The Practice of Judging
Résumé
It is commonly assumed that personal status is, in Egypt and in many other Arab countries, the last stronghold of Islamic law. However, I contend that, when attempting to determine the extent to which this or that part of the law is orthodoxically or heterodoxically Islamic and whether this or that part of the law can or cannot be attributed to some historical development of Islamic law, one imposes the structure of the legal phenomena and activities instead of trying to discover the manner in which they operate. Thereby, research misses the phenomena it seeks to document. Central to these phenomena are the ways in which people understand and manifest their understanding of what any given situation is about, orient themselves to any given setting and its constraints, and behave and act in a more or less orderly manner within such a spatially and temporally situated context. This is not something that can be observed from any overhanging standpoint; rather, it must be documented by the close scrutiny of how people actually and situationally understand their environment, make sense of it, try to find their way within its constraining framework, and produce, reproduce, and transform the social order. This paper seeks to describe some aspects of the practice of judging in an Egyptian context. In the first section, I examine literature that focuses on the notion of harm (darar) as a ground for divorce. I argue that its argument relies on one main assumption: Egyptian law, in the field of personal status law at least, belongs to the family of Islamic law and, as such, must be read against the background of the theoretical, formal, trans-historical and trans-geographical body of sharî'a. However, this literature never addresses the practice of Egyptian personal status law as it unfolds during the many steps that precede the production of a formal ruling. Cases remain very abstract and are in some way homogenized, giving the impression that 'harm' is a concept that has a substantial definition outside the practices that embody it. In the second section, I use some material from one recent Egyptian case involving judicial divorce granted on the ground of the harm caused to the wife to show how the notion of harm is dealt with in a practical, unproblematic, routinized, and commonsensical way. In this context, the many people engaged in the production of a legally relevant description of facts to which legally relevant consequences are attached pay little attention to the question of 'Islamic law'. First, I concentrate on people's orientation to procedural correctness. Second, I examine the production of legally relevant categories.
Domaines
Sociologie
Origine : Fichiers produits par l'(les) auteur(s)
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