe Rise of the Mukhtatimesar Islamic Law and Society 32 (1996) 193-233

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 31

schools of lawOacute (istiqrumlr al-madhumlhib)13 The precise date of thisdevelopment which conferred mutual recognition upon the four Sunnischools remains a point of disagreement NJ Coulson was of theview that it occurred sometime around the end of the thirdninthcentury14 whereas J Schacht held that the process did not reach itsconsummation until sometime around 700130015 Between these twoextremes a number of scholars point to the end of the fiftheleventhcentury as the approximate date of the settling down of the fourschools This was the conclusion for example of G Makdisi16 andmore recently of C Melchert17 Makdisi observes that in his THORNabaqumltal-fuqahumlfrac34 which catalogues the names and school affiliations ofjurists whose legal pronouncements are to be considered in making andprecluding consensus the fiftheleventh century ShumlfiregAcirc jurist Abacirc Isfrac12umlqal-ShirumlzAcirc (d 4761083) cites only the frac14anafAcirc MumllikAcirc ShumlfiregAcirc frac14anbalAcircand oslashumlhirAcirc schools The last member of the oslashumlhirAcirc school died inBaghdumld in the year 4751082 which permanently reduced the numberof recognized SunnAcirc schools to four18 On this evidence by Ogravepost-formativeOacute I refer to the period beginning sometime around the end ofthe sixthtwelfth century following the settling down of the madhhabs

The net effect of the settling down of the madhhabs would gobeyond the mere establishment of mutual recognition among theschools of law In this new phase the madhhab would soon replace themujtahid as the primary19 Ocircunit of operationOtilde in Islamic law No longerwas the unfettered and independent ijtihumld of the individual mujtahidsufficient to confer authority upon an opinion (at least not among thecommunity of jurists) Authority was now mediated through theendorsement of the association of jurisconsults as a whole ie themadhhab The madhhab now defined the parameters within which allinterpretive activity took place Moreover no school as a general rule

13EcircEcircEcircThis phrase is used by al-MumlwardAcirc (d 4501058) in his Adab al-qaacuteumlfrac34 edMufrac12yAcirc Hilumll Sirfrac12umln 2 vols (Baghdumld al-Irshumld Press 13911971) 1645 where itseems clear that it has long ceased to be a neologism

14EcircEcircEcircSee A History of Islamic Law (Edinburgh Edinburgh University Press) 789 but see also 86-89

15EcircEcircEcircAn Introduction to Islamic Law (Oxford Clarendon Press 1964) 65 6716EcircEcircEcircSee his The Rise of Colleges Institutions of Learning in Islam and the West

(Edinburgh Edinburgh University Press 1981) 417EcircEcircEcircOgraveThe Formation of the Sunni Schools of Law Ninth-Tenth Centuries CEOacute

(PhD dissertation The University of Pennsylvania 1992) 33818EcircEcircEcircSee Makdisi Rise 4-519EcircEcircEcircSee Jackson State 77-78 where I explain that neither the r gime of ijtihumld

nor that of taqlAcircd exclusively preempted activity in the other direction Rather bothbecome dominant hegemonies at various points in Muslim history

32 SHERMAN A JACKSON

looked to any higher authority eg the consensus (ijmumlreg) of theCommunity to validate its views Indeed the madhab became in effectthe highest legal authority in Islam capable in this capacity ofindependently validating its own views

Concommitantly taqlAcircd which I regard as a cognate of the CommonLaw stare decisis20 emerges as the dominant hegemony It is throughtaqlAcircd that the madhhab was able to sustain itself and perpetuate schooldoctrine and jurists became bound to the strictures and operating rulesof the Ograver gime of taqlAcircdOacute By the time of al-QarumlfAcirc and Kitumlb al-ibumlnahthis modus operandi had been in operation for centuries and was fullyconstitutive of the status-quo

The cumulative stock of a madhhab under the r gime of taqlAcircdconsisted of views attributed to the eponym or early authorities withinthe school and views that were extrapolated or deduced by subsequentgenerations ostensibly on the basis thereof Because of disparity innarration on the authority of the early authorities and differences in theway in which subsequent scholars extrapolated from these views therecame to exist a multiplicity of views within a school Not all of thesehowever were of the same weight or status some were more authorita-tive than others These preferred views came under two primarydesignations mashhacircr and rumljifrac1221

The mashhacircr generally speaking implied numbers ie the viewthat enjoyed the greatest recognition within a school It was for allintents and purposes the Ogravegoing opinionOacute of the school at any giventime which all school members would have to recognize The rumljifrac12meanwhile was more a result of the individual juristOtildes scrutiny ie hischoice as an individual of one of the views from among thosecompeting for mashhacircr status or his considered opinion based on a

20EcircEcircEcircWith a number of qualifications of course perhaps the most importantbeing that jurists not simply judges represent the madhhab and determine theOgraveprecedentOacute to which both jurists and judges are bound It is also true that theobject of the juristsOtilde contemplation is largely doctrine rather than courtroomverdicts Yet the juristsOtilde discussion of overturning judicial rulings on substantivegrounds (naqacute al-frac12ukm) reveals the extent to which judges are bound by schoolOcircprecedentsOtilde Perhaps the propriety of equating taqlAcircd with stare decisis could betaken up in greater detail in a later installment

21EcircEcircEcircSee Jackson State 83-9 Many other terms are used to designate these sametwo categories eg al-muregtamad al-madhhab regalayhi al-fatwuml al-uacuteumlhir al-maregmacircl bihi al-mukhtumlr al-timesafrac12Acircfrac12 al-timesawumlb al-aqwuml al-auacutehar al-afrac12san In hisRadd al-mufrac12tumlr 170 the ninteenthcentury frac14anafAcirc jurist Ibn regcurrenbidAcircn says thatwhere he finds a view of his predecessors to be lacking he will simply cite his oranother view following the expression Ograveso take noteOacute (faOtildefham) which he says ismore respectful Cf however Mohammad Fadel OgraveThe Social Logic of TaqlAcircd andthe Rise of the Mukhtatimesar Islamic Law and Society 32 (1996) 193-233

32 SHERMAN A JACKSON

looked to any higher authority eg the consensus (ijmumlreg) of theCommunity to validate its views Indeed the madhab became in effectthe highest legal authority in Islam capable in this capacity ofindependently validating its own views

Concommitantly taqlAcircd which I regard as a cognate of the CommonLaw stare decisis20 emerges as the dominant hegemony It is throughtaqlAcircd that the madhhab was able to sustain itself and perpetuate schooldoctrine and jurists became bound to the strictures and operating rulesof the Ograver gime of taqlAcircdOacute By the time of al-QarumlfAcirc and Kitumlb al-ibumlnahthis modus operandi had been in operation for centuries and was fullyconstitutive of the status-quo

The cumulative stock of a madhhab under the r gime of taqlAcircdconsisted of views attributed to the eponym or early authorities withinthe school and views that were extrapolated or deduced by subsequentgenerations ostensibly on the basis thereof Because of disparity innarration on the authority of the early authorities and differences in theway in which subsequent scholars extrapolated from these views therecame to exist a multiplicity of views within a school Not all of thesehowever were of the same weight or status some were more authorita-tive than others These preferred views came under two primarydesignations mashhacircr and rumljifrac1221

The mashhacircr generally speaking implied numbers ie the viewthat enjoyed the greatest recognition within a school It was for allintents and purposes the Ogravegoing opinionOacute of the school at any giventime which all school members would have to recognize The rumljifrac12meanwhile was more a result of the individual juristOtildes scrutiny ie hischoice as an individual of one of the views from among thosecompeting for mashhacircr status or his considered opinion based on a

20EcircEcircEcircWith a number of qualifications of course perhaps the most importantbeing that jurists not simply judges represent the madhhab and determine theOgraveprecedentOacute to which both jurists and judges are bound It is also true that theobject of the juristsOtilde contemplation is largely doctrine rather than courtroomverdicts Yet the juristsOtilde discussion of overturning judicial rulings on substantivegrounds (naqacute al-frac12ukm) reveals the extent to which judges are bound by schoolOcircprecedentsOtilde Perhaps the propriety of equating taqlAcircd with stare decisis could betaken up in greater detail in a later installment

21EcircEcircEcircSee Jackson State 83-9 Many other terms are used to designate these sametwo categories eg al-muregtamad al-madhhab regalayhi al-fatwuml al-uacuteumlhir al-maregmacircl bihi al-mukhtumlr al-timesafrac12Acircfrac12 al-timesawumlb al-aqwuml al-auacutehar al-afrac12san In hisRadd al-mufrac12tumlr 170 the ninteenthcentury frac14anafAcirc jurist Ibn regcurrenbidAcircn says thatwhere he finds a view of his predecessors to be lacking he will simply cite his oranother view following the expression Ograveso take noteOacute (faOtildefham) which he says ismore respectful Cf however Mohammad Fadel OgraveThe Social Logic of TaqlAcircd andthe Rise of the Mukhtatimesar Islamic Law and Society 32 (1996) 193-233

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 33

reconsideration of a matter in light of the primary sources (Qurfrac34umlnSunnah etc) This practice of selecting and nominating views wascommonly referred to as tarjAcircfrac12

The existence and function of these two categories underscores animportant feature of the overall operation of the r gime of taqlAcircdnamely a certain tension that existed between the individual jurist andthe association of jurisconsults as a whole In terms of the skills anddisciplines necessary to attain the rank of a recognized jurist there wasno decline between the standards invoked under the r gime of ijtihumldand those recognized under the r gime of taqlAcircd In fact the qualifica-tions of a jurist under the r gime of taqlAcircd were actually more stringentthan those recognized by the early mujtahids22 Yet when it came toprofessing his views on a particular legal issue the post-formativejurist had now to recognize the mashhacircr of the school at large Andwhere he found his view to be at variance with the going opinion hehad to find a way either to circumvent the incumbent view or to dis-lodge it eg by arguing that some other view was more deserving ofmashhacircr status or that more jurists had actually endorsed a competingview or that there was in fact no Ogravegoing opinionOacute on this particularissue and that some other source (eg custom matimeslafrac12ah or judicialpractice) was dispositive of the matter23 All of this came under thegeneral rubric of the above-mentioned tarjAcircfrac12 As we shall see it was acommon feature of the legal landscape in which al-QarumlfAcirc crafted hisfatwuml

IVEcircEcircSome Relevant Features of the MumllikAcirc Law of Child-Custody

According to MumllikAcirc law24 mothers have a preeminent right to custodyof their children males up to the time they reach puberty or acquire theability to live on their own females up to the time they marry25 This

