Abstract
In the standard historical narrative, modernizing reform in nineteenth-century Egypt included the drafting of “secular” laws governing most areas of life except family affairs. Muslim family law is often said to have been “untouched” by reform until after the First World War. Codification of family law began with Law No. 25 of 1920, which concerned marriage and divorce. This law and the subsequent Law No. 25 of 1929 concerning divorce are held up as examples of the modernist method of takhayyur, or the “selection” of legal norms from diverse schools of law so as to achieve a desired end, as opposed to rigid adherence to the established Hanafi school of law. These laws are also seen as advancing women’s rights by enabling them to collect arrears of maintenance from their husbands more easily and to annul their marriages for non-support, desertion, or the disappearance of their husbands.
This paper argues that the laws of the 1920s were not the beginning of Muslim family law reform but a second stage in the process. The nineteenth century witnessed reforms in the organization and procedures of the Sharia courts. These procedural reforms abolished a centuries-old system of legal pluralism, in which the doctrines of the four Sunni schools of law were applied, by restricting the courts to applying the Hanafi doctrine. Until then Egyptians availed themselves of the school of law most favorable to the outcome they desired: a kind of forum shopping or venue shopping that allowed a degree of flexibility in the applied law that was lacking in the doctrines of the individual schools. As for married women, Hanafi law made it difficult for them to collect arrears of maintenance from their husbands, and it did not allow them to obtain a divorce even when their husbands failed to support them, deserted them, or disappeared.
Contrary to the accepted narrative, the laws of the 1920s did not advance women’s rights beyond what was the historical practice. These laws restored some (and only some) of the legal options women had lost nearly a century earlier due to the procedural reforms. The modernist method of takhayyur was necessitated by the abolition of pluralism, and perhaps was inspired by the memory of the old system.
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