Positive Law from the Muslim World 9781108954877, 9781108845212

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Positive Law from the Muslim World jurisprudence, history, practices BAUDOUIN DUPRET Centre National de la Recherche Scientifique Sciences Po Bordeaux

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University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108845212 doi: 10.1017/9781108954877 © Baudouin Dupret 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 A catalogue record for this publication is available from the British Library. isbn 978-1-108-84521-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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‫ﺍﺭﻳﺪ ﺍﻥ ﺍﻋﺪﻝ ﺍﻟﺴﻼﻣﺔ ﻭﺍﻥ ﺍﻓﺼﻞ ﺑﻴﻦ ﺍﻟﺸﺮﻳﻒ ﻭﺍﻟﺪﻭﻥ‬ [I want to return the greetings and separate the noble from the vile] al-Kharimi (Abbasid poet)

To my mother and to Jean-Noe¨l, Joern, and Le´on, my friendly triumvirate, who helped me separate the wheat from the chaff

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Contents

page xiv

Acknowledgments Introduction: Law Properly So Called, from an Islamic Vantage Point part i

the concept of law

27

1 Law as a Concept 1.1 1.2 1.3 1.4

29

Uses and Abuses of the Concept of Law The Concept of Law from Its Zone of Penumbra: The Case of Islamic Law A Conceptual Inquiry Conclusion: The Contingent Concept of Positivism

2 The Great Divide in Legal Discourse: Toward a Global Historical Ontology of the Concept of Positive Law 2.1 2.2 2.3 2.4

A Historical Ontology of the Concept of Law The Positivism of the Science of Law: A Paradigmatic Revolution The Positivization of the Law: Global Positive Law and Its Local Variants For a Historical and Pragmatic Ontology of Law

3 Legal Praxeology: Into Perspective and into Practice 3.1 3.2 3.3

1

Into Perspective: Some Seminal Studies Into Perspective: Ethnographic Re-specification Into Perspective: What Relationships with the Sciences of Law?

29 35 43 50

53 55 62 68 73 76 77 81 82

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xii

Contents

3.4 3.5

Into Practice: Context, Legal Relevance, Procedural Correctness Into Practice: The Documentary Method of Interpretation and the Normativity of Legal Cognition

part ii

historical ontologies

4 Politics Made into Law: Determinism and Contingency in Moroccan Constitutionalism 4.1 4.2 4.3 4.4 4.5

Long-Nineteenth-Century Constitutionalism: The Period of Reforms Short-Twentieth-Century Constitutionalism: The Period of Independence New Constitutionalism: Limited Pluralism and Accountability Islam and Constitutionalism Conclusion: Constitutionalism and the Positivization of Law

5 The Legal Reification of the Mind: The Development of Forensic Psychiatry in Egyptian Law and Justice 5.1 5.2 5.3 5.4

Positivizing the World Modern Psychiatry Egyptian Cases Conclusion

6 From ‘Urf to Qaˆnuˆn ‘Urfıˆ: The Legal Positivization of Customs 6.1 6.2 6.3 6.4 6.5

Custom and Customary Law: Clearing the Mist around Concepts Islamizing and Positivizing Customs Customary Law in Colonial Morocco From ‘Amal to Mudawwana: The Place of Custom in Moroccan Positive Law Conclusion

part iii

legal praxeologies

86 92 97

99 101 109 115 121 127

132 134 137 141 151 154 155 160 165 167 171 175

7 General and Particular: The Legal Rule and an Islamic Swimsuit in a Secular Context

177

The General and the Particular as Legal Categories

178

7.1

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Contents

7.2

7.3 7.4 7.5

Praxeological Re-specification: Ordinary Reasoning, Legal Reasoning, and Categorization of the General and the Particular Community-Based Particularism and National Community: Much Ado about a Bathing Costume Generality and Particularity as Practical Accomplishments Conclusion

8 Filling Gaps in Legislation: The Use of Fiqh in Contemporary Courts in Morocco, Egypt, and Indonesia 8.1 8.2 8.3 8.4

Institutional and Legal Transformations in Morocco, Egypt, and Indonesia Statutes and Legislative Gaps in Family Law: Marriage Authentication Marriage Authentication: How Do Judges Manage the Reference to Fiqh? Conclusion: The Legal Positivization of Islamic Normativity

9 Playing by the Rules: The Search for Legal Grounds in Homosexuality Cases – Indonesia, Lebanon, Egypt, and Senegal 9.1 9.2 9.3 9.4

Criminal Law and the Repression of Homosexuality Looking for Relevant Rules: Homosexuality at the Bar Facts, Evidence, Rules, Procedures, and Interpretation: Legal Reasoning in Practice How to Do Things with Rules: The Reference to Rules in the Life of the Law