22EcircEcircEcircFor more on this point see my State 45 94-9523EcircEcircEcircFor other examples of how jurists attempted to circumvent or displace the

mashhacircr see Jackson State 8824EcircEcircEcircI shall rely in this section on Safrac12nacircn b SaregAcircd al-TanacirckhAcirc (d 240854) al-

Mudawwanah al-kubruml Mufrac12ammad al-frac14aszligszligumlb (d 9531547) Mawumlhib al-jalAcircl lisharfrac12 mukhtatimesar khalAcircl 6 vols (Libya Maktabat al-Najumlh nd) Afrac12mad al-DardAcircr(d 12011786) al-Sharfrac12 al-kabAcircr (on the margin frac14umlshAcircyat al-dusacircqAcirc) Mufrac12ammadal-DusacircqAcirc (d 12301815) frac14umlshAcircyat al-dusacircqAcirc regaluml al-sharfrac12 al-kabAcircr 4 vols(Beirut Dumlr al-Fikr nd) This selection of sources will provide us with a sense ofthe permanency of these rules within the MumllikAcirc school over several centuries bothbefore and after al-QarumlfAcirc

25EcircEcircEcircSee Safrac12nacircn Mud 2244 2245 al-frac14aszligszligumlb Mawumlhib 4214 al-DusacircqAcircfrac14umlshAcircyat 2526 This contrasts the position of the frac14anafAcirc school which also

34 SHERMAN A JACKSON

applies even in the case of non-Muslim mothers of Muslim children26

though these mothers must not be known for trying to steer the childrenaway from Islam in which case Muslim OcircoverseersOtilde are to be dis-patched27 Fathers meanwhile remain financially responsible through-out the period of custody28 the going opinion (mutatis mutandis) evenobliging them to reimburse mothers for the childOtildes housing expenses29

Fathers have the right to visit their children and to be afforded sufficientaccess to ensure that the latter are disciplined and that they receive aproper education And the motherOtildes primary right to custody ispreserved only as long as she and the father maintain their residence inthe same city (or domicile) If either parent relocates (with the aim ofchanging his or her permanent residence) such that the distancebetween the child and the father would deny the father reasonableaccess to the child were the child to remain with the mother the right ofcustody reverts to the father30

Both parents are subject to a number of general qualifications Forexample they cannot be mentally impaired physically infirm muteblind or suffer from debilitating or infectious diseases They must beable to provide a safe environment especially for pubescent girls andthey must have a modicum of respect for the religious law eg theycannot be known for drinking adultery or illicit entertainment (lahw

awards mothers primary custody but gives fathers automatic custody of boys ataround the age of seven and girls at puberty See eg Ibn al-Humumlm Sharfrac12 fatfrac12al-qadAcircr 9 vols (Cairo Mutimesszligafuml al-BumlbAcirc al-frac14alabAcirc 13891970) 4371 IbnregcurrenbidAcircn Radd al-mufrac12tumlr 6267-68 Based on my experience with Muslimcommunities in the US it appears to be the common assumption that childrenmake a choice between their mother and father when they reach the age ofdistinction (tamyAcircz) usually set around seven years This is consistent with theShumlfiregAcirc position (See Shams al-DAcircn al-RamlAcirc Nihumlyat al-mufrac12tumlj 7231) It is alsothe position of the frac14anbalAcircs regarding boys girls automatically going to theirfathers at age seven (See al-MughnAcirc yalAcirchi al-sharfrac12 al-kabAcircr 14 vols (Beirut Dumlral-Kutub al-regIlmAcircyah nd) 9300-02)

26 EcircEcircEcircMud 2245-46 At one point Safrac12nacircn presses Ibn al-Qumlsim on thisquestion protesting that a Jewish or Christian mother might serve her Muslimchildren pork or wine To this Ibn al-Qumlsim replies that she could have done thisduring the time she was married to their father Ibid The frac14anafAcircs are in basicagreement with the MumllikAcircs (Ibn al-Humumlm Sharfrac12 4372 Radd al-mufrac12tumlr 6253-54) The ShumlfiregAcircs meanwhile and like them the frac14anbalAcircs do not allow non-Muslim mothers to assume custody of Muslim children For the ShumlfiregAcirc positionsee al-RamlAcirc Nihumlyat 7229 For the frac14anbalAcircs see Ibn Qudumlmah al-MughnAcirc10120-21

27EcircEcircEcircMud 2246 A premodern Muslim counterpart to Child Protective Services28EcircEcircEcircMud 2245 al-frac14aszligszligumlb Mawumlhib 4214 al-DardAcircr Sharfrac12 2526 al-

DusacircqAcirc frac14umlshAcircyat 252629EcircEcircEcircMud 2247 al-frac14aszligszligumlb Mawumlhib 4220 al-DardAcircr Sharfrac12 2533 al-

DusacircqAcirc frac14umlshAcircyat 253330EcircEcircEcircMud 2245 al-DardAcircr Sharfrac12 2531 al-DusacircqAcirc frac14umlshAcircyat 2531

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 35

mufrac12arram) Finally they must be financially responsible to the extentthat the child would not be subject to unnecessary harm31

The sequential order of custodians does not run from mother tofather In the event that a mother should die or be disqualified for someother reason custody of her child would pass to her mother (ie thechildOtildes maternal grandmother)32 According to the Mudawwanah afterthe maternal grandmother custody passes to the childOtildes maternal great-grandmother then the maternal aunt the paternal grandmother andonly then to the father33 Later MumllikAcirc tradition would modify this orderonly by placing additional female intermediaries between the child andthe father By the time we get to al-DardAcircr in the eighteenth century atleast three additional female custodians have been interpolated betweenthe maternal aunt and the father34 There were of course a number ofpossible exceptions to this order For example if a daughter reaches theage of marriage and her mother is either unwilling or unable to act in away that ensures the girlOtildes integrity the father may assume custody35

Generally speaking however the MumllikAcirc madhhab evinced a clear biasin favor of female relatives of a child36

This bias in favor of women finds its justification in the MumllikAcircinsistence that tenderheartedness (frac12anumln) and loving care (shafaqah)are primary considerations in child-custody cases Since women arebelieved to possess these qualities to a degree far greater than do menwomen are given primary consideration37 So central are tender-heartedness and loving care to the question of who gains custody of achild that al-DardAcircr and al-DusacircqAcirc insist (apparently as the mashhacircropinion) that custodial fathers must be able to provide female

31EcircEcircEcircal-frac14aszligszligumlb Mawumlhib 4216-17 al-DardAcircr Sharfrac12 2528-29 al-DusacircqAcircfrac14umlshiyat 2528-29 Cf Esposito Women 37 OgraveA woman loses custody of her childat any age if her behavior is immoral or if she gives the child poor careOacute Such astatement gives the false impression that standards of morality and competenceapply to women but not to men Meanwhile even in the frac14anafAcirc madhhab onwhich EspositoOtildes study is based men including fathers are subject to disqualifica-tion if the child is likely to suffer in their care See eg Ibn regAbidAcircn Radd al-mufrac12tumlr 6270

32EcircEcircEcircThe above cited rule governing changes in domicile is an exception albeit arather awkward one

33EcircEcircEcircMud 224534EcircEcircEcircal-DardAcircr al-Sharfrac12 al-kabAcircr 225735EcircEcircEcircMud 224436EcircEcircEcircThis is generally true of all the schools as regards the order of child

custodians It was only one (presumably weak) narration on the authority ofAfrac12mad b frac14anbal that led an apparent minority within the frac14anbalAcirc school to placethe father directly after the mother See al-MughnAcirc 10118 10120

37EcircEcircEcircSharfrac12 2529 According to al-DardAcircr OgraveMen simply do not have the patiencethat women have when it comes to dealing with childrenOacute Ibid

36 SHERMAN A JACKSON

supervision in the person of a wife a sister or even a governess38 Buta father had to be able to show that he could provide such supervisionotherwise he forfeited his right to custody

By far the most important requirement placed on mothers (at least inthe present context) had to do with their marital status A divorced orwidowed mother retained the right to custody only as long as sheremained unmarried If she remarried she forfeited that right39 In theearly period (still post-formative) the reason for this ban appears tohave been the fear that the new husband would be negatively predis-posed to the child Ibn Rushd the Elder (d 5201126) for examplestates that if the motherOtildes new husband is related to the child (eg acousin) her remarriage would not be a cause for her to forfeit custody40

The husbandOtildes blood relationship to the child in other words is as-sumed to preempt any possibility of neglect or abuse on his part Latersources however give the primary reason as being the fear that thechild would suffer neglect due to the motherOtildes preoccupation with hernew husband41 They cite a number of impediments to the applicationof this rule eg if the mother remarries someone related to the child orif the child will not nurse at the breast of anyone other than the motheror if the father (or other relative) waits longer than a year to claim hisright to custody42 Barring such circumstances as these this ruleremained in force Even if subsequent to her new marriage the motheris divorced or widowed her right to custody is not reinstated43 Mumllikjustified this latter rule by pointing out that the child would likely sufferfrom the instability inhering in the possibility of the mother remarryingand divorcing ad infinitum44 Later MumllikAcirc sources appear to add little tothis justification This rule retained mashhacircr status within the madhhabfor the better part if not the whole of the premodern period45

38EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 2529 Though my focus hasbeen on fathers (the issue with which al-QarumlfAcirc will be dealing) this stipulationapplied to all male custodians not just fathers

39EcircEcircEcircMud 224440EcircEcircEcircMuqaddim t ibn rushd (on the margin of al-Mudawwanah) 226141EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 252942EcircEcircEcircAl-DardAcircr Sharfrac12 2529-3043EcircEcircEcircMud 2244 See also al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyah 2534

The frac14anafAcircs and ShumlfiregAcircs meanwhile have a different position insisting that if themother is divorced from her new husband or the latter dies her right to custody isimmediately reinstated The ShumlfiregAcircs go to the point of insisting that if the motherOtildesnew husband (who has just divorced her) agrees the child returns to his motherOtildeshome during her regiddah See Shams al-DAcircn al-RamlAcirc Nihumlyat al-Mufrac12tumlj 7231Ibn al-Humumlm Sharfrac12 fatfrac12 al-qadAcircr 4370

44EcircEcircEcircMud 224445EcircEcircEcircAl-QarumlfAcirc cites a few dissenters to this view such as al-MughAcircrah b regAbd

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 37

VEcircEcircal-QarumlfAcircOtildes Fatwuml

aEcircEcircA Tacit OcircPlea-BargainOtilde

We turn now to al-QarumlfAcircOtildes fatwuml Prior to engaging his opponents onthe legal question proper al-QarumlfAcirc digresses in his opening segment tooffer what I take to have constituted a tacit Ocircplea-bargainOtilde of sorts Hisremarks in this regard provide some interesting insights into the socialcontext within which he crafted his fatwuml

