Sharia, Justice and Legal Order Egyptian and Islamic Law: Selected Essays (Studies in Islamic Law and Society) (English and German Edition)

726 Pages·2020·4.129 MB·English, German

by  Rudolph Peters

Shariʿa, Justice and Legal Order
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Studies in Islamic Law
and Society
Founding Editor
Bernard Weiss
Editorial Board
A. Kevin Reinhart
Nadjma Yassari
volume 51
The titles published in this series are listed at brill.com/sils
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Shariʿa, Justice
and Legal Order
Egyptian and Islamic Law:
Selected Essays
By
Rudolph Peters
LEIDEN | BOSTON
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Library of Congress Cataloging-in-Publication Data
Names: Peters, Rudolph, author.
Title: Shari’a law, justice and legal order : Egyptian and Islamic law :
 selected essays / Rudolph Peters.
Description: Leiden ; Boston : Brill, 2020. | Series: Studies in Islamic
 Law and Society, 1384-1130 ; volume 51 | Includes bibliographical
 references and index.
Identifiers: LCCN 2020012214 (print) | LCCN 2020012215 (ebook) |
 ISBN 9789004412514 (hardback) | ISBN 9789004420625 (ebook)
Subjects: LCSH: Law—Egypt—History. | Islamic law—History.
Classification: LCC KRM130 .P48 2020 (print) | LCC KRM130 (ebook) |
 DDC 349.62—dc23
LC record available at https://lccn.loc.gov/2020012214
LC ebook record available at https://lccn.loc.gov/2020012215
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
ISSN 1384-1130
ISBN 978-90-04-41251-4 (hardback)
ISBN 978-90-04-42062-5 (e-book)
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Contents
Foreword ix
Robert Gleave
Preface xviii
section 1
Legal History of Egypt
part 1
Nineteenth Century
Penal Law: Shariʿa, Legislation, Judiciary
1 Murder on the Nile
Homicide Trials in 19th-Century Egyptian Shariʿa Courts 7
2 Muhammad al-ʿAbbasi al-Mahdi (d. 1897), Grand Mufti of Egypt, and
His al-Fatawa al-Mahdiyya 24
3 Islamic and Secular Criminal Law in Nineteenth-Century Egypt
The Role and Function of the Qadi 40
4 “For His Correction and as a Deterrent Example for Others”
Meḥmed ʿAlī’s First Criminal Legislation (1829–1830) 61
5 Administrators and Magistrates
The Development of a Secular Judiciary in Egypt, 1842–1871 89
6 Between Paris, Istanbul, and Cairo
The Origins of Criminal Legislation in Late Ottoman Egypt
(1829–58) 107
7 The Significance of Nineteenth-Century Pre-Colonial Legal Reform
in Egypt
The Codification of Criminal and Land Law 128
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vi Contents
Case Studies
8 The Lions of Qasr al-Nil Bridge
The Islamic Prohibition of Images as an Issue in the ʿUrabi Revolt 159
9 An Administrator’s Nightmare
Feuding Families in Nineteenth-Century Bahariyya Oasis 168
10 Petitions and Marginal Voices in Nineteenth-Century Egypt
The Case of the Fisherman’s Daughter 178
11 The Infatuated Greek
Social and Legal Boundaries in Nineteenth-Century Egypt 192
12 The Violent Schoolmaster
The “Normalisation” of the Dossier of a Nineteenth-Century Egyptian
Legal Case 204
Legal Punishment
13 Prisons and Marginalisation in Nineteenth-Century Egypt 221
14 Egypt and the Age of the Triumphant Prison
Legal Punishment in Nineteenth-Century Egypt 238
15 Controlled Suffering
Mortality and Living Conditions in 19th-Century Egyptian Prisons 278
Part 2
Other Egyptian Periods
16 New Sources for the History of the Dakhla Oasis in the
Ottoman Period 307
17 Sharecropping in the Dakhla Oasis
Shariʿa and Customary Law in Ottoman Egypt 320
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Contents vii
18 Body and Spirit of Islamic Law
Madhhab Diversity in Ottoman Documents from the Dakhla
Oasis, Egypt 332
19 The Battered Dervishes of Bab Zuwayla
A Religious Riot in Eighteenth-Century Cairo 344
20 Divine Law or Man-Made Law?
Egypt and the Application of the Shariʿa 365
Section 2
Islamic Law in General
21 Apostasy in Islam 395
with G.J.J. de Vries
22 Dar al-Harb, Dar al-Islam und der Kolonialismus 418
23 Idjtihad and Taqlid in 18th- and 19th-Century Islam 428
24 Islam and the Legitimation of Power
The Mahdi-Revolt in the Sudan 441
25 Religious Attitudes towards Modernization in the Ottoman Empire
A Nineteenth-Century Pious Text on Steamships, Factories and the
Telegraph 454
26 Islamic Law and Human Rights
A Contribution to an Ongoing Debate 484
27 Murder in Khaybar
Some Thoughts on the Origins of the Qasama Procedure in
Islamic Law 497
28 From Jurists’ Law to Statute Law or What Happens When the Shariʿa
is Codified 531
29 The Reintroduction of Shariʿa Criminal Law in Nigeria
New Challenges for the Muslims of the North 546
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viii Contents
30 The Enforcement of God’s Law
The Shariʿah in the Present World of Islam 561
31 What Does It Mean to Be an Official Madhhab?
Hanafism and the Ottoman Empire 585
32 The Re-Islamization of Criminal Law in Northern Nigeria and the
Judiciary
The Safiyyatu Hussaini Case 600
33 Shariʿa and ‘Natural Justice’
The Implementation of Islamic Criminal Law in British India and
Colonial Nigeria 622
34 Dutch Extremist Islamism
Van Gogh’s Murderer and His Ideas 645
35 (In)compatibility of Religion and Human Rights
The Case of Islam 662
Copyright Acknowledgments 683
Index 687
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Foreword
A scholar’s contribution to the field is usually assessed in terms of liter-
ary outputs – journal articles, book chapters and monographs are the usual
genres. In this sense, the articles collected here exemplify how Ruud Peters
(henceforth RP) is a giant in the field of Islamic legal studies. His publi-
cations span forty years of research and writing, covering topics from the
