GENERAL ISLAMIC BACKGROUND

The twin pillars of patriarchy—polygamy and unilateral repudiation by the husband—had been the unshakeable supports of the structure of Islamic family law for more than thirteen centuries.

The juristic basis concerned lay in the doctrine of siyasa, which in general terms defines the position of the political authority vis-i-vis the Shari‘a law and in particular affords him the power to make administrative regulations defining the jurisdiction of his courts.Such administrative regulations, for the purpose of modem reform, fall into two distinct categories.

The first defines the jurisdiction of the courts in the sense that it orders them to apply one particular among several variant legal rules on the same question. Divergence of doctrine is an outstanding characteristic of Shari'a law and one inherent in its very nature. For the law represents the attempt of scholars to define the will of Allah for Muslim society by interpreting and expanding the basic material

¹ The phenomenon of Islamic legal modernism in the Middle East was first analysed by J.

of divine revelation. This basic material—the text of the Qur’an and the recorded precedents of the prophet—is extremely limited in its amount and scope, and accordingly the vast bulk of Shari'a law is the product of die reasoning of jurists. This potential for divergent views was greatly accentuated by the fragmentary growth of the law during the early formative period, where geographical division, local allegiances and conflicts of principle produced numerous competing systems. By ad 900 the divergence had crystallized in the formation of four distinct schools of Shari‘a law—not to mention the systems of the minority sects—and within each school the doctrine was further ramified by the various opinions of its own splinter groups and individual jurists. At this stage the process of disintegration was arrested. A belief that all the necessary work of interpretation and expansion had been completed came gradually to be expressed as an infallible consensus of opinion that no jurist henceforth had the right to interpet the original texts independently. The right of individual reasoning or ijtihad ms denied. It was replaced by the duty of taqlid or adherence to the established law. This doctrine, though not un­challenged in theory, in practice had been consistently observed, with one minor exception to which we shall later refer, when the Pakistani Commission was set up in 1955. Whatever the aims and aspirations of a Muslim State it was in theory bound to follow the doctrine emanating from jurists of the tenth century and now sys­tematically enshrined in the mediaeval handbooks of Shari'a law, which possessed a final and unquestionable authority.

Accordingly it is only, in strict principle, by a choice from among the authoritative opinions recorded in these texts that the Muslim political authority may define the jurisdiction of his courts. On this basis indeed the face of Shari*a law in the Middle East has been greatly altered in recent times. For example, in place of the Hanafi law tradi­tionally dominant in this area, which confines a wife’s petition for divorce to the one ground of the sexual impotence of her husband, the Maliki law, under which a wife’s petition may be grounded on the husband’s incurable and contagious disease, desertion, failure to maintain or cruelty, has been widely adopted. But the limits of this process are readily apparent. The reformers were soon forced to forage beyond the limits established by the general consensus. Doctrines of isolated jurists outside the four Sunni schools, mentioned in the texts as historical curiosities, were selected and embodied in the modem codifications. To suit the preconceived purposes of the reformers legal rules were ‘patched up’, by a procedure aptly termed talfiq, from a combination of the views, or particular elements from the views, of different schools and jurists. And yet, though strained beyond any legitimate bounds of orthodoxy, formally the doctrine of taqlid still held sway.

The second category of administrative regulations admissible under the doctrine of siyasa is that by which the sovereign defines the jurisdiction of his courts in the sense that he restricts their com­petence to certain types of case. A limited number of important reforms have been achieved by this method in the Middle East. Under traditional Hanafi law, for instance, a child bom to a widow or divorcee within two years of the dissolution of her marriage was presumed legitimate, for such was the maximum period of gestation laid down in the Hanafi texts. The Egyptian Law No. 25 of 1920 declared that the courts would not entertain any disputed claim of legitimacy on behalf of a child bom more than one year after the dissolution of the marriage of the child’s mother and alleged father, and thus restricted jurisdiction in such matters to claims in which the factual situation involved was in accord with modem medical opinion concerning the gestation period.

