Women in Shari\u27ah Courts: A Historical and Methodological Discussion

This Article focuses on qadis and courts before modern legal reforms with particular emphasis on the life of women and their interaction with the courts. A number of issues will be discussed and points made pertaining to the laws and madhahib [Islamic legal schools] applied in courts, the hierarchies and roles of qadis, and the accessibility of the legal system and knowledge of court procedures to the general public. Court culture, personnel, and record-keeping will also be discussed, as will the philosophy behind the law. The author hopes to illustrate that a viable court system existed before modernization. Although precedent played an important role, and qadis had certain rules to follow, the court system was nonetheless linked to society. Qadis were guided by ‘urf [traditions] familiar to the people they served and judged according to the madhhabs [schools of law] they belonged to as well as their own judgment. The system was flexible and provided an avenue for the public to achieve justice and litigate disputes rather than to enforce a particular philosophy of social laws and norms formulated by the State. Women had clear rights to sue in court. The flexibility of the system allowed women to determine their marriage contracts and the conditions under which they lived. Women also had complete access to divorce a husband they did not want to be with, a far cry from modern law which adopted rules of placing women under the full control of their husbands. Under modern law, with certain exceptions, husbands must agree before divorce takes place. Because pre-modern Shari‘ah court records were not used as precedent for modern Shari‘ah courts, the rights of women, including the right to work and determine their marriage contracts, were lost. By rediscovering these rights through court records, contemporary personal status laws can be questioned. Particularly important here is questioning the religious sanctity that the State gives to personal status laws on the books in Muslim countries today