Conclusion: A Praxeological Approach to Positive Law Notes Bibliography Index

xiii

181 186 189 192

194 196 199 204 214

219 221 227 236 249 253 263 277 299

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Acknowledgments

This book has come out of thirty years of research into Islamic and MiddleEastern law, although it hopefully does not correspond to its completion. I am indebted to a multitude of institutions which offered me a shelter1 and persons with whom I debated, exchanged, argued, and, therefore, grew up. Egypt, Syria, and Morocco hosted me for many years. There, I drank the water of the Nile, the Barrada, and the Bouregreg, to adapt an Egyptian proverb, and I learned the meaning of fieldwork, practice, and legal documents. I also nurtured a deep compassion for the people and a great sensitivity to the value of human friendship and intellectual indebtedness. I subscribe to the idea that a book should be written from beginning to end as a book and not as a collection of articles. Although some of the chapters were published separately, they were all conceived originally as parts of a global book endeavor. They were intended to build on and complete each other, if not to be read incrementally. I am also convinced that research, while mainly solitary, can and should be the outcome of a partly collaborative process. Several chapters were written together with younger colleagues who supplied me with their insights and their materials, and I owe them my immense gratitude. While all the (mistaken) ideas presented in this book are mine, these many colleagues and friends greatly helped me to refine and, even more importantly, to empirically ground them. Parts of the Introduction are published in the Oxford Handbook of Law and Anthropology. Chapter 2, to the writing of which Gianluca Parolin contributed, is published in a volume on legal positivization with Brill. Chapter 3, which Ayang Utriza Yakin co-wrote, was published in French as a conclusion chapter to Ethnographies du raisonnement juridique (co-edited with Julie Colemans, LGDJ). The French version of Chapter 7 was published in Trace´s. Revue de sciences humaines. Chapter 8 was published in Islamic Law

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Acknowledgments

xv

and Society and co-written with Adil Bouhya, Monika Lindbekk and Ayang Utriza Yakin.2 An abridged version of Chapter 9, co-written with Ayang Utriza Yakin (in respect of Indonesia), Samer Ghamroun and Youmna Makhlouf (in respect of Lebanon), and Marie`me N’Diaye (in respect of Senegal) with generous reading and comments from Alexis Blouet, was published in Rules in Practice (co-edited with Max Travers and Julie Colemans, Routledge). Chapter 5 benefited from the support of Mina Khalil and Ayang Utriza Yakin,3 and Chapter 6 from that of Le´on Buskens,4 while Chapter 4 draws significantly on Nabil Mouline’s and Jean-Noe¨l Ferrie´’s works.5

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Introduction: Law Properly So Called, from an Islamic Vantage Point

The expression “law properly so called” was coined by the famous Benthamite jurist John Austin to distinguish the concept of positive law from other types of norm. Positive law and codification, as part of nation-state building, are an extraordinary success story. The nineteenth and twentieth centuries saw them spread throughout the world. The concept of positive law developed in many places beyond those in which it first emerged, including countries and societies characterized as Muslim, into which it was transplanted in different ways and for different reasons. In those places it faced other existing normativities, including the sharıˆ ‘a. As a word, “law” is of course not universal. As such, it is used only as an English word or, in other languages, to refer to the legal tradition originating in England: the Common Law. The same holds true for other words, in other languages: “droit” in French, “Recht” in German and Dutch, “diritto” in Italian, “derecho” in Spanish, “qaˆnuˆn” in Arabic, Sindhi, Turkish, and Pashtu, “falu¨” in Chinese, “sheria” in Swahili, “hukum” in Indonesian. Even as words, these terms have long and complicated histories: qaˆnuˆn, for instance, comes from the Greek kanon, from where it passed into Arabic, then eventually into Turkish and different Asian and South Asian languages. Remarkably enough, these many languages do not share one common meaning, although there is something like a family resemblance. Words travel and, during the course of their journey, they are semantically transformed, that is, they come to mean something different from their original meaning. What is true for words is even more so for concepts. Concepts are words expressing an abstract idea of something. Not only can the same word express many concepts but the same concept can be expressed by many words. This holds true for the concept of law, which is expressed by all the words referred to above, although not exclusively. This means that, under specific circumstances, within the specific sites where they are used, they express the same 1 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.001

