Studying and Writing about Courts in Interdisciplinary Contexts
Nahda Shehada
I have had hard time presenting my work to Middle Eastern and development scholars, who have been heavily influenced by development (read modernist) discourse and who kept seeing the shari’a courts (and judges by extension) as part of the “past” that should be abolished. While I started from a background in development studies with a particular focus on gender, it was in the shari’a courts that I was confronted with the dynamics of law and social justice in an extremely difficult setting — and it was there that I have been inspired to look deeply at the reciprocal determination of jurisprudence, personal strategies and gender asymmetries. The issue at stake was not only who succeeds in claiming the right to engage in and voice authoritative opinions about interpreting Islamic sources, but equally how “modern” appeals for “gender equality” clash with claims of cultural and religious specificities in the struggle for power and hegemony between opposing Palestinian political groups in the specific context of a nation still struggling for independence. I tried to come to terms with these discrepancies in my article, and hope I have done so!
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For more information about Shehada’s article, “Flexibility versus Rigidity in the Practice of Islamic Family Law,” in the Political and Legal Anthropology Review, here is an overview:
The last decades have witnessed a sustained critique of the mainstream Orientalist notion that classical Islamic family law was rigid, inflexible, and homogeneous. Many historians have used innovative methods to demonstrate that jurists and judges in precodification times enjoyed the intellectual space to translate the principles of the Qur’an and Sunna into socially workable rules. Yet, perhaps unwittingly, these authors have presented classical Islamic family law as flexible by contrasting it with postcodification legal practice. The latter is represented as characterized by rigidity and textuality due to, among other things, the prominent role of the nation-state in many Muslim countries. On the basis of extensive fieldwork in 2002-2003, this article juxtaposes the claim of inflexibility with ethnographic material in order to properly conceptualize the present-day practice of Islamic family law. I argue that the role of the state should not be overemphasized at the expense of the analytical significance of actors’ agency, including that of the judges, in effecting change. The analysis shows that, despite codification, Islamic family law in many Muslim countries is still characterized by flexible, heterogeneous, and context-bound implementation.
Association for Political and Legal Anthropology 