Negligence and Jihan's Law
As per my last post, the Iraqi Federal Supreme Court has ruled on the question posed therein, and indicated that indeed, the "bloc with the most representatives" can be a post election bloc or a pre election bloc, meaning effectively that Maliki wins this debate. I'll write about this elsewhere. What I wanted to mention today is a matter I had occasion to revisit recently in my Islamic law class this morning, a matter I discuss in my recent scholarship but I thought was worth a blog entry.
One of the most controversial aspects of Egypt's famous Jihan's Law, passed by Sadat (and struck down by the Supreme Constitutional Court in its first manifestation) involved the required legal payment of alimony (maintenance is the Islamic term, referring to a husband's marital obligation generally to provide for his wife) from a husband to a wife for two years following marriage dissolution if the husband was at fault for the divorce. The Qur'an imposes a three month required maintenance, not two years. You could think of the objection to Jihan's law really in two different ways. The first would be that the only rules that can exist are those established as derived from foundational texts by the jurists--that the classical law is the only legitimate law, at least where its rules can be found (meaning maybe you can make up traffic law, but not anything where God has spoken). We can dismiss this immediately as inconsistent with Islamist aims elsewhere--countless areas of law are not the codification of classical rules but something very different. The Civil Code is not the codification of classical rules, so to insist on exact identity won't work as a theory.
The second argument would then be one of repugnancy. It's not every rule has to come from classical sources, it's that any rule cannot be repugnant to those sources. So maybe if classical law says nothing about a general theory of contract, though the Civil Code does, it's not repugnant to create one, the jurists didn't say you couldn't have one and you can go through juristic texts to try to find the origins of such a theory. But that's not what's being done in alimony, the argument would go. In alimony, God decided three months was fair, and you up and decided two years was better. In other words, to change God's rule is repugnant, but to supply a broader theory, that clarifies contract law but that doesn't necessarily change any particular rule, might be okay. That's a broad, but sustainable idea of repugnancy.
The problem is, that still doesn't work. You still have inconsistency. Note this remarkable section from the most authoritative commentator of the Iraqi Civil Code, Abdul Majid Al Hakim
And it should be remembered that the Islamic fiqh . . . rendered the perpetrator of a harmful act a guarantor of the consequence of his act, irrespective of negligence or intention, or knowledge or discernment, so that the direct act that caused the harm guarantees it even if he was not negligent or intentional.
That's how I read the classical rules too, though it doesn't matter how I read it, it matters how Iraqis read it, and this authoritative commentator of the Civil Code, who professes his preference for the Islamic rules (that's what the (. . .) section above is, a diatribe on how great the Islamic rules are, indicates they are not the Iraqi rules), says this. Then he says that Iraq adopts the broader notion of negligence, to the derogation of rules of Islam created, in his words "14 centuries earlier."
Ah, so God has a rule here too, which in His Infinite Wisdom you would think we should take as seriously. God says if you directly cause the harm (ie you hit a guy's donkey which jumps out into the middle of the street so quickly you couldn't have avoided the accident) you compensate for the harm irrespective of fault. You don't directly cause the harm (you ply your friend with drinks knowing he has to go home and convince him to drive afterwards knowing he's terribly drunk) and you are not liable, again even if you were at fault. That's God's rule, our Iraqi commentator likes it, but it ain't the law, in Egypt or Iraq. It's as clear a rule as the maintenance following the three month idda yet lies ignored, and uncontested by Islamist's. I guess you could excuse it applying a looser standard of repugnancy (God never said you could ONLY compensate for direct harms), but then again, if that's the standard, what's the problem then with a two year alimony payment, becuase after all God didn't say you could ONLY pay maintenance for three months?
So it's not about repugnancy, because no standard seems to render these two cases consistent. It's not about strict adherence to classical rules, because we aren't doing that either. It's not about family law having more clear and detailed rules, the rules on recovery for injury are awfully clear, and awfully foundational and in this one context pretty reasonably detailed. What's it about then? Patriarchal societies, traditionalist hegemonies, preserving old orders when it serves the powerful elements of society, discarding them when it does not. material considerations concerning impact on societal wealth might be involved as well (shari'a forever, unless it costs us money). All plausible explanations, all more plausible to my mind to describe what's really happening than a legal theory or "repugnancy" which cannot reconcile itself in even the most basic of circumstances.
