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Rewriting Islamic Law


The Opinions of the 'Ulamā' Towards Codification of Personal Status Law in Egypt


This book explores the process, effects, and results of codification of Egyptian personal status laws as seen through the eyes of the ‘ulamā’. The codification process began in the mid-1800s and continued until the abolishment of the Sharī‘a courts in 1955 with the absorption of personal status statutes into the newly drafted civil code and the national courts that administered them.
Publisher: Gorgias Press LLC
SKU (ISBN): 978-1-4632-3908-4
Publication Status: Forthcoming

Publication Date: Oct 30,2019
Interior Color: Black
Trim Size: 6 x 9
Page Count: 241
Language: English
ISBN: 978-1-4632-3908-4
$95.00
$57.00
The codification process of personal status laws in Egypt began in the mid-1800s, continuing until the abolition of the Sharī‘a courts in 1955, with the absorption of personal these statutes into the newly drafted civil code and the national courts that administered them. Throughout this period, legal codification entailed finding appropriate rulings from the annals of Islamic law and structuring these rulings using the model and language of European legal codes, usually the French code. Prior to this, the area of personal status law was the exclusive domain of the ‘ulamā’ and the Sharī‘a. In Egypt, personal status laws were exclusively based on Ḥanafī law, and issues surrounding the consolidation and codification of these laws first took place within the framework of classical Islamic law, not outside of it. To understand the significance of the process of codification, therefore, it is important to examine the attitudes of the ‘ulamā’ regarding it and its place within the edifice of Islamic law. Furthermore, since the ‘ulamā’ themselves are a diverse group, it is also important to understand the various approaches adopted to the process of codification to fully appreciate the great significance it had on the re-formatting and re-writing of Islamic law.
 
"Sharia codification in the 19th and 20th centuries is an important chapter in the story of Islamic law and modernity. The author is an accomplished scholar, trained in both Western academia and at the al-Azhar Seminary, and has done a wonderful job of narrating and analyzing this historic process." H.E. Dr. Ali Gomaa, Former Grand Mufti of Egypt
 
"A fascinating and meticulously-researched study highlighting the tensions in turning shari'ah personal status laws into state law in Egypt during the twentieth century" HRH Prince Ghazi Bin Muhammad of Jordan
The codification process of personal status laws in Egypt began in the mid-1800s, continuing until the abolition of the Sharī‘a courts in 1955, with the absorption of personal these statutes into the newly drafted civil code and the national courts that administered them. Throughout this period, legal codification entailed finding appropriate rulings from the annals of Islamic law and structuring these rulings using the model and language of European legal codes, usually the French code. Prior to this, the area of personal status law was the exclusive domain of the ‘ulamā’ and the Sharī‘a. In Egypt, personal status laws were exclusively based on Ḥanafī law, and issues surrounding the consolidation and codification of these laws first took place within the framework of classical Islamic law, not outside of it. To understand the significance of the process of codification, therefore, it is important to examine the attitudes of the ‘ulamā’ regarding it and its place within the edifice of Islamic law. Furthermore, since the ‘ulamā’ themselves are a diverse group, it is also important to understand the various approaches adopted to the process of codification to fully appreciate the great significance it had on the re-formatting and re-writing of Islamic law.
 
"Sharia codification in the 19th and 20th centuries is an important chapter in the story of Islamic law and modernity. The author is an accomplished scholar, trained in both Western academia and at the al-Azhar Seminary, and has done a wonderful job of narrating and analyzing this historic process." H.E. Dr. Ali Gomaa, Former Grand Mufti of Egypt
 
"A fascinating and meticulously-researched study highlighting the tensions in turning shari'ah personal status laws into state law in Egypt during the twentieth century" HRH Prince Ghazi Bin Muhammad of Jordan
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Contributor

