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Published online by Cambridge University Press: 05 February 2009
The fatwā is the legal opinion of a jurist not institutionalized in the classical sense: it is intended to elucidate, at the request of an inquirer, the position as to a legal issue; it is not binding on the inquirer or anyone else; unlike the judgement of a qāḍī, it is not enforceable. The fatwā that is the object of this paper belongs to a collection of legal documents gathered from tribal arbitrators in the Judean Desert and from the archives of sharī‘a courts. Those documents deal with various legal matters: personal status, torts (homicide and assault), contracts and property, land, etc.; most date from the twentieth century and some from the last quarter of the nineteenth. The collection has been used in research on the Islamization of tribal society in the Judean Desert in process of sedentarization.
2 The documents were collected with the assistance of the late Dr. Avshalom Shmueli of the Department of Geography of Tel Aviv University. The research was conducted under the auspices of the Harry S. Truman Institute for the Advancement of Peace of the Hebrew University of Jerusalem, and supported by the Fund for Basic Research administered by the Israel Academy of Sciences and Humanities.
3 Layish, A. and Shmueli, A., ‘Custom and Sharī'a in the Bedouin family according to legal documents from the Judean Desert’, BSOAS, XLII, 1, 1979, 30Google Scholar.
4 For more details see Layish-Shmueli, , 32–42; Layish, A., ‘Challenges to customary law and arbitration: the impact of Islamic law upon settled Bedouin in the Judean Desert’, Tel Aviv University Studies in Law, v, 1980–1982, 206–21Google Scholar.
5 For more details see Layish, A., ‘The Islamization of the Bedouin family in the Judean Desert as reflected in the sijill of the sharī'a court’, in Marx, E. and Shmueli, A. (ed.), The changing Bedouin (New Brunswick, N.J., 1984), 41–50Google Scholar.
6 Layish, A., ‘Customary khul as reflected in the sijill of the Libyan sharī'a courts’, BSOAS, Li, 3, 1988, 435–8Google Scholar; idem, Divorce in the Libyan family: a study based on the sijill of the sharī'a courts of Ajdābiyya and Kufra (Jerusalem and New York, 1991), 185 ff.
7 Oweidi, A. A. S. [‘Abbādī], ‘Bedouin justice in Jordan. The customary legal system of the tribes and its integration into the framework of the state policy from 1921 onwards.’ Ph.D. thesis, University of Cambridge, 1982, 85 fGoogle Scholar.
8 The shar،ī mechanism of suspended repudiation distinguishes between repudiation intended to ensure the wife's obedience to the husband, and repudiation involving an oath lending additional weight to some utterance of the husband in which case there is no intention of divorce. In both cases the divorce becomes effective upon the fulfilment of the condition or contingency mentioned in the oath. See Layish, A., Women and Islamic law in a non-Muslim state (Jerusalem and New York, 1975), 137 f. and 156 f.;Google ScholarAnderson, N., Law reform in the Muslim world (London, 1976), 123 fGoogle Scholar. On the haram oath, see Anderson, J. N. D., Islamic law in Africa, new impression (London, 1970), 362–3Google Scholar.
9 All the schools agree that the intermediate marriage must be contracted in good faith and must be consummated before it can be dissolved; the woman can only remarry her former husband upon the expiration of the waiting period (‘idda). However, there are differences between the schools as to the application of that principle. The Hanafī school holds that the intermediate marriage is valid even with the (unexpressed) intention to render the woman lawfully permitted again to her former husband (bi-qaṣd al taḥlīll), while other schools hold that such a marriage is null and void, short of the requirements of an intermediate marriage. See Layish, , Divorce in Libya, 99–100 and the sources mentioned at note 2; Layish, Women, 173 fGoogle Scholar.
10 Anderson, Legal reform, 73 and 124.
11 The legal opinion is not dated; the case may have occurred before the enactment of the Personal Status Law of 1951.
12 For more details see Layish, A., ‘Ha-Mimsad ha-dati ha-Muslimi ba-Gada ha-Ma'aravit ba- Tequfa ha-Yardenit’, Medina, Mimshal Wiḥasim Benleumiyim, 11, 1977, 97–108Google Scholar.
13 Although the size and spacing of the letters are different in the question and the responsum, the handwriting is the same; it is probably that of the Shāfi،ī 'ālim.
14 For a detailed analysis of the three alternative solutions, with an explanation of the legal mechanisms, see the notes on the translation of the fatwā.