HAH
One of the most controversial aspects of Egypt's famous Jihan's Law, passed by Sadat (and struck down by the Supreme Constitutional Court in its first manifestation) involved the required legal payment of alimony (maintenance is the Islamic term, referring to a husband's marital obligation generally to provide for his wife) from a husband to a wife for two years following marriage dissolution if the husband was at fault for the divorce. The Qur'an imposes a three month required maintenance, not two years. You could think of the objection to Jihan's law really in two different ways. The first would be that the only rules that can exist are those established as derived from foundational texts by the jurists--that the classical law is the only legitimate law, at least where its rules can be found (meaning maybe you can make up traffic law, but not anything where God has spoken). We can dismiss this immediately as inconsistent with Islamist aims elsewhere--countless areas of law are not the codification of classical rules but something very different. The Civil Code is not the codification of classical rules, so to insist on exact identity won't work as a theory.
The second argument would then be one of repugnancy. It's not every rule has to come from classical sources, it's that any rule cannot be repugnant to those sources. So maybe if classical law says nothing about a general theory of contract, though the Civil Code does, it's not repugnant to create one, the jurists didn't say you couldn't have one and you can go through juristic texts to try to find the origins of such a theory. But that's not what's being done in alimony, the argument would go. In alimony, God decided three months was fair, and you up and decided two years was better. In other words, to change God's rule is repugnant, but to supply a broader theory, that clarifies contract law but that doesn't necessarily change any particular rule, might be okay. That's a broad, but sustainable idea of repugnancy.
The problem is, that still doesn't work. You still have inconsistency. Note this remarkable section from the most authoritative commentator of the Iraqi Civil Code, Abdul Majid Al Hakim
And it should be remembered that the Islamic fiqh . . . rendered the perpetrator of a harmful act a guarantor of the consequence of his act, irrespective of negligence or intention, or knowledge or discernment, so that the direct act that caused the harm guarantees it even if he was not negligent or intentional.
That's how I read the classical rules too, though it doesn't matter how I read it, it matters how Iraqis read it, and this authoritative commentator of the Civil Code, who professes his preference for the Islamic rules (that's what the (. . .) section above is, a diatribe on how great the Islamic rules are, indicates they are not the Iraqi rules), says this. Then he says that Iraq adopts the broader notion of negligence, to the derogation of rules of Islam created, in his words "14 centuries earlier."
Ah, so God has a rule here too, which in His Infinite Wisdom you would think we should take as seriously. God says if you directly cause the harm (ie you hit a guy's donkey which jumps out into the middle of the street so quickly you couldn't have avoided the accident) you compensate for the harm irrespective of fault. You don't directly cause the harm (you ply your friend with drinks knowing he has to go home and convince him to drive afterwards knowing he's terribly drunk) and you are not liable, again even if you were at fault. That's God's rule, our Iraqi commentator likes it, but it ain't the law, in Egypt or Iraq. It's as clear a rule as the maintenance following the three month idda yet lies ignored, and uncontested by Islamist's. I guess you could excuse it applying a looser standard of repugnancy (God never said you could ONLY compensate for direct harms), but then again, if that's the standard, what's the problem then with a two year alimony payment, becuase after all God didn't say you could ONLY pay maintenance for three months?
So it's not about repugnancy, because no standard seems to render these two cases consistent. It's not about strict adherence to classical rules, because we aren't doing that either. It's not about family law having more clear and detailed rules, the rules on recovery for injury are awfully clear, and awfully foundational and in this one context pretty reasonably detailed. What's it about then? Patriarchal societies, traditionalist hegemonies, preserving old orders when it serves the powerful elements of society, discarding them when it does not. material considerations concerning impact on societal wealth might be involved as well (shari'a forever, unless it costs us money). All plausible explanations, all more plausible to my mind to describe what's really happening than a legal theory or "repugnancy" which cannot reconcile itself in even the most basic of circumstances.
HAH
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