Al-QarumlfAcirc begins with the question of whether custody (frac12aqq al-frac12aacuteumlnah) is a right that accrues to the mother (al-frac12umlacuteinah) or to thechild (al-mafrac12acuteacircn) The relevance of this question is at first blushdifficult to detect since on either assumption as al-QarumlfAcirc himselfacknowledges the child would end up with the mother But al-QarumlfAcircgoes on to explain that some MumllikAcirc authorities eg Ibn al-Mumljishacircn(d 212827) reasoned that since custody is really the right of the child(not the mother) the father is obligated both to compensate the motherfor caring for the child and to reimburse her for the childOtildes housingexpenses46 Now al-QarumlfAcirc does not want to be identified with the fullscope of Ibn al-MumljishacircnOtildes positionmdashlest he be branded an advocate ofexteme and irregular views47 But he does want to press the issue ofreimbursement for housing expenses To this end he cites no less anauthority than KhalAcircl b Isfrac12umlq (author of the authoritative Mukhtatimesar)to the effect that though the going opinion of the school was thatcustody is the right of the mother (as opposed to that of the child) it isalso the going opinion that fathers are obligated to reimburse mothersfor housing expenses48 Now the point in all of this seems to me to beas follows Fathers in tenthsixteenth century Cairo as a matter ofcustommdashand probably out of ignorancemdashnever reimbursed their ex-wives for their childrensOtilde housing expenses Al-QarumlfAcirc however wants

al-Rafrac12mumln al-MakhzacircmAcirc Ibn Dinumlr and Ibn AbAcirc frac14umlzim Ibumlnah 8346EcircEcircEcircAs stated above the mashacircr opinion in the MumllikAcirc school going all the way

back to Mumllik was that fathers are responsible for their childrensOtilde housing ex-penses later scholars generally arguing that such expenses are to be shared betweenthe two parents (see eg al-DardAcircr Sharfrac12 2533) On the question of remunerat-ing mothers for the actual care of the child the majority held that they were notentitled to any money See al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyat 2534

47EcircEcircEcircregAbd al-Malik Ibn al-Mumljishacircn was known to have held extreme andirregular views on a number of issues For example he held that a man couldmarry his daughter if she issued from an act of adultery or fornication (al-zinuml)because according to him she was legally not his daughter See Abacirc Bakr al-KishnumlwAcirc Ashal al-masumllik sharfrac12 irshumld al-sumllik fAcirc fiqh imumlm al-afrac34immah mumllik 3vols (Cairo regAacutesuml al-frac14alabAcirc nd) 278-79 This incidentally is also said to be theview of al-ShumlfiregAcirc

48EcircEcircEcircIbumlnah 39 41

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

34 SHERMAN A JACKSON

applies even in the case of non-Muslim mothers of Muslim children26

though these mothers must not be known for trying to steer the childrenaway from Islam in which case Muslim OcircoverseersOtilde are to be dis-patched27 Fathers meanwhile remain financially responsible through-out the period of custody28 the going opinion (mutatis mutandis) evenobliging them to reimburse mothers for the childOtildes housing expenses29

Fathers have the right to visit their children and to be afforded sufficientaccess to ensure that the latter are disciplined and that they receive aproper education And the motherOtildes primary right to custody ispreserved only as long as she and the father maintain their residence inthe same city (or domicile) If either parent relocates (with the aim ofchanging his or her permanent residence) such that the distancebetween the child and the father would deny the father reasonableaccess to the child were the child to remain with the mother the right ofcustody reverts to the father30

Both parents are subject to a number of general qualifications Forexample they cannot be mentally impaired physically infirm muteblind or suffer from debilitating or infectious diseases They must beable to provide a safe environment especially for pubescent girls andthey must have a modicum of respect for the religious law eg theycannot be known for drinking adultery or illicit entertainment (lahw

awards mothers primary custody but gives fathers automatic custody of boys ataround the age of seven and girls at puberty See eg Ibn al-Humumlm Sharfrac12 fatfrac12al-qadAcircr 9 vols (Cairo Mutimesszligafuml al-BumlbAcirc al-frac14alabAcirc 13891970) 4371 IbnregcurrenbidAcircn Radd al-mufrac12tumlr 6267-68 Based on my experience with Muslimcommunities in the US it appears to be the common assumption that childrenmake a choice between their mother and father when they reach the age ofdistinction (tamyAcircz) usually set around seven years This is consistent with theShumlfiregAcirc position (See Shams al-DAcircn al-RamlAcirc Nihumlyat al-mufrac12tumlj 7231) It is alsothe position of the frac14anbalAcircs regarding boys girls automatically going to theirfathers at age seven (See al-MughnAcirc yalAcirchi al-sharfrac12 al-kabAcircr 14 vols (Beirut Dumlral-Kutub al-regIlmAcircyah nd) 9300-02)

26 EcircEcircEcircMud 2245-46 At one point Safrac12nacircn presses Ibn al-Qumlsim on thisquestion protesting that a Jewish or Christian mother might serve her Muslimchildren pork or wine To this Ibn al-Qumlsim replies that she could have done thisduring the time she was married to their father Ibid The frac14anafAcircs are in basicagreement with the MumllikAcircs (Ibn al-Humumlm Sharfrac12 4372 Radd al-mufrac12tumlr 6253-54) The ShumlfiregAcircs meanwhile and like them the frac14anbalAcircs do not allow non-Muslim mothers to assume custody of Muslim children For the ShumlfiregAcirc positionsee al-RamlAcirc Nihumlyat 7229 For the frac14anbalAcircs see Ibn Qudumlmah al-MughnAcirc10120-21

27EcircEcircEcircMud 2246 A premodern Muslim counterpart to Child Protective Services28EcircEcircEcircMud 2245 al-frac14aszligszligumlb Mawumlhib 4214 al-DardAcircr Sharfrac12 2526 al-

DusacircqAcirc frac14umlshAcircyat 252629EcircEcircEcircMud 2247 al-frac14aszligszligumlb Mawumlhib 4220 al-DardAcircr Sharfrac12 2533 al-

DusacircqAcirc frac14umlshAcircyat 253330EcircEcircEcircMud 2245 al-DardAcircr Sharfrac12 2531 al-DusacircqAcirc frac14umlshAcircyat 2531

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 35

mufrac12arram) Finally they must be financially responsible to the extentthat the child would not be subject to unnecessary harm31

The sequential order of custodians does not run from mother tofather In the event that a mother should die or be disqualified for someother reason custody of her child would pass to her mother (ie thechildOtildes maternal grandmother)32 According to the Mudawwanah afterthe maternal grandmother custody passes to the childOtildes maternal great-grandmother then the maternal aunt the paternal grandmother andonly then to the father33 Later MumllikAcirc tradition would modify this orderonly by placing additional female intermediaries between the child andthe father By the time we get to al-DardAcircr in the eighteenth century atleast three additional female custodians have been interpolated betweenthe maternal aunt and the father34 There were of course a number ofpossible exceptions to this order For example if a daughter reaches theage of marriage and her mother is either unwilling or unable to act in away that ensures the girlOtildes integrity the father may assume custody35

Generally speaking however the MumllikAcirc madhhab evinced a clear biasin favor of female relatives of a child36

This bias in favor of women finds its justification in the MumllikAcircinsistence that tenderheartedness (frac12anumln) and loving care (shafaqah)are primary considerations in child-custody cases Since women arebelieved to possess these qualities to a degree far greater than do menwomen are given primary consideration37 So central are tender-heartedness and loving care to the question of who gains custody of achild that al-DardAcircr and al-DusacircqAcirc insist (apparently as the mashhacircropinion) that custodial fathers must be able to provide female

31EcircEcircEcircal-frac14aszligszligumlb Mawumlhib 4216-17 al-DardAcircr Sharfrac12 2528-29 al-DusacircqAcircfrac14umlshiyat 2528-29 Cf Esposito Women 37 OgraveA woman loses custody of her childat any age if her behavior is immoral or if she gives the child poor careOacute Such astatement gives the false impression that standards of morality and competenceapply to women but not to men Meanwhile even in the frac14anafAcirc madhhab onwhich EspositoOtildes study is based men including fathers are subject to disqualifica-tion if the child is likely to suffer in their care See eg Ibn regAbidAcircn Radd al-mufrac12tumlr 6270

32EcircEcircEcircThe above cited rule governing changes in domicile is an exception albeit arather awkward one

33EcircEcircEcircMud 224534EcircEcircEcircal-DardAcircr al-Sharfrac12 al-kabAcircr 225735EcircEcircEcircMud 224436EcircEcircEcircThis is generally true of all the schools as regards the order of child

custodians It was only one (presumably weak) narration on the authority ofAfrac12mad b frac14anbal that led an apparent minority within the frac14anbalAcirc school to placethe father directly after the mother See al-MughnAcirc 10118 10120

37EcircEcircEcircSharfrac12 2529 According to al-DardAcircr OgraveMen simply do not have the patiencethat women have when it comes to dealing with childrenOacute Ibid

36 SHERMAN A JACKSON

supervision in the person of a wife a sister or even a governess38 Buta father had to be able to show that he could provide such supervisionotherwise he forfeited his right to custody

By far the most important requirement placed on mothers (at least inthe present context) had to do with their marital status A divorced orwidowed mother retained the right to custody only as long as sheremained unmarried If she remarried she forfeited that right39 In theearly period (still post-formative) the reason for this ban appears tohave been the fear that the new husband would be negatively predis-posed to the child Ibn Rushd the Elder (d 5201126) for examplestates that if the motherOtildes new husband is related to the child (eg acousin) her remarriage would not be a cause for her to forfeit custody40

The husbandOtildes blood relationship to the child in other words is as-sumed to preempt any possibility of neglect or abuse on his part Latersources however give the primary reason as being the fear that thechild would suffer neglect due to the motherOtildes preoccupation with hernew husband41 They cite a number of impediments to the applicationof this rule eg if the mother remarries someone related to the child orif the child will not nurse at the breast of anyone other than the motheror if the father (or other relative) waits longer than a year to claim hisright to custody42 Barring such circumstances as these this ruleremained in force Even if subsequent to her new marriage the motheris divorced or widowed her right to custody is not reinstated43 Mumllikjustified this latter rule by pointing out that the child would likely sufferfrom the instability inhering in the possibility of the mother remarryingand divorcing ad infinitum44 Later MumllikAcirc sources appear to add little tothis justification This rule retained mashhacircr status within the madhhabfor the better part if not the whole of the premodern period45

38EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 2529 Though my focus hasbeen on fathers (the issue with which al-QarumlfAcirc will be dealing) this stipulationapplied to all male custodians not just fathers

39EcircEcircEcircMud 224440EcircEcircEcircMuqaddim t ibn rushd (on the margin of al-Mudawwanah) 226141EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 252942EcircEcircEcircAl-DardAcircr Sharfrac12 2529-3043EcircEcircEcircMud 2244 See also al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyah 2534