15 Frank Stewart, who studied the tribal law of the Aḥaywāt in central Sinai, claims that the Bedouin there were very conscious agents of Islamization, e.g., when in town they would see the shaykh al-dīn and obtain from him all kinds of information about proper Muslim practice, which they would then transmit to their fellow tribesmen. Sometimes they would record his answers on tape so as to be sure to get them right. They were actively searching for information that would allow them to live a proper Muslim life. (Stewart's letter to the author of 10 October 1989.)
16 cf. Layish, , Divorce in Libya, 205, and the source indicated in n. 50Google Scholar.
17 Schacht, J., An introduction to Islamic law (2nd ed., Oxford, 1966), 78 ffGoogle Scholar.
18 See Layish-Shmueli, , 52 f.; cf. Ziadeh, F., ‘Fatawa and legal systems’, a paper presented to the Granada conference (see n. 1 above), 13Google Scholar.
19 See Layish-Shmueli, 54.
20 A formula usual in requests for a formal legal opinion (istiftā'). When Bedouin of the Judean Desert present an oral pleading (ḥujja), to an arbitrator-judge, they usually employ the formula aysh qawlukum or aysh ra'yukum, which means a request for a judgement. On the similarity between a request for the legal opinion of a muftī and the ḥujja in a customary proceeding see Layish, A., Bedouin of the Judean Desert: Islamization of a tribal society: a study based on legal documents of arbitrators and sharī'a courts (in preparation). That formula is usual also in requests for legal opinions of shar،ī qāḍīs in CyrenaicaGoogle Scholar. See Layish, A. and Davis, J., Libyan society: a selection of documents from the sijill of the Sharī'a Courts of Ajdābiyya and Kufra, Academon (Jerusalem, 1988), Document no. 158, 124Google Scholar.
21 Although this formula would seem to consist of two independent sentences, it should be construed as a suspended repudiation involving an oath, intended to emphasize the man's determination to prevent his brother's marriage because of an amount of dower regarded as excessive; cf. Layish, Women, 114, 138 and 235); the literal meaning of taḥallala is ‘to render [the daughter] lawfully permitted’, which should here be interpreted in the context of marriage. Confirmation of this view may be obtained from the responsum, the legal opinion of the Shāfi،ī ‘ālim; see below.
22 Under Islamic law of obedience the wife is expected to join her husband at the place of residence chosen by him; as the brother lived in the same house, the bride's entry into the shaykh's house indicates that she has indeed married his brother. This formula, too, should be understood as referring to a suspended repudiation involving an oath.
23 The suspended repudiation seems to have made an impact upon the bride's father: he agreed to reduce the dower to an amount acceptable to the other party, thus removing the obstacle to the marriage.
24 Jawāb, in this document, is synonymous with fatwā. This use of the term is common among the Bedouin and occurs also in the sharī'a courtsGoogle Scholar. See Layish, , Divorce in Libya, 184Google Scholar. Cf. Layish, , Bedouin of the Judean DesertGoogle Scholar.
25 The closing passage, a typically Islamic element, refers to wages and reward in the next world. This embellishment for shar'ī indoctrination purposes is usual also among the Cyrenaican Bedouin as a closing formula in requests for a religious legal opinion. See, e.g., Layish-Davis, , Documents nos. 156/2–3 on p. 122Google Scholar. Frank Stewart claims that, though ajr and thawāb may be typically Islamic elements, they are long-established among the Bedouin. He often heard the words himself in formulas the Bedouin used in the context of sacrifices, and Musil (Arabia Petraea, III, Wien, 1908), from the beginning of the century, cites them more than once (e.g., pp. 452 f.) (Stewart's letter to the author of 10 October 1989.)
26 i.e. the person requesting the legal opinion.
27 Of the Ḥamūlat al-Radā'da ‘Arab al-‘Ubaydiyya. This tribe lives east of Bayt Sāḥūr in the Jerusalem-Bethlehem area. I am indebted to the late Shaykh ‘Alī Ḥasan for placing this document at my disposal.
28 i.e. repeated the suspended repudiation involving an oath.
29 See Schacht, Introduction, 116.
30 The affirmative implies the negative: if he did not intend to divorce the wife when using the oath of prohibition, then she is not divorced. This may be said to be a hinted instruction as to how the shaykh may extricate himself from his predicament: all he has to do is to declare that he did not intend to divorce his wife.
31 A ṭalāq mukarrar entails the legal consequences of a revocable (raj،ī) divorce, which enables the wife to be reinstated without a new marriage or dower (see below) after each of the first two repudiations.
32 i.e. somebody who will contract an intermediate marriage with her, and then divorce her, in order that she may be permitted to her former husband again.
