Abstract
Muhammad Qadri Pasha’s code of “personal status law,” published in 1875, was a manual of reference in Egypt’s Mixed Courts and National (Ahli) Courts, and was taught in the Khedival Law School. Thus although not enacted as law, it significantly influenced modern Egyptians’ understanding of Muslim family law. It also was introduced in Sudan, Palestine, and Iraq under British rule, and was a source for Morand’s Algerian code (1916) and the Syrian personal status law of 1953. Qadri attended the School of Languages directed by Rifa`a al-Tahtawi, and later taught there. He participated in the translation of the French codes into Arabic and became an expert in comparative French and Islamic law. It is likely that he was influenced by French scholars’ discussion of the need to “systematize and rationalize” Islamic law in a code. The influence of colonial Algerian jurisprudence is evident in his borrowing of the term statut personnel (al-ahwal al-shakhsiyya) to refer to Muslim family law administered within an otherwise French civil law system. His code resembles a European code, with numbered chapters, sections and paragraphs, for easy reference. In addition to addressing the influences on and of Qadri’s personal status code, this paper will discuss how the process of codification transformed the Sharia, originally a jurist’s law, into positive law. The illustrative issue is whether and how far a husband is permitted to force his wife to move from the place they were married. A comparison of Qadri’s code with the works of leading nineteenth-century jurists shows that he opted for the contemporary juridical practice (`amal), whereby a husband was permitted to move his wife less than a three days’ journey. In the discussion in the juridical texts it is clear that this was a practice based on a contingent interpretation (ijtihad). Yet by inscribing it as a rule (hukm) and eliding the discussion of the juridical history of this question, Qadri gave that practice a greater degree of authority than it would have had otherwise, and closed the door to further discussion of the issue. In sum, by rendering the Sharia in the form of positive law, codification radically transformed it. Although Qadri’s code was the work of a civil servant in a non-colonized state, it was the product of transnational flows of colonial knowledge, including the need to “systematize and rationalize” Sharia.
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