But while this is a procedural method which formally leaves the substantive law untouched, its limits in practice are even more obvious than those of the method of selection. The denial of judicial relief to parties whose acts or relationships are admittedly valid is a harsh method of reform and obviously, if carried to its ultimate conclusion, would wrest all semblance of authority from the Shari’a courts. For this reason it has been used very sparingly and only in regard to matters which are essentially matters of evidence. Thus, in addition to the matter of the gestation period already mentioned, the Shari’a courts have been forbidden to entertain suits involving disputed claims of a marriage or a repudiation which had not been registered. These are, of course, essentially matters of legal proof and therefore a proper subject for administrative regulations. Admittedly, when in Egypt in 1923 officials competent to register marriages were forbidden to register marriages between parties below certain minimum pre­scribed ages, and the courts were precluded from entertaining claims dependent upon the existence of such a marriage when it was dis­puted, this directly affected the substantive right of marriage guardians under the Shari’a to contract their minor wards in marriage; but this seems to be the only occasion on which the principle has been thus extended. In any event, even when so used, it is a principle which has been manifestly wrenched out of all historical perspective; for its

traditional formulation merely visualized the apportionment of dif­ferent types of case between several different courts.

This, in broad outline, was the scope for reform of the Shari'a law offered by the exploitation of traditional principles. As such it had proved the generally acceptable middle way between the two extremes of total abandonment of the Shari'a or rigid adherence to its tradi­tional form. The former solution was adopted by Turkey in the 1920’s, while the traditionalist attitude of Saudi Arabia was strong enough to reject King Ibn Saud’s proposal in 1927 to compile a code of Islamic law embodying doctrines from schools other than the Uanbali school.

But, far reaching though some of the reforms introduced by the methods discussed may have been, these methods were of no avail against the two institutions of the Shari'a which were obviously bound to be the ultimate concern of the modem reformer—the husband’s rights of polygamy and repudiation or Both rights rested squarely

upon divine revelation, in the form of the text of the Qur’an or the practice of the prophet. No variant opinion at all could be adduced to challenge them; nor could the method of denial of judicial relief be contemplated in regard to such firmly entrenched substantive rights for the reasons already mentioned. It is true that by the process of selection certain harsh details of the Hanafi law of falaq had been whittled away. For example the rule that a repudiation pronounced in drunkenness was valid and effective was discarded in favour of the contrary opinion of the other schools. Similarly, as a step towards the limitation of polygamy, the Ottoman Law of Family Rights, 1917, followed by the later Middle Eastern codifications, adopted the Hanbali view that a husband who agreed in his marriage contract not to take a second wife during the continuance of the marriage would be bound by such a stipulation, in the sense that the first wife would be entitled to a dissolution of the marriage in the event of its breach. The Hanafi law holds such a stipulation to be wholly void. But in order seriously to challenge the essence of these traditional rights of the husband some more extreme and incisive approach was required.

Such an approach had indeed been suggested by the great Egyptian reformer Muhammad 'Abduh as early as 1898. His argument, as developed, may be presented in the following terms. The Qur’an may be so interpreted as to deny both the right of polygamy and the

* Schacht, Islamic Law in Contemporary States, in the American Journal of Comparative Law, 1959, p.

right of extra-judicial divorce by repudiation. In the first place the Qur’an qualifies its permission of polygamy by requiring that the husband should be financially capable of supporting a plurality of wives and that he should be able to treat them impartially. If these qualifications should be interpreted not as mere moral injunctions, but as positive legal conditions precedent to the exercise of the right itself, then it would be open to a modem court, in the light of present social circumstances, to hold that these conditions, particularly the second, were incapable of fulfilment, and thus refuse to sanction a second marriage. In the second place the Qur’an orders the appoint­ment of arbitrators in the event of ‘discord’ between husband and wife. What more obvious instance of ‘discord’ than the pronounce­ment of a repudiation by the husband? Who then more fitted to assume the necessary function of arbitration than the established courts? In short, a repudiation should not be per se effective, but should require at least the consent of the court. Implicit in this approach is the power of the court to consider the husband’s motive and to give its consent only upon such terms, particularly as to financial provision for the divorced wife, as it sees fit.

Attractive though such proposals might appear, and powerful though the personality and advocacy of their initiator may have been, they had no immediate success. For such an open assertion of the right of ijtihad represented an outright and radical break with the tradition of more than ten centuries standing and proved unacceptable to contemporary Muslim opinion.

It was not until 1953 that the first hesitant steps were taken in the actual implementation of this novel approach. The Syrian Law of Personal Status, 1953, required the consent of the court for a second marriage, and such consent was only to be given where the husband could establish his financial ability to support his co-wives adequately. Polygamy became the privilege of the wealthy. In regard to talaq the approach was less extreme and in fact the terms of the law itself come as something of an anti-climax after a resounding preamble on the need for a fresh interpretation of the original sources. For the only provision of consequence is that which enables the court to award a repudiated wife compensation, within the maximum of one year’s maintenance, where the repudiation was pronounced without just or proper motive and was injurious to the wife.