The frac14anafAcircs and ShumlfiregAcircs meanwhile have a different position insisting that if themother is divorced from her new husband or the latter dies her right to custody isimmediately reinstated The ShumlfiregAcircs go to the point of insisting that if the motherOtildesnew husband (who has just divorced her) agrees the child returns to his motherOtildeshome during her regiddah See Shams al-DAcircn al-RamlAcirc Nihumlyat al-Mufrac12tumlj 7231Ibn al-Humumlm Sharfrac12 fatfrac12 al-qadAcircr 4370

44EcircEcircEcircMud 224445EcircEcircEcircAl-QarumlfAcirc cites a few dissenters to this view such as al-MughAcircrah b regAbd

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 37

VEcircEcircal-QarumlfAcircOtildes Fatwuml

aEcircEcircA Tacit OcircPlea-BargainOtilde

We turn now to al-QarumlfAcircOtildes fatwuml Prior to engaging his opponents onthe legal question proper al-QarumlfAcirc digresses in his opening segment tooffer what I take to have constituted a tacit Ocircplea-bargainOtilde of sorts Hisremarks in this regard provide some interesting insights into the socialcontext within which he crafted his fatwuml

Al-QarumlfAcirc begins with the question of whether custody (frac12aqq al-frac12aacuteumlnah) is a right that accrues to the mother (al-frac12umlacuteinah) or to thechild (al-mafrac12acuteacircn) The relevance of this question is at first blushdifficult to detect since on either assumption as al-QarumlfAcirc himselfacknowledges the child would end up with the mother But al-QarumlfAcircgoes on to explain that some MumllikAcirc authorities eg Ibn al-Mumljishacircn(d 212827) reasoned that since custody is really the right of the child(not the mother) the father is obligated both to compensate the motherfor caring for the child and to reimburse her for the childOtildes housingexpenses46 Now al-QarumlfAcirc does not want to be identified with the fullscope of Ibn al-MumljishacircnOtildes positionmdashlest he be branded an advocate ofexteme and irregular views47 But he does want to press the issue ofreimbursement for housing expenses To this end he cites no less anauthority than KhalAcircl b Isfrac12umlq (author of the authoritative Mukhtatimesar)to the effect that though the going opinion of the school was thatcustody is the right of the mother (as opposed to that of the child) it isalso the going opinion that fathers are obligated to reimburse mothersfor housing expenses48 Now the point in all of this seems to me to beas follows Fathers in tenthsixteenth century Cairo as a matter ofcustommdashand probably out of ignorancemdashnever reimbursed their ex-wives for their childrensOtilde housing expenses Al-QarumlfAcirc however wants

al-Rafrac12mumln al-MakhzacircmAcirc Ibn Dinumlr and Ibn AbAcirc frac14umlzim Ibumlnah 8346EcircEcircEcircAs stated above the mashacircr opinion in the MumllikAcirc school going all the way

back to Mumllik was that fathers are responsible for their childrensOtilde housing ex-penses later scholars generally arguing that such expenses are to be shared betweenthe two parents (see eg al-DardAcircr Sharfrac12 2533) On the question of remunerat-ing mothers for the actual care of the child the majority held that they were notentitled to any money See al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyat 2534

47EcircEcircEcircregAbd al-Malik Ibn al-Mumljishacircn was known to have held extreme andirregular views on a number of issues For example he held that a man couldmarry his daughter if she issued from an act of adultery or fornication (al-zinuml)because according to him she was legally not his daughter See Abacirc Bakr al-KishnumlwAcirc Ashal al-masumllik sharfrac12 irshumld al-sumllik fAcirc fiqh imumlm al-afrac34immah mumllik 3vols (Cairo regAacutesuml al-frac14alabAcirc nd) 278-79 This incidentally is also said to be theview of al-ShumlfiregAcirc

48EcircEcircEcircIbumlnah 39 41

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 35

mufrac12arram) Finally they must be financially responsible to the extentthat the child would not be subject to unnecessary harm31

The sequential order of custodians does not run from mother tofather In the event that a mother should die or be disqualified for someother reason custody of her child would pass to her mother (ie thechildOtildes maternal grandmother)32 According to the Mudawwanah afterthe maternal grandmother custody passes to the childOtildes maternal great-grandmother then the maternal aunt the paternal grandmother andonly then to the father33 Later MumllikAcirc tradition would modify this orderonly by placing additional female intermediaries between the child andthe father By the time we get to al-DardAcircr in the eighteenth century atleast three additional female custodians have been interpolated betweenthe maternal aunt and the father34 There were of course a number ofpossible exceptions to this order For example if a daughter reaches theage of marriage and her mother is either unwilling or unable to act in away that ensures the girlOtildes integrity the father may assume custody35

Generally speaking however the MumllikAcirc madhhab evinced a clear biasin favor of female relatives of a child36

This bias in favor of women finds its justification in the MumllikAcircinsistence that tenderheartedness (frac12anumln) and loving care (shafaqah)are primary considerations in child-custody cases Since women arebelieved to possess these qualities to a degree far greater than do menwomen are given primary consideration37 So central are tender-heartedness and loving care to the question of who gains custody of achild that al-DardAcircr and al-DusacircqAcirc insist (apparently as the mashhacircropinion) that custodial fathers must be able to provide female

31EcircEcircEcircal-frac14aszligszligumlb Mawumlhib 4216-17 al-DardAcircr Sharfrac12 2528-29 al-DusacircqAcircfrac14umlshiyat 2528-29 Cf Esposito Women 37 OgraveA woman loses custody of her childat any age if her behavior is immoral or if she gives the child poor careOacute Such astatement gives the false impression that standards of morality and competenceapply to women but not to men Meanwhile even in the frac14anafAcirc madhhab onwhich EspositoOtildes study is based men including fathers are subject to disqualifica-tion if the child is likely to suffer in their care See eg Ibn regAbidAcircn Radd al-mufrac12tumlr 6270

32EcircEcircEcircThe above cited rule governing changes in domicile is an exception albeit arather awkward one

33EcircEcircEcircMud 224534EcircEcircEcircal-DardAcircr al-Sharfrac12 al-kabAcircr 225735EcircEcircEcircMud 224436EcircEcircEcircThis is generally true of all the schools as regards the order of child

custodians It was only one (presumably weak) narration on the authority ofAfrac12mad b frac14anbal that led an apparent minority within the frac14anbalAcirc school to placethe father directly after the mother See al-MughnAcirc 10118 10120

37EcircEcircEcircSharfrac12 2529 According to al-DardAcircr OgraveMen simply do not have the patiencethat women have when it comes to dealing with childrenOacute Ibid

36 SHERMAN A JACKSON

supervision in the person of a wife a sister or even a governess38 Buta father had to be able to show that he could provide such supervisionotherwise he forfeited his right to custody

By far the most important requirement placed on mothers (at least inthe present context) had to do with their marital status A divorced orwidowed mother retained the right to custody only as long as sheremained unmarried If she remarried she forfeited that right39 In theearly period (still post-formative) the reason for this ban appears tohave been the fear that the new husband would be negatively predis-posed to the child Ibn Rushd the Elder (d 5201126) for examplestates that if the motherOtildes new husband is related to the child (eg acousin) her remarriage would not be a cause for her to forfeit custody40

The husbandOtildes blood relationship to the child in other words is as-sumed to preempt any possibility of neglect or abuse on his part Latersources however give the primary reason as being the fear that thechild would suffer neglect due to the motherOtildes preoccupation with hernew husband41 They cite a number of impediments to the applicationof this rule eg if the mother remarries someone related to the child orif the child will not nurse at the breast of anyone other than the motheror if the father (or other relative) waits longer than a year to claim hisright to custody42 Barring such circumstances as these this ruleremained in force Even if subsequent to her new marriage the motheris divorced or widowed her right to custody is not reinstated43 Mumllikjustified this latter rule by pointing out that the child would likely sufferfrom the instability inhering in the possibility of the mother remarryingand divorcing ad infinitum44 Later MumllikAcirc sources appear to add little tothis justification This rule retained mashhacircr status within the madhhabfor the better part if not the whole of the premodern period45

38EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 2529 Though my focus hasbeen on fathers (the issue with which al-QarumlfAcirc will be dealing) this stipulationapplied to all male custodians not just fathers

39EcircEcircEcircMud 224440EcircEcircEcircMuqaddim t ibn rushd (on the margin of al-Mudawwanah) 226141EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 252942EcircEcircEcircAl-DardAcircr Sharfrac12 2529-3043EcircEcircEcircMud 2244 See also al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyah 2534

The frac14anafAcircs and ShumlfiregAcircs meanwhile have a different position insisting that if themother is divorced from her new husband or the latter dies her right to custody isimmediately reinstated The ShumlfiregAcircs go to the point of insisting that if the motherOtildesnew husband (who has just divorced her) agrees the child returns to his motherOtildeshome during her regiddah See Shams al-DAcircn al-RamlAcirc Nihumlyat al-Mufrac12tumlj 7231Ibn al-Humumlm Sharfrac12 fatfrac12 al-qadAcircr 4370

44EcircEcircEcircMud 224445EcircEcircEcircAl-QarumlfAcirc cites a few dissenters to this view such as al-MughAcircrah b regAbd

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 37

VEcircEcircal-QarumlfAcircOtildes Fatwuml

aEcircEcircA Tacit OcircPlea-BargainOtilde

We turn now to al-QarumlfAcircOtildes fatwuml Prior to engaging his opponents onthe legal question proper al-QarumlfAcirc digresses in his opening segment tooffer what I take to have constituted a tacit Ocircplea-bargainOtilde of sorts Hisremarks in this regard provide some interesting insights into the socialcontext within which he crafted his fatwuml

