An Egyptian Judge in a Period of Change: Qadi Ahmad Muhammad Shakir, 1892-1958

Shaham, Ron, The Journal of the American Oriental Society

This essay seeks to analyze the dynamics of modern legal change as reflected in the juridical thought of the Egyptian Salafi faqih and qadi, Ahmad Muhammad Shakir. The study is based on a collection of twenty-four of Shakir's shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a court decisions, published in 1941. It analyzes the main topics that were on Shakir's agenda: the restriction of the jurisdiction of the sharia courts in favor of the civil courts; the statutory legislation in family matters which was directed to the sharia courts; the competence of the modern qadi to engage in ijtihad; and the significance of the classical Hanafi sources for the modern qadi. The main finding of the study is that, in a period of legal ambiguity and uncertainty, the qadis were obliged to search for a legal methodology to guide them in a new reality that had been forced on them.

Al-qadi la yudari[CHARACTERS NOT REPRODUCIBLE IN ASCII]u wa-la yudari[CHARACTERS NOT REPRODUCIBLE IN ASCII]u wa-la yatba[CHARACTERS NOT REPRODUCIBLE IN ASCII]u al-matami "The judge should not flatter, resemble (anyone), or pursue desires" ([CHARACTERS NOT REPRODUCIBLE IN ASCII]Umar b. al-Khattab, as quoted by Shakir on the opening page of Abhath fi ahkam: figh wa-qada[CHARACTERS NOT REPRODUCIBLE IN ASCII] wa-qanun)

INTRODUCTION

THE LAST QUARTER of the nineteenth century and the first half of the twentieth witnessed rapid changes in almost every aspect of Egyptian life.[1] These had an impact on the legal system: the jurisdiction of the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts was significantly reduced in favor of the newly established civil courts and was thereby limited to matters relating to personal status, succession, and wagf; statutory legislation pertaining to procedure and evidence, based on European models, was introduced to the shari[CHARACTERES NOT REPRODUCIBLE IN ASCII]a courts, as well as statutory codes of personal status, based on a selection of elements from all four Sunni schools of law. [2] The religious scholars ([CHARACTERS NOT REPRODUCIBLE IN ASCII]ulama[CHARACTERS NOT REPRODUCIBLE IN ASCII]), in general, and judges qudat, sg. qadi), in particular, encountered a dramatic change in their traditional environment, namely, the deteriorating status of the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a state and the emerging power of the centralizing nation state, which had chosen to modernize along Western lines. [3]

In this essay I analyze the dynamics of this legal change as reflected in the juristic thought of a prominent jurist and judge, Ahmad Muhammad Shakir. The research questions are as follows. What was the attitude of qadi Shakir towards restrictions placed on the jurisdiction of the shari[CHARACTERS NOT RESPRODUCIBLE IN ASCII]a courts? How did he accept the statutory legislation enforced on the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts? What was his interpretation of the term ijtihad (when applied by a qadi) and did this interpretation conform to the classical usages of this term? How did he use the classical legal sources and in what ways did he relate himself to the legal heritage of earlier generations? In the conclusion I will sketch a profile of a unique modern qadi, as demonstrated by the personality of Shakir.

Ahmad Muhammad Shakir (1892-1958) [4] was renowned as a specialist in prophetic reports, commentator of the Qur[CHARACTERS NOT REPRODUCIBLE IN ASCII]an, jurist and man of letters. He was born in Cairo in the family of Abu [CHARACTERS NOT REPRODUCIBLE IN ASCII]Ulya[C CHARACTERS NOT REPRODUCIBLE IN ASCII], a family of distinguished scholars. His father, Muhammad Shakir b. Ahmad b.[CHARACTERS NOT REPRODUCIBLE IN ASCII]Abd al-Qadir (1866-1939), [5] who was born in Jirja and studied at al-Azhar, was a qadi, chief justice (qadi al-qudat) in the Sudan (from 1900), shaykh of the [CHARACTERS NOT REPRODUCIBLE IN ASCII]ulama[CHARACTERS NOT REPRODUCIBLE IN ASCII] of Alexandria (from 1904),deputy rector (wakil) of al-Azhar (from 1909), and member of the board of the prominent [CHARACTERS NOT REPRODUCIBLE IN ASCII]ulama[CHARACTERS NOT REPRODUCIBLE IN ASCII] (Hay[CHARACTERS NOT REPRODUCIBLE IN ASCII]at Kibar al-[CHARACTERS NOT REPRODUCIBLE IN ASCII]Ulama[CHARACTERS NOT REPRODUCIBLE IN ASCII]) and of the Legislative Assembly (al-Jam[CHARACTERS NOT REPRODUCIBLE IN ASCII]iyya al-Tashri[CHARACTERS NOT REPRODUCIBLE IN ASCII]iyya, from 1913). Muhammad Shakir supported the national movement in the period of Sa[CHARACTERS NOT REPRODUCIBLE IN ASCII]d Zaghlul, He wrote many articles on Egyptian politics and a few works on logic and religious doctrine. One of his significant projects was an extensive report on the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts submitted in 1899 to Muhammad [CHARACTERS NOT REPRODUCIBLE IN ASCII]Abduh, then Grand Mufti of Egypt, which served as the basis for the reform conducted in these courts afterwards. Upon his death in Cairo, his son, Ahmad, wrote a short biography of him. [6]

