Academic journal article Ethnology

When Is a Divorce a Divorce? Determining Intention in Zanzibar's Islamic Courts

Academic journal article Ethnology

When Is a Divorce a Divorce? Determining Intention in Zanzibar's Islamic Courts

Article excerpt

Establishing intention in legal acts is a crucial element of judicial reasoning in Zanzibar's Islamic courts. This article explores how Islamic judges determine the validity of divorce-related actions through assessing the intention of the actors involved. Examining two recent cases from a court in rural Zanzibar demonstrates how a judge determines the intention behind actions. The judge considers the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. (Zanzibar, Islam, intention, divorce, judges)

Establishing the presence or absence of intention in legal acts is a crucial element of judicial reasoning in Zanzibar's Islamic courts. This article examines the way in which Islamic judges, kadhis, determine the validity of divorce-related actions through assessing the intention of the actors involved. Intention, or nia in Kiswahili (from the Arabic niyya), is an important Islamic theological concept with great legal relevance. Also, it is a significant part of the discourse surrounding divorce among lay people in Zanzibar. In marital disputes, the kadhi understands and applies the principle of intention in light of changing cultural norms of gender roles in marriage and with respect to views of individual agency in marital practice and divorce.

Examining two recent cases from a court in rural Zanzibar will demonstrate exactly how a judge determines the intention behind actions by considering the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. In assessing the relationship between outward actions and intangible inner states, the judge considers the possible scenarios in which a divorce-related legal action can occur. He determines the most likely meaning of the action through considering the evidence presented in court by litigants and witnesses in light of such scenarios.

The cases examined here are examples of disputed divorce, those in which husband and wife disagree whether a valid divorce has taken place outside of the court. A detailed look at the proceedings of two similar cases shows the ways in which the kadhi determines the validity of out-of-court divorce actions through assessing the intentions of the actors involved. The cases show that establishing validity is not simply a matter of determining whether the divorce has been issued, but hinges on whether the proper intention was there when the divorce action was performed. If the meaning of the action relies on the intention, how, in such circumstances, can the intention of the actor be established? Messick (2001:178) has written, "Given the assumed gap between forms of expression and intention, legal analyses amount to attempts to erect bridges from the accessible to the inaccessible. The interpretive work of evaluating spoken and written expression ... represents such a bridging effort." This article demonstrates one jurist's practice of bridging through his recognition of the multiple interpretations of actions and the motivations of the actors based on the presupposition of scenarios of male-female, husband-wife interactions at this particular point in Zanzibari social and cultural history. More broadly, the research contributes to the anthropology of law and Islam. It builds on the work of contemporary scholars who argue that Islamic law should not be considered immutable and extracultural, but rather should be acknowledged as flexible, culturally located, and open to interpretation (Haeri 1989; Messick 1993; Bowen 1999; Mir-Hosseini 1993). In much of the Muslim world, Islamic family law is part of the state legal system, and many states make provisions for primary-level Muslim courts. There is a growing, though still small, literature on how Islamic law is interpreted and applied by jurists at the local level, and how litigants apply legal knowledge and use Islamic courts (e.g., Rosen 1989; Dwyer 1990; Hirsch 1998; Mir-Hosseini 1999). Any study of courtroom practice and judicial reasoning must take into account the broader picture; for "a reading of the record alone--or for that matter, observation of the entire courtroom proceeding--would not reveal the complexities of the case" (Rosen 1995:197). …

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