Tarek Elgawhary

Table of Contents v
Acknowledgments ix
A Note on Transliteration, Spelling, and Other Conventions xi
Introduction. Origins of Codification, Codification of Islamic Law, and the Rise of Personal Status Law 1
Genealogy of Codification 2
Jeremy Bentham: “Legislator of the World” 4
Effects of Codification on Law 8
Experiments in Codification of Islamic Law 13
Development of al-siyāsa al-shar‘iyya 18
Ottoman Codification and the Story of the Majalla 22
Ahmed Cevdet Paşa 24
Methodology of the Majalla’s Codification 26
The Age of Personal Status Law 31
Interpreting the Effects of Codification on Islamic Law and the ‘ulamā’ 33
Chapter 1. ‘ulamā’ of the Code 41
Makhlūf al-Minyāwī and his Muqāranāt al-Tashri‘iyya 45
The Age of Ismā‘īl 46
The work 48
General Methodology of the Work 49
Methodology and Understanding of Codification 51
Codification and Divorce Law 56
Muḥammad Qadrī Pasha and Codification 58
Ṭahṭāwī, Qadrī, and al-Alsun School 60
Corpus and Reception 64
Methodology of Codification 67
Codification and Divorce Law 69
The 1929 Law of Marriage and Divorce 69
Anatomy of the Explanatory Note to Law 25 of 1929 72
Chapter 2. Defenders and Advocates of Codification 77
Women at the Turn of the 20th Century in Egypt 80
Qasim Amīn 84
Taḥrīr al-Mar’a and the Collaboration of Muḥammad ‘Abduh 86
Muḥammad ‘Abduh 92
‘Abduh’s Treatment of Islamic Law and Codification of Personal Status Law 93
‘Abduh’s Discussion of a Thrice-Pronounced Divorce Counting as One 101
Aḥmad Shākir 103
Aḥmad Shākir’s View of Islamic Law and Codification 105
Aḥmad Shākir and Divorce Laws 107
Chapter 3. The Counter Argument: ‘ulamā’ Against Codification of Personal Status Law 115
Muḥammad Rashīd Riḍā 116
Muslim Unity and the Islamic State 121
Rida and Codification of Islamic Law 126
Ijtihād 127
Talfīq 131
Al-siyāsa al-shar‘iyya 132
Muḥammad Zāhid al-Kawtharī 136
The Anti-Reform Argument 137
Argument 1: Against Uniting the Schools of Islamic Law 139
Argument 2: The Schools of Law and the Limits of Orthodoxy 142
Argument 3: Taqlīd and Talfīq 143
Argument 4: On Maṣlaḥa 145
Al-Kawtharī and the Issue of a Thrice Divorce Pronouncement 147
Orthodoxy and the Limits of Ijtihād 148
The Ḥadīth of Rukāna and ‘Umar’s Decision 150
Revisiting Consensus and Upholding Traditional Uṣūl al-Fiqh 154
Chapter 4. ‘ulamā’ on the Fence: a Silent Majority? 157
The Late History of the Codification of Egypt’s Civil
Code 158
Sayyid ‘Abdallah ‘Alī Ḥusayn al-Tīdī 163
French Law is Originally Based on Mālikī Fiqh 164
Foreign Occupation of Egypt 166
Role of ‘ulamā’ 167
The Muqāranāt Work of Ḥusayn 167
Ḥusayn and the History of Legal Reform in Egypt 169
Ḥusayn and al-Sanhūrī 171
Ḥusayn and the Tripartite Definition of Codification 175
Al-siyāsa al-shar‘iyya 176
Ijtihād and Taqlīd 177
Talfīq 180
The Incompatibility of French Law for Muslim Personal Status Issues 181
The Financial Relationship Between Husband and Wife 182
Gender Mixing 182
Difficulty of Divorce Leading to Extra Marital Affairs 183
Muḥammad Bakhīt al-Muṭī‘ī 185
General Position and Understanding of Codification 187
Classical Islam and its Boundaries 189
The Nature of Law 191
Muṭī‘ī’s Opinion of the Tripartite Definition of Codification 193
Al-Siyasa Al-Shar‘iyya 193
Ijtihād 195
Talfīq 196
Al-Muṭī‘ī’s Critique of the Three as One Position 197
Conclusion 203
Bibliography 209
Index 223