Al-QarumlfAcirc begins with the question of whether custody (frac12aqq al-frac12aacuteumlnah) is a right that accrues to the mother (al-frac12umlacuteinah) or to thechild (al-mafrac12acuteacircn) The relevance of this question is at first blushdifficult to detect since on either assumption as al-QarumlfAcirc himselfacknowledges the child would end up with the mother But al-QarumlfAcircgoes on to explain that some MumllikAcirc authorities eg Ibn al-Mumljishacircn(d 212827) reasoned that since custody is really the right of the child(not the mother) the father is obligated both to compensate the motherfor caring for the child and to reimburse her for the childOtildes housingexpenses46 Now al-QarumlfAcirc does not want to be identified with the fullscope of Ibn al-MumljishacircnOtildes positionmdashlest he be branded an advocate ofexteme and irregular views47 But he does want to press the issue ofreimbursement for housing expenses To this end he cites no less anauthority than KhalAcircl b Isfrac12umlq (author of the authoritative Mukhtatimesar)to the effect that though the going opinion of the school was thatcustody is the right of the mother (as opposed to that of the child) it isalso the going opinion that fathers are obligated to reimburse mothersfor housing expenses48 Now the point in all of this seems to me to beas follows Fathers in tenthsixteenth century Cairo as a matter ofcustommdashand probably out of ignorancemdashnever reimbursed their ex-wives for their childrensOtilde housing expenses Al-QarumlfAcirc however wants

al-Rafrac12mumln al-MakhzacircmAcirc Ibn Dinumlr and Ibn AbAcirc frac14umlzim Ibumlnah 8346EcircEcircEcircAs stated above the mashacircr opinion in the MumllikAcirc school going all the way

back to Mumllik was that fathers are responsible for their childrensOtilde housing ex-penses later scholars generally arguing that such expenses are to be shared betweenthe two parents (see eg al-DardAcircr Sharfrac12 2533) On the question of remunerat-ing mothers for the actual care of the child the majority held that they were notentitled to any money See al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyat 2534

47EcircEcircEcircregAbd al-Malik Ibn al-Mumljishacircn was known to have held extreme andirregular views on a number of issues For example he held that a man couldmarry his daughter if she issued from an act of adultery or fornication (al-zinuml)because according to him she was legally not his daughter See Abacirc Bakr al-KishnumlwAcirc Ashal al-masumllik sharfrac12 irshumld al-sumllik fAcirc fiqh imumlm al-afrac34immah mumllik 3vols (Cairo regAacutesuml al-frac14alabAcirc nd) 278-79 This incidentally is also said to be theview of al-ShumlfiregAcirc

48EcircEcircEcircIbumlnah 39 41

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

36 SHERMAN A JACKSON

supervision in the person of a wife a sister or even a governess38 Buta father had to be able to show that he could provide such supervisionotherwise he forfeited his right to custody

By far the most important requirement placed on mothers (at least inthe present context) had to do with their marital status A divorced orwidowed mother retained the right to custody only as long as sheremained unmarried If she remarried she forfeited that right39 In theearly period (still post-formative) the reason for this ban appears tohave been the fear that the new husband would be negatively predis-posed to the child Ibn Rushd the Elder (d 5201126) for examplestates that if the motherOtildes new husband is related to the child (eg acousin) her remarriage would not be a cause for her to forfeit custody40

The husbandOtildes blood relationship to the child in other words is as-sumed to preempt any possibility of neglect or abuse on his part Latersources however give the primary reason as being the fear that thechild would suffer neglect due to the motherOtildes preoccupation with hernew husband41 They cite a number of impediments to the applicationof this rule eg if the mother remarries someone related to the child orif the child will not nurse at the breast of anyone other than the motheror if the father (or other relative) waits longer than a year to claim hisright to custody42 Barring such circumstances as these this ruleremained in force Even if subsequent to her new marriage the motheris divorced or widowed her right to custody is not reinstated43 Mumllikjustified this latter rule by pointing out that the child would likely sufferfrom the instability inhering in the possibility of the mother remarryingand divorcing ad infinitum44 Later MumllikAcirc sources appear to add little tothis justification This rule retained mashhacircr status within the madhhabfor the better part if not the whole of the premodern period45

38EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 2529 Though my focus hasbeen on fathers (the issue with which al-QarumlfAcirc will be dealing) this stipulationapplied to all male custodians not just fathers

39EcircEcircEcircMud 224440EcircEcircEcircMuqaddim t ibn rushd (on the margin of al-Mudawwanah) 226141EcircEcircEcircAl-DardAcircr Sharfrac12 2529 al-DusacircqAcirc frac14umlshiyah 252942EcircEcircEcircAl-DardAcircr Sharfrac12 2529-3043EcircEcircEcircMud 2244 See also al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyah 2534

The frac14anafAcircs and ShumlfiregAcircs meanwhile have a different position insisting that if themother is divorced from her new husband or the latter dies her right to custody isimmediately reinstated The ShumlfiregAcircs go to the point of insisting that if the motherOtildesnew husband (who has just divorced her) agrees the child returns to his motherOtildeshome during her regiddah See Shams al-DAcircn al-RamlAcirc Nihumlyat al-Mufrac12tumlj 7231Ibn al-Humumlm Sharfrac12 fatfrac12 al-qadAcircr 4370

44EcircEcircEcircMud 224445EcircEcircEcircAl-QarumlfAcirc cites a few dissenters to this view such as al-MughAcircrah b regAbd

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 37

VEcircEcircal-QarumlfAcircOtildes Fatwuml

aEcircEcircA Tacit OcircPlea-BargainOtilde

We turn now to al-QarumlfAcircOtildes fatwuml Prior to engaging his opponents onthe legal question proper al-QarumlfAcirc digresses in his opening segment tooffer what I take to have constituted a tacit Ocircplea-bargainOtilde of sorts Hisremarks in this regard provide some interesting insights into the socialcontext within which he crafted his fatwuml

Al-QarumlfAcirc begins with the question of whether custody (frac12aqq al-frac12aacuteumlnah) is a right that accrues to the mother (al-frac12umlacuteinah) or to thechild (al-mafrac12acuteacircn) The relevance of this question is at first blushdifficult to detect since on either assumption as al-QarumlfAcirc himselfacknowledges the child would end up with the mother But al-QarumlfAcircgoes on to explain that some MumllikAcirc authorities eg Ibn al-Mumljishacircn(d 212827) reasoned that since custody is really the right of the child(not the mother) the father is obligated both to compensate the motherfor caring for the child and to reimburse her for the childOtildes housingexpenses46 Now al-QarumlfAcirc does not want to be identified with the fullscope of Ibn al-MumljishacircnOtildes positionmdashlest he be branded an advocate ofexteme and irregular views47 But he does want to press the issue ofreimbursement for housing expenses To this end he cites no less anauthority than KhalAcircl b Isfrac12umlq (author of the authoritative Mukhtatimesar)to the effect that though the going opinion of the school was thatcustody is the right of the mother (as opposed to that of the child) it isalso the going opinion that fathers are obligated to reimburse mothersfor housing expenses48 Now the point in all of this seems to me to beas follows Fathers in tenthsixteenth century Cairo as a matter ofcustommdashand probably out of ignorancemdashnever reimbursed their ex-wives for their childrensOtilde housing expenses Al-QarumlfAcirc however wants

al-Rafrac12mumln al-MakhzacircmAcirc Ibn Dinumlr and Ibn AbAcirc frac14umlzim Ibumlnah 8346EcircEcircEcircAs stated above the mashacircr opinion in the MumllikAcirc school going all the way

back to Mumllik was that fathers are responsible for their childrensOtilde housing ex-penses later scholars generally arguing that such expenses are to be shared betweenthe two parents (see eg al-DardAcircr Sharfrac12 2533) On the question of remunerat-ing mothers for the actual care of the child the majority held that they were notentitled to any money See al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyat 2534

47EcircEcircEcircregAbd al-Malik Ibn al-Mumljishacircn was known to have held extreme andirregular views on a number of issues For example he held that a man couldmarry his daughter if she issued from an act of adultery or fornication (al-zinuml)because according to him she was legally not his daughter See Abacirc Bakr al-KishnumlwAcirc Ashal al-masumllik sharfrac12 irshumld al-sumllik fAcirc fiqh imumlm al-afrac34immah mumllik 3vols (Cairo regAacutesuml al-frac14alabAcirc nd) 278-79 This incidentally is also said to be theview of al-ShumlfiregAcirc

48EcircEcircEcircIbumlnah 39 41

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 37

VEcircEcircal-QarumlfAcircOtildes Fatwuml

aEcircEcircA Tacit OcircPlea-BargainOtilde

We turn now to al-QarumlfAcircOtildes fatwuml Prior to engaging his opponents onthe legal question proper al-QarumlfAcirc digresses in his opening segment tooffer what I take to have constituted a tacit Ocircplea-bargainOtilde of sorts Hisremarks in this regard provide some interesting insights into the socialcontext within which he crafted his fatwuml

Al-QarumlfAcirc begins with the question of whether custody (frac12aqq al-frac12aacuteumlnah) is a right that accrues to the mother (al-frac12umlacuteinah) or to thechild (al-mafrac12acuteacircn) The relevance of this question is at first blushdifficult to detect since on either assumption as al-QarumlfAcirc himselfacknowledges the child would end up with the mother But al-QarumlfAcircgoes on to explain that some MumllikAcirc authorities eg Ibn al-Mumljishacircn(d 212827) reasoned that since custody is really the right of the child(not the mother) the father is obligated both to compensate the motherfor caring for the child and to reimburse her for the childOtildes housingexpenses46 Now al-QarumlfAcirc does not want to be identified with the fullscope of Ibn al-MumljishacircnOtildes positionmdashlest he be branded an advocate ofexteme and irregular views47 But he does want to press the issue ofreimbursement for housing expenses To this end he cites no less anauthority than KhalAcircl b Isfrac12umlq (author of the authoritative Mukhtatimesar)to the effect that though the going opinion of the school was thatcustody is the right of the mother (as opposed to that of the child) it isalso the going opinion that fathers are obligated to reimburse mothersfor housing expenses48 Now the point in all of this seems to me to beas follows Fathers in tenthsixteenth century Cairo as a matter ofcustommdashand probably out of ignorancemdashnever reimbursed their ex-wives for their childrensOtilde housing expenses Al-QarumlfAcirc however wants

al-Rafrac12mumln al-MakhzacircmAcirc Ibn Dinumlr and Ibn AbAcirc frac14umlzim Ibumlnah 8346EcircEcircEcircAs stated above the mashacircr opinion in the MumllikAcirc school going all the way

back to Mumllik was that fathers are responsible for their childrensOtilde housing ex-penses later scholars generally arguing that such expenses are to be shared betweenthe two parents (see eg al-DardAcircr Sharfrac12 2533) On the question of remunerat-ing mothers for the actual care of the child the majority held that they were notentitled to any money See al-DardAcircr Sharfrac12 2534 al-DusacircqAcirc frac14umlshiyat 2534

47EcircEcircEcircregAbd al-Malik Ibn al-Mumljishacircn was known to have held extreme andirregular views on a number of issues For example he held that a man couldmarry his daughter if she issued from an act of adultery or fornication (al-zinuml)because according to him she was legally not his daughter See Abacirc Bakr al-KishnumlwAcirc Ashal al-masumllik sharfrac12 irshumld al-sumllik fAcirc fiqh imumlm al-afrac34immah mumllik 3vols (Cairo regAacutesuml al-frac14alabAcirc nd) 278-79 This incidentally is also said to be theview of al-ShumlfiregAcirc

