Judicial activism in the field of Egyptian shari‘a-derived family law

By Monika Lindbekk
Submitted to Session P4905 (Egypt's Judiciary Since the Revolution, 2017 Annual Meeting
Law
Egypt;
19th-21st Centuries;
LCD Projector without Audio;
This paper analyzes aspects of judicial activism in the field of Egyptian personal status law for Muslims. In a country where reform of the current personal status codes is politically fraught, family court judges perform an important semi-legislative task in interpreting and applying the law. Taking this as a point of departure, the paper argues that courts are an important site for exercising Islamic authority and positioning citizens as religious subjects. Among other things, family courts in Egypt contribute to an ongoing discourse on what constitutes the ideal family. In doing so, family court judges help consolidate increasingly hegemonic notions of the nuclear family and conjugal marriage clothed in the Quranic language of mercy and amity (rahma wa mawadda). Thus, contemporary family courts continuously re-inscribe shari‘a in state law and construct its meaning in a way which differs from classical Islamic jurisprudence (fiqh). This tendency has been reinforced by the introduction of computer technology with the stated aim of rationalizing legal practice by making it more uniform. The aforementioned developments in the family courts of Egypt resemble those that have occurred over the past few years in family courts of Tunisia and sharia courts of Malaysia where the same ‘rationalized Islam’ (in the sense of unified and standard) has been found to be at work. The introduction of computerization, which involves the same paragraphs being reproduced over and over through the medium of templates, provides a powerful impetus for the streamlining of judicial practice. However, in the years following the 2011 uprising, individual judges also used the courts as a platform to articulate alternative discourses. In the post-revolutionary environment, they clearly crossed the border between adjudication and legislation by participating in public debate and becoming members of a legislative committee tasked with comprehensive family law reform.This paper analyzes the implications of judicial activism against a background where old and new actors and institutions competed over the right to interpret shari‘a in an authoritative way.