development of early Islamic law (Chapter 27, “Murder in Khaybar”) to con-
temporary jihadi ideology (Chapter 34, “Dutch Extremist Islamism”). There is
a focus on Egypt (Parts 1 and 2), but with digressions into Sudan (Chapter 24,
“Islam and the Legitimation of Power”) and Nigeria (including Chapter 29,
“The Reintroduction of Shariʿa Criminal Law in Nigeria”). There are studies of
doctrine – RP’s early work on jihad doctrine was the first major examination of
the topic in English, well before the activities of the jihadi movements created
such a rich seam for scholars to mine for academic research. However, review-
ing RP’s oeuvre overall (particularly the articles collected here), one notices an
increasing use of documents and, although he has developed a keen eye for the
analysis of Islamic legal practice in micro-settings, his work has major implica-
tions for the way the broader field might be envisioned. In this way, RP’s work
is both a contribution to, and a reflection of, the development of the field of
Islamic legal studies. His research interests have both mirrored and informed
the study of Islamic law over the last 40 years. How, then, might we assess the
significance of the articles collected here and, hence, the importance of RP’s
output? I aim in what follows to place his scholarship in the context of the
development of the field more broadly. RP, I think it is fair to say, has never
worked as an entirely isolated scholar; his work has emerged out of a dialogue
with other scholars working on Islamic law. With his affable and increasingly
avuncular manner, RP has always enjoyed focused interactions with scholars
in the field; he has not merely played off their scholarship – that is expected
of any researcher. More than this, he has organized seminars, workshops and
conferences; he edits important collections and fundamental book series; he
travels the world to teach and share research with fellow scholars. For that the
field must be truly grateful. Whether he recognizes this or not, RP’s position
in the field has grown in an organic manner, developing out of a network of
scholarly contacts and nurturing research projects and agendas. It is only natu-
ral that his own scholarly endeavours be usefully understood against the back-
drop of the last half century of Islamic legal studies. In this collection, RP has
arranged his contributions, naturally, according to topic – but another way of
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x Foreword
assessing his influence and position in the field, is to look at his output chrono-
logically (as I shall do here).
An account of the development of Islamic legal studies in Europe (and later
in North America) in the twentieth century would most likely recognize that
studies of legal doctrine dominated the 1970s and 1980s. When RP first con-
tributed to the field, how Muslim legal actors implemented the law was con-
sidered, by and large, to be of marginal interest. What mattered for the major
scholars from the 1950s onwards (perhaps even earlier than this) was how the
law was laid down by jurists in their legal works – that is doctrine.1 There was
an emerging interest in the relationship of state law to Islamic law,2 but studies
of doctrine dominated the field. That practice deviated from, or conformed to,
this model was considered, in the main, a matter for lawyers not academic re-
search; Islamic law should be assessed (and by some, evaluated), primarily, as
an intellectual system. Practice, it was assumed, would always be a pale imita-
tion of the system’s lofty ideals. This emphasis on understanding doctrine – the
intellectual system constructed by the jurists – is, in part, the result of broader
trends in academic discourse of the post-war period. The academic tendency
to privilege the intellectual over the concrete has a long history, and the study
of Islamic law inevitably took on such a perspective.3 It is, though, also ex-
plained by the emergence of the study of Islam in European academic set-
tings (and the study of Islamic law as a subset of that history). With its origins
in the twin disciplines of theology and Semitic philology, the actual practice
of Muslims was viewed as a less-than-serious area of research. When the so-
cial sciences were fully integrated into the Western academic curriculum, that
perspective changed; for Islamicists, though, the Islamic legal texts and their
contents were studied within the framework of a world of competing systems
of ideas, rather than within the context of Muslim practice.4
1  The two classic studies are J. Schacht, An Introduction to Islamic Law (Oxford: Oxford
University Press, 1964); and N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh
University Press, 1964).
2  For example, J.N.D. Anderson, Islamic Law in the Modern World (New York: NYU Press, 1959).
3  The principal intellectual movements of the nineteenth century in the social sciences, linked
with colonialism and the study of different societies, is charted in the essays in J. Helibron,
Lars Magnusson and Bjorn Wittrock (eds.), The Rise of the Social Sciences and the Formation
of Modernity (New York: Springer, 2013).
4  The dynamics whereby Islamic studies came to be an independent academic subject (as dis-
tinct from Arabic studies, theology and Middle Eastern/Near Eastern/Oriental studies) are
yet to be fully developed. Much of the intellectual history of the subject revolved around
the German context in the early period of the subject’s history – see Annemarie Schimmel,
“Islamic Studies in Germany: An Historical Overview”, Islamic Studies 49.3, 2010, pp. 401–10.
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