Muhammad Shakir was his son Ahmad's first teacher in the religious sciences and a formative influence on his intellectual development. Accompanying his father to the Sudan, young Ahmad spent at least two years at the Gordon College in Khartoum, where he was exposed to aspects of modern scientific and technical education, including elementary science. When his father was later posted to Alexandria, Ahmad accompanied him to that city, where he completed his preparatory education for admission to al-Azhar. In April 1909 Ahmad started his studies at al-Azhar. During this period he had access to the leading religious scholars and experts of his time, including Rashid Rida. In 1917 he took the [CHARACTERS NOT REPRODUCIBLE IN ASCII]alimiyya degree from al-Azhar,which qualified him in Islamic law and the religious sciences.

After working as a secondary school teacher for a short period, Ahmad was appointed as judicial functionary (muwazzaf qada[CHARACTERS NOT REPRODUCIBLE IN ASCII]i) in the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts and, soon after, as a qadi in these courts. He progressed rapidly to become deputy chief justice and then, finally, chief justice of the Shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a Supreme Court (ra[CHARACTERS NOT REPRODUCIBLE IN ASCII]is al-mahkama al-[CHARACTERS NOT REPRODUCIBLE IN ASCII]ulya al-shar[CHARACTERS NOT REPRODUCIBLE IN ASCII]iyya) of Egypt, a position he held at the time of his retirement in 1951.

Ahmad Shakir's scholarly work centered on editing and publishing manuscripts dealing with prophetic tradition, law, and belles-lettres. Most of his editorial labors focused on reviving the works of traditional scholars, including al-Shafi[CHARACTERS NOT REPRODUCIBLE IN ASCII]i (d. 820), al-Tirmidhi (d. 892), Abti Dawud (d. 889), Ibn Hanbal (d. 855), Ibn Hazm (d. 1064), and Ibn Kathir (d. 1373). In addition to his editorial projects, he wrote many pamphlets, monographs, and essays in journals, addressing issues of socio-political and socio-legal significance raised by the Salafiyya reform movement. In this connection he was interested in the doctrines of Ibn Taymiyya (d. 1328) and Muhammad b. [CHARACTERS NOT REPRODUCIBLE IN ASCII] Abd al-Wahhab (d. 1792).

The present study is based on a collection of twenty-four of Shakir's court decisions, published in 1941 under the title: Abhath ft ahkam: fiqh wa-quda[CHARACTERS NOT REPRODUCIBLE IN ASCII] wa-qanun (Cairo: Matba[CHARACTERS NOT REPRODUCIBLE IN ASCII]at al-Ma[CHARACTERS NOT REPRODUCIBLE IN ASCII]arif). Most of the decisions are from the Shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a Court of Summary Justice at Azbakiyya, Cairo, where he served until the early 1940s, and few are from the courts of Hihya and al-Mahalla al-Kubra (both in the Nile delta), in which he served during the 1930s.

Collections of court decisions are rare in Islamic legal literature. [7] In the one-page introduction to the collection, Shakir explained that he was motivated by the scholarly interest and the novelty and sincerity of opinion that they offered (bada li an alma[CHARACTERS NOT REPRODUCIBLE IN ASCII]a hadhihi al-ahkam li-ma fi-ha--aw fi ba[CHARACTERS NOT REPRODUCIBLE IN ASCII]diha--min tarafa fi al-bahth, aw jidda fi al-ra[CHARACTERS NOT REPRODUCIBLE IN ASCII]y, aw saraha fi al-qawl). He added that although not all his judgments were immune from error, he had made his best effort to judge rightly. He saw no reason to avoid confrontation with scholars who opposed his views. He also said that because he respected his own view exactly as he respected the views of the others, he was not willing to change his mind unless he was presented with persuasive evidence supporting an alternative view.