48EcircEcircEcircIbumlnah 39 41

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

38 SHERMAN A JACKSON

to remind them that there are grounds for holding them legally respons-ible for doing so and that as such they should not antagonize theirformer spousesmdashby threatening to take their childrenmdashlest the latterreciprocate with a demand for payment for housing expenses (whichjudge Badr al-DAcircn al-QarumlfAcirc would duly recognize and enforce) Inother words al-QarumlfAcircOtildes opening statement is a tacit appeal to thefathers in question to drop their petitions for custody of their children inexchange for their ex-wivesOtilde non-pursuit of reimbursement for housingcosts

The fact that fathersmdashand apparently mothers as wellmdashin tenthsixteenth century Cairo were unaware of their obligation to remuneratetheir ex-wives for housing their children raises some interestingquestions about the effectiveness of the mechanisms relied upon fordisseminating knowledge of the law in Muslim society (We will seeanother instance of this in connection with the issue of the sequentialorder of custodians) While a full treatment of such questions fallsoutside the scope of the present study the fact that both mothers andfathers in this case appear to have been ignorant of this fundamental(and as it turns out universally agreed upon [mujmareg regalayh]) provisionraises an interesting point about the oft-debated issue of the disparitybetween the doctrine and practice of Islamic law What we arereminded of in the present case is that while disparity between doctrineand practice can be the result of a societyOtildes lack of commitment toapplying the law it can also be due to a simple lack of education andthe fact that knowledge of some of the more intricate details of the lawis limited to specialists The more sophisticated a legal system is themore likely the latter is to be a factor contributing to disparity betweendoctrine and practice especially in situations such as that of pre-modern Islam where the intricacy and sophistication of the legalsystem far outstripped the scope and availability of general educationThis is not to suggest that ignorance tells the whole story and thatcorruption disregard for the law or psychological attachment to alienlegal norms have no place in the discussion It is to suggest rather thatwe be clear about what we are talking about when we speak of the dis-parity between doctrine and practice and that we consider all possibleexplanations for this phenomenon which is by no means limited toIslamic law49

49EcircEcircEcircIn the city of Ypsilanti whose city-limit begins literally three blocks fromwhere I live in Ann Arbor juvenile curfew laws are frequently violated by youthfrom Ann Arbor This is not because Ann Arbor youth have no regard for the law

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

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to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 39

bEcircEcircThe Legal Argument Proper

It bears reiterating that al-QarumlfAcircOtildes strategy and manner of proceedingis comprehensible only in light of what has been said above about themodus operandi of the post-formative r gime of taqlAcircd Unlike modernlegislative bodies that have the authority to abolish existing law theMuslim jurist particularly under the r gime of taqlAcircd had to contendwith the putative fiction that existing law represented the eternal will ofGod It is in the context of this reality that what I call Ogravelegal scaffold-ingOacute takes on its ultimate value and significance Al-QarumlfAcircOtildes task is notas simple as re-interpreting the Qurregumln and frac12adAcircth to the end ofproducing a law of child custody that is Ocircmore suitableOtilde to the presentcircumstances His task rather is to reconcile his position in the presentdispute with the standing rules of the MumllikAcirc madhhab ie to cast hisposition in terms that highlight its genetic links to the MumllikAcirc legaltradition Only in this way is his position likely to gain the assent of theschool at large which again is the ultimate aim of the post-formativejurist

Al-QarumlfAcircOtildes approach can be summarized as follows The positionof his opponents rests on a legal precept (qumlregidah) governing prematureforfeiture of contingent rights (isqumlszlig al-frac12aqq qabla wujacircbih) which theyclaim enjoys mashhacircr status within the MumllikAcirc madhhab Al-QarumlfAcircwants first and foremost to establish that while the precept upon whichhis opponents base their position does have a legitimate claim to mash-hacircr status it can claim only what I shall refer to as Ograveweak mashhacircr-statusOacute ie as one among a number of competing views all of whichhave been supported by major authorities within the madhhab atvarious points in time In other words there is no consensus on thismatter within the madhhab and as such mashhacircr status remains opento an on-going competition Now the success of al-QarumlfAcircOtildes campaignis clearly contingent upon how convincingly he can argue this pointHis effort in this regard thus consumes upwards of fifty-six out of theseventy-seven pages of his fatwuml In the end having successfullyreopened the question of what the mashhacircr is al-QarumlfAcirc introduceslocal custom and judicial practice as dispositive elements in support ofhis position There are a few other side-issues taken up in support ofhis argument along the way But this is the main thrust of al-QarumlfAcircOtildes

This is due rather to the fact that very few people know that the weekday curfewin Ann Arbor is 1100 pm whereas in Ypsilanti it is 1015 pm Youth from AnnArbor routinely drive their cars between Ann Arbor and Ypsilanti on theassumption that the curfew is the same in both cities

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

40 SHERMAN A JACKSON

campaign which leads to the following declaration near the end of thefatwuml

In conclusion (al-khumltimah) we may say in summary that custody isthe right of the custodial parent [not the child] according to the goingopinion (mashhacircr) of the madhhab and that [the bindingness of anagreement] to forfeit prematurely a contingent right is a matter ofdisagreement (mukhtalaf fih) [ie within the madhhab] and that thefatwuml customarily given (alladhAcirc regalayhi Ocircl-fatwuml) and the positioncustomarily taken by the courts (al-regamal) regarding the question underreview namely forfeiture by a potential custodian of his right tocustody before that right accrues to him is [that such forfeiture is]binding50

1 OgraveIsqumlszlig al-frac14aqq Qabla WujacircbihOacuteThe above conclusion could be reached only after al-QarumlfAcirc hadsuccessfully confronted and overcome at least two doctrinal obstacleswithin the madhhab The first and by far the most formidable was theaforementioned legal precept (qumlregidah) governing premature forfeitureof contingent (as opposed to vested) rights (isqumlszlig al-frac12aqq qablawujacircbih) According to this rule a person could not forfeit or giveaway a right before that right had actually accrued to him In thepresent case this meant that the fathers in question are not bound bytheir initial agreements because these agreements entailed the forfeitureof rights that were contingent upon occurences that have not yettranspired In other words the fatherOtildes right to custody is contingentupon his former wifeOtildes remarriage which had not yet occured at thetime he agreed to forego custody As such the right to forfeiture hadnot yet accrued to him and it was thus not his to give away Thisrendered any such act of forfeiture on his part null and void This wasthe argument adduced by al-QarumlfAcircOtildes opponents a position bolstered bythe fact that a number of prominent near contemporary leaders withinthe madhhab had endorsed this view as the mashhacircr51

Part of al-QarumlfAcircOtildes problem resided in the fact that the legal preceptisqumlszlig al-frac12aqq qabla wujacircbih initially had been invoked in support ofmothers in child-custody disputes In his commentary on MukhtatimesarkhalAcircl al-QarumlfAcircOtildes older contemporary Mufrac12ammad al-frac14aszligszligumlb (d 9531547) cites this precept as the basis for demanding that a womanOtildeschildren be returned to her in cases of khulreg if her husband had

50EcircEcircEcircIbumlnah 9851EcircEcircEcircIbid 43ff

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 41

demanded custody as a partial payment in exchange for releasing herfrom their marriage Since the argument ran custody was not themotherOtildes right to forfeit while the couple were still married thisforfeiture was not enforceable after the couple had parted52 Nowhowever circumstances had changed and the consistent application ofthis once Ocircfemale-friendlyOtilde precept was yielding results detrimental towomen Indeed this same precept was being invoked to deny mothersthe right to retain prematurely forfeited custody of their children Inorder to succeed in his mission al-QarumlfAcirc would have to find a wayaround this precept (or at least his opponentsOtilde application of it) withoutgiving the appearance of going against the tradition of his school

2EcircEcircConfronting the Claimed Mashhacircr of the MadhhabAl-QarumlfiOtildes first order of business was to confront his opponentsOtildeclaim regarding the proper application of the rule governing prematureforfeiture of contingent rights He prefaces his campaign by acknow-ledging that the question under review falls within the scope of thisprecept He cites several well-known questions (masumlfrac34ilsg masfrac34alah)in the madhhab that have been treated under its provisions Then inorder to preempt any charges that he is a maverick who is not readingfrom the same sheet as everyone else he quotes the text of a mnemonicOcircpoemOtilde by the ninthfifteenth century MumllikAcirc jurist Abacirc Bakr al-Damuml-mAcircnAcirc (d 8271425) Al-DamumlmAcircnAcircOtildes poem represents an importantgenre53 about which I am not prepared to say much beyond thesuggestion that these OcircpoemsOtilde were used as school-texts that studentsmemorized on their way to becoming jurists They could be written by amaster54 or by some lesser jurisconsult within the school and thenratified by a master Once completed however these mnemonic poemsappear to have served the dual function of (1) settling inter-school dis-agreement and (2) providing students with an easy tool for memorizingwhat had become the mashhacircr or school doctrine as a result of thecumulative discourse within the madhhab These pr cis would beupdated from time to time as old mashhacircrs were displaced by newones But until such time that a master (or a proteg ) took up the task ofrevision an incumbent poem would generally be assumed to carry the

52EcircEcircEcircMawumlhib 421853EcircEcircEcircThese OcircpoemsOtilde appear to be a later development This genre deserves

however an in-depth study in terms of its history its function and its impact onthe course of legal education and practice

54EcircEcircEcircOn informal ranks within the madhhab and its function see my State 89-99

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

42 SHERMAN A JACKSON

weight of school-doctrine and reflected the views to which all schoolmembers would be expected to pay homage

Now al-DamumlmAcircnAcircOtildes poem included the acknowledgment that therewas disagreement within the madhhab over the precise application ofthe rule governing premature forfeiture of contingent rights some rightsbeing generally recognized as being forfeitable even before theyaccrued55 It had been al-DamumlmAcircnAcircOtildes intent however to resolve thisdisagreement and to establish what was to be accepted as the goingopinion of the school To this end his poem included a list of all thoseinstances in which forfeiture prior to maturity was not enforceable Theninth line of his poem reads

The forfeiter of the right of custody before it accruesThis is the ruling [ie that it is not enforceable]so beware of the claims of prevaricators(wa musqiszligu frac12aqqin liOtildel-frac12aacuteumlnati lam yajibkadh frac12ukmuhu faOtildefrac12dhar maqumllata fik)56