33 A revocable (raj'ī) divorce does not dissolve the marriage immediately. The husband may reinstate the wife during the waiting-period without her consent and without a new marriage or dower; the reinstatement is effected by an express verbal utterance or by meaningful conduct. The requirement of the waiting-period applies where the marriage has been consummated; the waitingperiod is three menstrual periods or, where the woman is pregnant, lasts until she gives birth or miscarries (Schacht, Introduction, 166; Anderson, Legal reform, 101 and 102; Layish, Women, 177 and 178). This, too, is a possible way of remedying the situation if it is found that the husband indeed intended to divorce the wife but pronounced the oath of prohibition only twice.
34 If she completes the waiting-period without the husband having exercised the option of reinstating her, the divorce becomes irrevocable (bā'in) with all the legal consequences attending dissolution. See Layish, Women, 173.
35 Conditions of the validity of a marriage are offer and acceptance (ījāb wa-qabūl), the use of terms expressly relating to marriage and the presence of witnesses at the session of the marriage contract. Cf. Schacht, Introduction, 121 and 161.
36 In the case of a defective marriage, the couple must at once be separated. If the marriage has been consummated, some of the numerous legal consequences of a valid (ṣaḥīḥ) marriage apply, such as the payment of dower, legitimacy of the children, and the waiting-period. See Schacht, Introduction, 163.
37 Muhammad b. Idrīs al-Shāfi'ī (d. 204/820), regarded as the founder of the school of law named after him.
38 Here the ،ālim probably hints at a further possibility of extricating the shaykh from his quandary. If it is found, as is very likely, that the shaykh did not marry his wife in accordance with all the niceties of the sharī'a or, in other words, if the marriage was performed according to tribal custom, i.e. was a marriage by ‘aṭā’ or hiba, very common among the Bedouin of the Judean Desert (see Layish-Shmueli, 35 ff. and the sources indicated there), then all that was required to legalize it was to separate the couple and to reunite them by a flawless shar'ī marriage. This procedure of course involves some unpleasantness (inter alia, the court must affiliate the children to their father, which will no doubt be done in reliance on his acknowledgement), but considering the alternative of an intermediate marriage it offers vast relief.
39 Abū Shujā' Aḥmad Ḥasan Aḥmad (b. 434/1042–43), a famous Shāfi'،ī jurist and qāḍī, whose family originated from Iṣfahan. He wrote a compendium of Islamic law entitled al-Ghāya fī'l-Ikhṭiṣār or al-Mukhtaṣar or al-Taqrīb which promoted the spread of the Shāfi'ī school. It is the subject of many commentaries. For an interpretation of the quotation from his treatise occurring in the falwā, see, for instance, Sharḥ al-'allāma al-shaykh Muḥammad b. Qāsim al-Ghazzī al-musammā Fatḥ al-qarīb al-mujīb 'alā al-kilāb al-musammā bi'l-Taqrīb lil-imām al-'allāma Aḥmad b. al-Ḥusayn al-shahīr bi-Abī Shujā' (2nd ed., Cairo, 1927), 41–2. On questions relating to divorce by an implicit (kināya) declaration—whose validity is contingent on the factor of intent (niyya)—or to revocable (raj'ī) divorce, see ibid., 44–5. Cf. al-Ṣāwī, Aḥmad, Bulghat al-sālik li-aqrab al-masālik 'alā al-Sharḥ al-ṣaghīr lil-quṭb al-shahīr sīdī Aḥmad al-Dardīr, [Mālikī] (Cairo, n.d.), I, 348–9.)Google ScholarSee Schacht, J., ‘Abū Shudjā'’, EI, 2nd ed., 150 f.; C. Brockelmann, Geschichte der arabischen Litteratur (2nd ed., Leiden, 1943), I, 492Google Scholar. 1 am indebted to my colleague, Professor Michael Schwartz, for drawing my attention to Abū Shujā's treatise.
40 Fisq is the opposite of ،adāla for the purposes of testimony. See Schacht, Introduction, 125.
41 Marriage-guardians—like other guardians over someone's person or property—are natural guardians by virtue of blood relationship, in a fixed order according to the degree of their relationship to the ward. The court may, under certain circumstances, appoint a non-relative as guardian.
42 According to the Ḥanafī School, a fully competent woman may marry without a marriage-guardian. However, the marriage-guardian may oppose the marriage if the intended husband does not meet the conditions of equality in marriage (kafā'a). See Schacht, Introduction, 162.
43 An expression of modesty and piety on the part of the ،ālim.
44 The ،ālim modestly ascribes his wisdom to Allāh.
45 It seems that the word ‘al-Shāfī،ī’ is not part of the 'ālim's name but indicates his affiliation with the Shāfi،ī school, a fact of particular importance in relation to the legal opinion. The references to Shāfi'ī sources reinforce this assumption.