The collection of court decisions is a sign of the modern era and points to Western legal influence, especially with regard to the authoritative status of judicial precedent. As a qadi, Shakir himself was willing to accept as supporting evidence earlier decisions by other courts submitted to him by one of the litigants; [8] and he supported his own decisions by citing earlier decisions issued by him or by other courts. [9] It is clear that Shakir considered judicial precedent as a legitimate source of inspiration and hoped that his decisions would serve as a guiding light to other qadis. (However, as will be shown below, he refused to accept a decision by a higher court as binding on him.) Other signs of European legal influence on Shakir's collection are the indices appearing at the end (the first pertaining to legal principles and the second to statutory legislation mentioned in each decision), and perhaps the fact that he concealed all identifying details relating to the litigants (which were included in the original decision), thereby manifesting his concern for the privacy of the litigants.

A brief study of the twenty-four decisions included in Shakir's collection according to their topics offers us some idea about his legal and social agenda. The lion's share of the decisions deals with the restriction of the jurisdiction of the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts in favor of the civil courts and in favor of the communal courts of religious minorities; [10] and with the authority of statutory legislation vis-a-vis the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a. A few decisions deal with various aspects of care for children, such as custody, maintenance, and education, and reflect Shakir's social sensitivity.

SHAKIR'S ATTITUDE TOWARDS THE RESTRICTION OF THE JURISDICTION OF THE SHARI[CHARACTERS NOT REPRODUCIBLE IN ASCII] A COURTS BY THE STATE

Shakir accepted the notion that an Islamic ruler (in this case, the Egyptian monarch) has the right to restrict the jurisdiction of his judges (this is called takhsis alqada[CHARACTERS NOT REPRODUCIBLE IN ASCII]), because they are his authorized agents and representatives. The ruler is however the defendant of the personhood, honor, and property of his subjects, and he is not entitled to prevent any one of his legal representatives from hearing a certain claim unless the ruler authorizes someone else to entertain the same claim and pass a judgment on it; or else, the ruler hears the claim himself and passes his own ruling. This is in line with the order of Allah to the Prophet to judge between the people according to what was sent to him from heaven, since the ruler is the successor of the Prophet and the people must obey him as they obey Allah and the Prophet. It is however wrong for a ruler to prevent all of his judges from entertaining a claim because that would lead to the loss of legal rights. It is true, argued Shakir, that the jurists s tipulated that certain kinds of claims should not be heard, but only in cases in which there is evidence that the plaintiff has no justification for submitting his claim--as, for example, when he submits the claim more than fifteen years subsequent to the event which is the subject of the claim. [11] Such cases, however, should not be considered an application of the principle of takhsis al-qada[CHARACTERS NOT REPRODUCIBLE IN ASCII], because the jurisdiction in such cases is not transferred to an alternative legal agency.

Shakir thought that the reform legislators had committed a grave error in applying the principle of takhsis al-qada[CHARACTERS NOT REPRODUCIBLE IN ASCII]: whenever they were asked to treat a social problem, they used the strategy of takhsis al-qada[CHARACTERS NOT REPRODUCIBLE IN ASCII] in order to prevent the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a courts from entertaining the case, without transferring the competence to judge the same case to an alternative judicial body. By this strategy, the legislators wished to cure social hardships, yet the result was that they inflicted graver damage on the people by preventing them from realizing their legal rights.

In this connection, Shakir referred specifically to the topic of valid shar[CHARACTERS NOT REPRODUCIBLE IN ASCII]i marriages, which had not been registered formally, as required by statute. [12] A few of these marriages were denied at a later stage by one of the spouses who wanted to prevent the other spouse from realizing his or her legal rights, such as maintenance (in the case of a wife) or obedience (in the case of a husband), through the courts. According to the reform, the courts were prohibited from entertaining any matrimonial claim that was denied by one of the spouses, in cases in which a formal marriage contract was not presented by the plaintiff. This legal situation, argued Shakir, left one of the spouses, especially the wife, who was more vulnerable socially, in a precarious position, since she could neither obtain maintenance from her husband nor marry another man. In that way, argued Shakir, marriage contracts lost their binding effect and the reform, instead of preventing the denial of legal rights, did the opposite.

To correct this weakness of statutory legislation, Shakir suggested that the shari[CHARACTERS NOT REPRODUCIBLE IN ASCII]a court should be allowed to entertain every matrimonial case. If a qadi established that a valid …

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Publication information: Article title: An Egyptian Judge in a Period of Change: Qadi Ahmad Muhammad Shakir, 1892-1958. Contributors: Shaham, Ron - Author. Journal title: The Journal of the American Oriental Society. Volume: 119. Issue: 3 Publication date: July-September 1999. Page number: 440. © 1999 American Oriental Society. COPYRIGHT 1999 Gale Group.

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