Al-QarumlfAcirc cited al-DamumlmAcircnAcircOtildes poem on the authority of Mufrac12ammad bIbrumlhAcircm al-Tatumlfrac34Acirc himself a chief judge who died in the year 9421535Not only had al-Tatumlfrac34Acirc been a leading authority in the MumllikAcirc school buthis proximity to al-QarumlfAcircOtildes generation made it virtually impossible toignore his endorsement Al-QarumlfAcircOtildes locution intimates that he perceivedal-Tatumlifrac34Acirc to be a far greater threat than al-DamumlmAcircnAcirc a fact most pro-minently reflected in some of the rather irreverent criticisms he directstowards al-Tatumlfrac34Acirc57 Part of the reason behind this attitude towards al-Tatumlfrac34Acirc appears to be that in addition to citing al-DamumlmAcircnAcircOtildes poem insupport of the view that premature forfeiture of contingent custody-rights was unenforceable al-Tatumlfrac34Acirc had cited another poem on theauthority of another MumllikAcirc jurist Jamumll al-DAcircn al-AqfahsAcirc (d8231420) which al-Tatumlfrac34Acirc claimed was the definitive summation of theposition of the MumllikAcirc school at large This connoted an ersatzunanimity that further complicated matters for al-QarumlfAcirc In al-Tatumlfrac34AcircOtildespoem we read the following

55EcircEcircEcircThe two best-known cases are paying obligatory alms (zakumlt) before the turnof the full-year cycle (frac12awl) and expiating for oaths before they have actually beenbroken On these two see Ibumlnah 65-67 al-ShumlszligibAcirc al-Muwumlfaqumlt 1269ff

56EcircEcircEcircIbumlnah 44 Though negation of enforceability does appear from the segmentquoted this is clearly established by the context set by the previous verses

57EcircEcircEcircAt one point for example he points out glibbly that a part of al-Tatumlifrac34AcircOtildespoem is redundant referring to it in a rather hostile tone as Ogravefrac12ashw Ograve Ibid 45

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 43

The going opinion regarding all of these questionsIs that premature forfeiture is not enforceableso take the position of Mumllik(regaluml anna mashhacircr al-masumlfrac34ili kullihumlsuqacircszligu luzacircmin faregtamid qawla Mumllik)

Al-Tatumlfrac34Acirc had been a towering figure within the MumllikAcirc school Throughthe likes of him al-DamumlmAcircnAcirc and al-AqfahsAcirc the cumulative positionof the MumllikAcirc madhhab on the correct application of the rule governingpremature forfeiture of contingent rights had crystalized into a veritableconsensus that would provide al-QarumlfAcircOtildes opponents with a solid basisfor denying the mothers in the present dispute the right to retain custodyof their children The view of his opponents was clearly incumbent andit carried the immoveable authority of the madhhab at large It washere in the face of this formidable reality that al-QarumlfAcirc would have todig in and mount his counter-offensive He proceeded by firstdisassembling the position of the madhhab and then reconstructing anew position which he fortified through vertical and horizontal appealsto other recognized sources and authorities within the madhhab

3EcircEcircAl-QarumlfAcircOtildes CounterAl-QarumlfAcirc began his counter-offensive by insisting that the position ofal-AqfahsAcirc and al-Tatumlfrac34Acirc was an overgeneralization that failed to takeinto account known exceptions to the general application of the rule onpremature forfeiture of contingent rights Pursuant to proving thischarge he catalogues in verse and then commentary some thirtyquestions in the MumllikAcirc school on which there is standing disagreementover the application of this rule or on which the mashhacircr is actuallythat premature forfeiture of a contingent right is enforceable Al-QarumlfAcircOtildes list includes the following1EcircEcirca relative forfeiting the right to preemption (shufregah) before theactual sale2EcircEcircan heir forfeiting the right to inheritance while the testator is stillalive3EcircEcircimplementing a testatorOtildes bequest (watimesAcircyah) while the latter is stillalive4EcircEcirca testator making a deathbed bequest with the other heirsOtildepermission5EcircEcirca wife giving up days to a co-wife6EcircEcirca female slave declaring (prior to manumission) whether uponmanumission she will remain with her present husband

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

44 SHERMAN A JACKSON

7EcircEcirca man stating to his wife If I take an additional wife you maychoose to stay or not8EcircEcircforfeiting the right to custody before it matures9EcircEcirca personOtildes stating to another If you kill me you are pardoned10EcircEcirca wife forfeiting her right to future maintenance by her husband11EcircEcirca woman forfeiting her bride-price before consummating themarriage12EcircEcirca person pardoning another for inflicting wounds before they areinflicted13EcircEcircsetting aside one among a number of conditions mentioned in acontract14EcircEcirca wife reversing absolution of her husbandOtildes promise not to marrywithout her permission15EcircEcirca testator going back on a bequest (watimesAcircyah) before dying16EcircEcircrefusing a bequest during a testatorOtildes life and then returning toclaim it after his death17EcircEcirca blood-relative pardoning a (potential) murderer before the actualmurder18EcircEcircpardoning a slanderer (qumldhif) before he actually slanders19EcircEcircexpiating for broken oaths before they are actually broken20EcircEcircpaying obligatory alms before the completion of the full-year cycle(frac12awl)21EcircEcirca buyer or debtor relieving a seller or creditor of taking oaths incourt in the event of a dispute22EcircEcirca master freeing a slave-girl on the condition that she marry him23EcircEcirca buyer forfeiting warranty rights at time of sale24EcircEcirca buyer forfeiting Ograveacts of God (jumlfrac34ifrac12ah)Oacute liability protection at timeof contract25EcircEcirca buyer forfeiting the right to a three-day warranty (on slaves)26EcircEcirca creditor delaying acceptance of payment by a guarantor (kafAcircl)27EcircEcirca creditor refusing liability for collateral left in his possession28EcircEcirca borrower (eg of utensils) refusing to accept liability for them29EcircEcirca craftsman refusing to accept liability for goods left in hispossession30EcircEcirca transporter insisting on being absolved of liability beforedelivery

All of these examples bear on the issue of forfeiting contingent rightsbefore they have accrued Take for example 29 A craftsmanOtildes(timesumlnireg) refusal at the time of contract to accept liability for a good left inhis possession entails the property ownerOtildes forfeiture of the right to

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 45

liability protection before that right has accrued to him Under MumllikAcirclaw craftsmen are bound by an implicit automatic stipulation ofliability for any damage to goods left in their possession A customermay forfeit this right after any damage has occurred and after he hasaccepted the original right to liability protection as an implied warrantyinherent in the contract But whether he can forfeit that right before suchtime was a point of disagreement clearly indicating that there had beendifferent constructions of the precept Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute

Again al-QarumlfAcircOtildes aim in citing these examples was to free hisaudience from the clutches of the claim by al-Tatumlfrac34Acirc al-AqfahsAcirc and al-DamumlmAcircnAcirc to the effect that the mashhacircr of the madhhab supported theposition of the fathers in the present dispute The first nine of theseentries are actually taken from the poem of al-DamumlmAcircni In the case ofall nine al-QarumlfAcirc adduces evidence to prove that there was a standingdisagreement (khilumlf) within the madhhab The next four examples (10through 13) are from the poem by al-Tatumlfrac34Acirc Here too al-QarumlfAcircprovides evidence to the effect that every single one of these questionswas a point of disagreement The remaining seventeen specimens (14through 30) are all al-QarumlfAcircOtildes own Here however his aim is tomove beyond the simple claim that there is disagreement in themadhhab to establish the fact that in a significant number of cases themadhhab actually holds premature forfeiture to be both binding andenforceable Interestingly none of al-QarumlfAcircOtildes specimens (14 through30) are claimed to be the object of school-consensus Some of thesequestions apparently generated very little discussion within themadhhab and are thus disposed of in just a few lines58 The majorityhowever were vigorously disputed and al-QarumlfAcirc is forced to make asubstantial investment in tarjAcircfrac12 (declaring a view to be rumljifrac12) in order toadvantage the view that recognizes premature forfeiture

In executing his tarjAcircfrac12 al-QarumlfAcirc shows himself to be a clever andhard-nosed advocate who understands not only the legal but also thepsychological dimensions of his craft In a number of these exampleshe argues his point via the tacit proposition that if one wishes to hold toa strict prohibition of all acts of premature forfeiture of contingentrights one will have to relinquish a number of valuable options thatone presently enjoys Some of these options are sensitive and emotion-ally charged Indeed one gets the sense that this appeal to emotion andpersonal interest was integral to al-QarumlfAcircOtildes strategy overall

58EcircEcircEcircSee eg Ibumlnah 64 65

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

46 SHERMAN A JACKSON

The clearest example of al-QarumlfAcircOtildes two-pronged legal-psycho-logical approach is the fourteenth and longest of his thirty specimensThis example treats the matter of a man who has included in hismarriage contract a stipulation (sharszlig) to the effect that if he takes anadditional wife his present wife has the right to initiate a divorce Atsome point however prior to his taking an additional wife his presentwife voluntarily forfeits her contingent right to divorce When subse-quently her husband actually takes an additional wife the questionarises whether the first wife can revoke her earlier forfeiture and returnto the original stipulation that empowered her to terminate the marriageNow this question falls under the same precept as the question ofhusbands going back on their child-custody agreements In this casethe womanOtildes right to terminate the marriage does not accrue to her untilher husband actually takes on an additional wife Therefore her forfeit-ure of that right prior to his additional marriage constitutes a case ofisqumlszlig al-frac12aqq qabla wujacircbih Now as far as the legal issue goes al-QarumlfAcirc indicates that this question had been disputed (mukhtalaf fih)within the madhhab several early authorities eg Ashhab Ibn frac14abAcircband Safrac12nacircn upholding the womanOtildes right to go back on her initial actof forfeiture59 This I take however to be little more than a scare-tacticon al-QarumlfAcircOtildes part designed to send the message that if he wants touphold the womanOtildes right to initiate divorce there is ample precedent inthe madhhab to support him The opposite opinion however wassupported by the likes of Mumllik Ibn al-Qumlsim al-MutayyiszligAcirc (d5701174) Ibn regArafah (d 8031401) and Ibn Rushd the Elder all ofwhom held that the woman was bound by her act of forfeiture60 Thislatter position was also adopted by the elder contemporary the greatNumltimesir al-DAcircn al-LaqqumlnAcirc (d 9581551) whose status among contempo-rary MumllikAcirc jurists is reflected in al-QarumlfAcircOtildes reference to him as Ograveshaykhshuyacirckhinuml (the teacher of our teachers)Oacute61 Al-LaqqumlnAcircOtildes endorsementalong with that of Mumllik Ibn al-Qumlsim and those who joined themwould make clean work of al-QarumlfAcircOtildes effort to sustain this position asthe mashhacircr (which is why I say that his citing the first position wasmerely a scare-tactic) On another level however it could hardly belost on al-QarumlfAcirc that most men in his society given their concupiscibleinterests would be inclined to hold the woman in question to her act of

