Child Custody in Islamic Law: Theory and Practice in Egypt Since the Sixteenth Century
By Ahmed Fekry Ibrahim
This monograph takes as its central theme the following paradox: while Muslim jurists canonized most of the laws of child custody in the eighth-eleventh centuries, changes in socio-economic structures were not matched by clear shifts in later juristic discourse. I thus ask how the law kept up with social transformations, especially as questions of gender and religious affiliation played an important role in the determination of custody according to the discourse of pre-modern jurists. By juxtaposing religious law books with Ottoman court practice, I explore the Ottoman-Egyptian judges’ frequent disregard for juristic discourse in favor of accommodating various temporally and geographically contingent notions of child welfare. I argue that the existence of judicial discretion in tension with the letter of the religious law challenges the obsession among modernist reformers with juristic discourse to the exclusion of pre-modern court practice, an important site of inspiration for legal reform.
Pre-modern Muslim jurists drew a clear distinction between the nurturing and upkeep of children, or “ḥaḍāna” (custody), and caring for the child’s education, discipline, and property, known as “wilāya” (guardianship). I analyse how these two concepts relate to the welfare of the child, and trace the development of an Islamic child welfare jurisprudence akin to the Euro-American concept of the best interests of the child, enshrined in the Convention on the Rights of the Child (CRC). Challenging Euro-American exceptionalism, I argue that child welfare played an essential role in agreements designed by early modern Egyptian judges and families. Child custody laws therefore were an important area of law that required creative negotiation between the letter of the law and social realities.
The rigid determinations of custody based on age and gender, which are characteristic of the official Ḥanafī school, were often negotiated in the courtroom among family members and Ottoman court officials with a view both to child welfare and the peaceful co-existence of families after separation. Normally, according to the discourses of most premodern Sunni jurists, a woman forfeited her custody rights if she married someone who is not a close relative of the child or if she moved away from the guardian’s (usually the father or an agnatic relative) place of residence. These agreements, however, granted women custody despite remarriage or moving away from the guardian’s place of residence. When such agreements threatened the child’s welfare as assessed by the judge, they were nullified.
In the same way women were able to enter into marriage agreements granting them the right to divorce in the event of the husband’s polygyny, they were able to enter into divorce agreements affording them greater custody rights. These agreements, which were intensely debated in the Ottoman period, were prohibited by the majority of Sunni jurists. The formulas used in them, however, continued throughout the Mamluk and most of the Ottoman period. If we de-ghettoize Islamic law and endow it with less exceptionalism as a legal system, it should not be surprising to learn that the common law had a similar solution to the tension between the father’s absolute paternity right and the values of early modern English society—especially with respect to the role of women in society and the child’s needs. English families designed similar private separation agreements, circumventing the absolute paternal right of custody in the common law, and accommodating the evolving child welfare assumptions of English society. The opposition to such agreements was so strong that they were eventually banned in common law England, as they were in Ottoman Egypt by the last quarter of the 17th century.
While early Ottoman jurists found ways to accommodate child welfare and the needs of elite women who sought freedom of movement and the freedom to remarry without losing child custody, modern Egyptian jurists held more closely to the age determinations of juristic discourse. By late 19th-century Egypt, child custody laws were clearly in tension with social perceptions of the family and the place of women in society, leading to calls for reforms. These reforms, which were made throughout the 20th century, only addressed some sticking areas of tension, leaving others untouched for over a century.
In 2016, a new bill seeking to address some of the areas of tension between social assumptions and the law failed to produce a compromise between those with a reductive view of Islamic law as simply premodern juristic discourse and those who sought a more nuanced understanding of the law. The bill was shelved. In addition to Egypt’s identitarian impasse, a simplistic understanding of premodern Islamic law and the complex ways in which law, including religious law, is produced were the main culprits for the failure of the 2016 bill.
By offering a comparative overview of some of the changes in the child custody laws of France, Common Law England and the United States, I seek to explore some of the similarities between a religious legal system such as Islamic law and legal systems that do not claim religious transcendence. The comparative aspect is important not only owing to its emphasis on the lawness of Islamic law but also because it sheds light on how different legal traditions have sought (or resisted) convergence on the concept of the best interests of the child, as part of the “globalization of childhood” process (to use the words spoken by Swedish reformer, Allen Key, in 1900). The trajectory of the development of child welfare jurisprudence can only be fully appreciated in the Islamic context by looking at court practice. Islamic legal reform can benefit richly from a praxeological account that goes beyond the canonical reformers’ narrow focus on juristic discourse.
About the author
Trained at al-Azhar, the American University in Cairo, and Georgetown University, Ahmed Fekry Ibrahim has been writing about the theory and practice of Islamic law in the premodern and modern periods by examining both juristic discourse and court records. His research interests include the formation of Islamic law, Islamic legal practice in Ottoman courts, and the impact of socioeconomic and cultural changes on juristic discourse and judicial practice. Over the past few years, he has finished two books. One of them came out in 2015 and a paperback edition was released in 2017 under the title Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse: Syracuse University Press, 2015). Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century is his second monograph. He is currently working on a third monograph on adoption in Islamic law. His research has been supported by EUME (Europe in the Middle East, the Middle East in Europe), the Social Sciences and Humanities Research Council of Canada, Fonds de recherche du Québec, the Max Planck Institute for Comparative and International Private Law, the Graduate School of Muslim Cultures and Society in Berlin, the American Research Center in Egypt, and the School of Foreign Service at Georgetown University in Qatar.
Citation: Ahmed Fekry Ibrahim, Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century, in: TRAFO – Blog for Transregional Research, 21.08.2018 https://trafo.hypotheses.org/12208.