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

Article excerpt

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). …