59EcircEcircEcircIbid 59-6060EcircEcircEcircIbid 60-6161EcircEcircEcircIbid 60

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 47

forfeiture which would deny her the right to terminate her marriage inthe event that her husband took on an additional wife In order to dothis however these men would have to endorse the position that atleast some contingent rights were subject to forfeiture before theymature This needless to say puts them exactly where al-QarumlfAcirc wantsthem since it breaks the necessity of a strict application of thepremature-forfeiture rule In the end al-QarumlfAcirc is able to achieve victoryon both the legal and the psychological fronts Psychologically he isable to draw his male colleagues into identifying with his line of legalreasoning Legally he is able to establish the propriety of this reason-ing by linking it to unimpeachable authorities within the MumllikAcirc school

4EcircEcircRemarried Mothers and the Sequential Order of CustodiansFollowing his treatment of the thirty examples he cites al-QarumlfAcirc moveson to the second doctrinal obstacle in the MumllikAcirc school namely therule that divorced or widowed women forfeit their right to custody uponentering into a new marriage Here again al-QarumlfAcirc accepts the rulebut goes on to argue that it does not give the husbands in question theright they claim His discussion here is again interesting for the light itpossibly sheds on the social situation in tenthsixteenth century Cairo Itsuggests that with regard to certain aspects of child-custody popularnotions of propriety contrasted sharply with universally agreed-upon(mujmareg regalayh) rules of law

As indicated above the standard position in the MumllikAcirc school is thatwhile mothers are first in line among those who have a right to custodythey are not succeeded in this position by fathers Rather if a motherdies becomes unqualified or remarries custody passes to her motherFrom here it passes to her grandmother her great grandmother hersister the childOtildes paternal grandmother and only then the father Thiswas the sequence endorsed by Mumllik in the Mudawwanah Later MumllikAcirclaw modified this order only to the extent of placing additional femaleintermediaries between the child and the father No one in the schoolhad ever held that the father comes immediately after the mother In thepresent context this had two important implications First even if themother is disqualified by reason of remarriage the right to custodydoes not pass to the father Second the maximum a father can bargainaway through any custody agreement is his own right to custody Theright of those prior to him (though after the mother) in succession arenot affected by his agreement In other words even if his right torevoke his initial agreement is recognized this does not deliver the child

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

48 SHERMAN A JACKSON

into his custody62 It is interesting that during the course of thisdiscussion al-QarumlfAcirc intimates that there is a fair amount of ignoranceamong womenmdashand menmdashregarding the sequence of child-custodiansWidows and divorced mothers routinely fall victim to the assumptionthat their remarriage gives their ex-husbands the right to custody Al-QarumlfAcirc sets out to reverse this error by arguing that ignorance in theseinstances is a valid excuse and that the grandmother or whoever else isnext in line has the right to come forth and demand custody of thechild63

5EcircEcircCustom and Judicial Practice DispositiveHaving successfully dissected the two main doctrinal obstacles in theMumllikAcirc school al-QarumlfAcirc is now ready to reassemble the various bitsand pieces of the madhhab into a new conclusion The glue with whichhis new synthesis is to be held together is legally sanctioned localcustom and judicial practice These are the object of his discussion inthe final segment of Kitumlb al-ibumlnah Again al-QarumlfAcircOtildes manner ofproceeding clearly reflects the strictures imposed upon him as a juristoperating under the r gime of taqlAcircd Rather than risk losing hisaudience by stating directly that the position of his opponents onpremature forfeiture is wrong al-QarumlfAcirc simply sets out to establish hisview as a viable alternative which when considered in the light ofadditional probative evidence deserves to be given precedence in thepresent dispute Having created a psychological space in the minds ofhis opponents through his masterful dissection of the claimed mashhacircral-QarumlfAcirc can now insert his new conclusion and secure it throughcareful appeals to local custom and judicial precedents established byseveral prominent authorities in the MumllikAcirc school In the end he is ableto champion his interpretation of the rule governing premature forfeitureof contingent rights without giving the appearance of having violated inany way the doctrine of his school

Al-QarumlfAcirc argues that whenever there is a standing controversywithin the school it is legitimate to rely upon judicial practice as thedeciding factor Even where one of the competing views is accepted asthe mashhacircr judicial practice (regamal) may be legitimately relied upon

62EcircEcircEcircThere was apparently some minor disagreement within the school on thispoint A certain group of OgraveQayrawumlnidsOacute for example held that a motherOtildes forfeit-ure extended to the right of her mother and all who followed the latter deliveringthe child into the custody of the father Ibid 87

63EcircEcircEcircIbid 91

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 49

to tip the balance in the opposite direction64 This is all the moreapplicable in the present dispute since the present controversy had beendisputed (mukhtalaf fih) in the madhhab while the normal procedure(regamal) of the (MumllikAcirc) courts in Cairo was to recognize and enforce afatherOtildes premature agreement to forfeit custody65 This action by thecourts al-QarumlfAcirc insists was justified by the fact that a number ofauthorities eg Abacirc Bakr b al-regArabAcirc (d 5431148) Ibn Rushd theElder and othersmdash presumably in their capacity as judgesmdashoccasionally diverged from the mashhacircr whereupon their views weresubsequently adopted and applied by the courts66 He ends hisdiscussion by insisting that judicial rulings should always seek topromote the broader interests of the community at large and wherepossible they should respect legally sanctioned local custom This viewhe traces back to his namesake the great Shihumlb al-DAcircn al-QarumlfAcirc whodied in 6841285

VIIEcircEcircConclusion

Al-QarumlfAcircOtildes manner of proceding in Kitumlb al-ibumlnah fAcirc timesifrac12frac12at isqumlszlig mumllam yajib min al-frac12aacuteumlnah suggests a number of things about the socialcontext in which he operated as a judge and jurist as well as the stateof Islamic legal science during his time His treatment of the issue ofreimbursement for housing expenses and the sequential order of cus-todians is a clear testimony to the dissonance that existed between thedoctrines of the jurists and the reality of the common people Hisreliance meanwhile on school doctrine as opposed to the Qurfrac34umlnSunnah and utimesacircl al-fiqh clearly shows that legal scaffolding asopposed to ijtihumld in the proper sense67 was the modus operandi ofjurists in his time The ultimate aim behind the crafting of a fatwuml wasnot simply to introduce new and innovative ideas but to gain thebacking of the school at large Moreover al-QarumlfAcircOtildes manner of pro-ceeding clearly demonstrates that unlike modern secular legislaturesthat are empowered to rescind and introduce law at will when faced

64EcircEcircEcircIbid 9965EcircEcircEcircIbid 8166EcircEcircEcircIbid 10267EcircEcircEcircAgain I consider ijtihumld proper to be the interpretation of scripture directly

with no intermediate authorities standing between the sources and the individualjurist I do not consider to be ijtihumld the application of the tools of utimesacircl al-fiqh toanything other than scripture Thus when a jurist applies the rules of qiyumls forexample or takhtimesAcirctimes al-regumlmm to the madhhab of an Imumlm this does not constitueijtihumld in the proper sense See further my OgraveTaqlAcircd Legal ScaffoldingOacute 167 nt 5

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

50 SHERMAN A JACKSON

with new circumstances or rules that no longer serve their originallycontemplated function Muslim jurists were powerless to abolishexisting law Instead they had to look for ways to circumvent it ormitigate its more stultifying effects68 This again was one of the mainfunctions of taqlAcircd-legal scaffolding Here however it should be notedespecially given al-QarumlfAcircOtildes position and performance in the presentdispute that the tendency to associate such categories as OgraveliberalOacute orOgraveprogressiveOacute with ijtihumld and OgraveconservativeOacute or even OgravepatriarchalOacutewith taqlAcircd is not only unwarranted but dangerously misleadingFinally it is not always possible to tell ie through a Ogravecommon-senseOacuteor OgraveplainOacute reading of a rule what the outcome of a legal dispute amongjurists will be The present dispute clearly demonstrates how one ruleisqumlszlig al-frac12aqq qabla wujacircbih could be relied upon to yield mutuallyexclusive conclusions (eg between al-QarumlfAcirc and his opponents withinthe MumllikAcirc school) What this suggests is that in addition to sourcesprinciples and precepts the outcome of legal deliberations are informedby the manner in which these are all invoked and applied And thisapplication is neither dictated nor governed by the methodology laid outin the books of utimesacircl al-fiqh or qawumlregid There is in other words asignificant element of legal deliberation that is brought to it fromoutside the sanctum of legal science proper namely the presup-positions goals fears and aspirations of individual jurists whichthemselves reflect something about the societies in which they live It isthus not simply logic that governs legal contemplation but exigency andpracticality as well69

It is not possible at present to tell whether al-QarumlfAcirc was successfulin his attempt to retain custody for the divorced mothers in the presentdispute Based on subsequent MumllikAcirc manuals his arguments do notappear to have had any permanent effect on school doctrine His oldercontemporary for example Mufrac12ammad al-frac14aszligszligumlb (d 9531547)clearly indicated (in dealing with the khulreg-for-custody controversy)70

that the mashhacircr of the madhhab was that premature forfeiture ofcontingent rights was not binding71 Afrac12mad al-DardAcircr would cite thesame opinion in the eighteenth century72 And Mufrac12ammad al-DusacircqAcirc

68EcircEcircEcircSee Jackson State 98ff69 EcircEcircEcircFor more on this point see my OgraveFiction and Formalism Towards a

Functional Analysis of Utimesacircl al-FiqhOacute forthcoming70EcircEcircEcircSee above nt 4671EcircEcircEcircSee Mawumlhib 421872EcircEcircEcircSharfrac12 2532 Al-DardAcircrOtildes position is indicated disjunctively He says that

the right to custody does not return to her Ograveif she forfeits it after it accrues to herOacutefrom which it is to be concluded that if she forfeits it before it accrues to her she

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533

POST-FORMATIVE JURISPRUDENCE BETWEEN EXIGENCY AND LAW 51

who died in the ninteenth century would emphatically endorse thisview as the standard position (al-muregtamad) of the madhhab73 Whilethis seems to indicate that al-QarumlfAcirc failed in his attempt to changeschool doctrine regarding his schoolOtildes construction of this particularprecept to look at the matter from this perspective is perhaps to missthe point For as this study has shown neither position on Ograveisqumlszlig al-frac12aqq qabla wujacircbihOacute provides for what might be deemed an equitablesettlement in all circumstances What matters in other words is notwhether al-QarumlfAcirc was able to sway the school regarding the status ofthis particular precept as a whole but whether the school tradition intandem with his acumen as a jurist provided enough material andmechanisms for him to be able to challenge the finality of the status quoand open up enough psychological space for his colleagues to entertainan alternative position on a specific and concrete controversy intenthsixteenth century Cairo

can regain it In other words premature forfeiture is not binding73EcircEcircEcircfrac14umlshAcircyat 2533