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Introduction: Law Properly So Called, from an Islamic Vantage Point

abstract idea. This statement is indisputable when the sites, especially institutional, in which these words are used are, relatively speaking, the same: what is called “al-qaˆnuˆn al-madanıˆ ” in the modern Egyptian nation-state legal system is equivalent to what is called “le droit civil” in the Kingdom of Belgium. This certainty is reinforced by the translation process, which makes an expression in one specific language the equivalent of another expression in another language. The development of technical lexicons is precisely aimed at creating such functional equivalences. Does this mean that the concept of law can be indiscriminately extended to other times and places in which the concept as understood today in most countries and societies – as expressing a system of norms centered on a nationstate, based on a constitution, formulated through codified legislation and judicial precedents, administered by lawmakers for its inception and judges for its implementation – simply did not exist? Our contention is that such an extension is at best useless, at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of what is today ordinarily understood by both lay and professional people when practicing “the” law. Remarkably enough, the same people do not confuse the many normative systems surrounding them and do not equate the legal order with, for example, moral or religious normativities. This does not mean that these many normativities do not influence each other. On the contrary, they actively do so, but in ways that enable them to keep their specific characteristics. Our aim is to develop a sociohistorical jurisprudence of “law properly so called,” which involves a threefold analysis: conceptual, historical, and praxeological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis requires the exposition of the grammar through which concepts acquire their meaning and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and historian Reinhart Koselleck, historical analysis focuses on the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxeological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting an endogenous/indigenous perspective toward social life and its production. THE CONCEPT OF LAW IS NOT UNIVERSAL

The best way to assess the universal character of the concept of law is to explore the meaning ascribed to words sharing a family resemblance (Wittgenstein,

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The Concept of Law Is Not Universal

3

1963) with its contemporary conception, from its penumbral fringes (Hart, 1961), that is, from situations peripheral to the core of how it is understood. We can take the example of Montesquieu, whose Spirit of the Laws is unanimously considered a pioneering work of “modern law.” First, it should be noted that Montesquieu does not speak of law (le droit) but of laws (les lois). Considering his definition of the word “law,” this is not a mere lexical detail: Laws, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have their laws: the Deity His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws. (Montesquieu, 1914: Book 1, chapter 1)

Onto these immutable natural laws are grafted positive laws, which are the laws that intelligent beings give themselves. However, these laws are inferred by natural relationships of justice: “We must therefore acknowledge relations of justice antecedent to the positive law by which they are established” (Montesquieu, 1914: Book 1, chapter 1). Laws, which proceed from natural justice, are thus meant to correct mankind’s natural propensity to ignorance, error, and passion: But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. . . . Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have therefore by political and civil laws confined him to his duty. (Montesquieu, 1914: Book 1, chapter 1)

In sum, human law in general is “human reason, inasmuch as it governs all the inhabitants of the earth,” while each nation’s political and civil laws are “the particular cases to which human reason is applied”: They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government . . . They should be in relation to the climate of each country, . . . to the principal occupation of the natives, . . . to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established. . . . (Montesquieu, Book 1, chapter 3)

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Introduction: Law Properly So Called, from an Islamic Vantage Point

The “spirit of the laws” is, according to Montesquieu, the principle that relates laws to their natural, political, and social environment. As this environment is plural, laws are plural too. This is the transposition of the maxim ubi societas ibi ius; and of its religious equivalent cuius regio eius religio. However, these maxims are not Roman, as often argued, but modern; they already draw on modern conceptions of law, morality, and religion. When using the term “law” in the singular (droit), Montesquieu refers to generic legal domains: the law of nations, political law, civil law. In other words, law in the sense of droit (or Recht in German) already exists in Montesquieu’s vocabulary, but not as a reference to a state-administered legal system (Raz, 1980). The concept of law, as it is understood and analyzed by contemporary jurisprudence (e.g. Austin, 1954; Kelsen, 1945; Hart, 1961; Raz, 1980; Schauer, 1991), was still to be invented. Our second illustration comes from early-nineteenth-century Egypt. Rifa‘a al-Tahtawi is a famous intellectual who was sent with other Muslim scholars to accompany students to France. There, he learned French. Once back in Egypt, he launched a movement to translate European texts into Arabic and was appointed director of the School of Languages. In his book, translated into English under the title An Imam in Paris, he related his memories of this educational expedition. Among his comments and thoughts, many sections are devoted to the French legal system, starting with the constitutional framework. “What appears with great clarity is the author’s difficulty in describing a reality for which he does not dispose of an appropriate vocabulary; besides his sometimes approximate understanding” (Parolin, 2015: 6). As Gianluca Parolin nicely adds: “This text provides us with a veritable Rosetta stone of legal semiotics in Egypt” (Parolin, 2015: 6). Tahtawi constitutes the very first instance – or at least available example – of the deep transformation undergone by Islamic normativity between the beginning of the nineteenth century and the second half of the twentieth century, when the lexicon became fixed in its current form. Through this process, the fiqh, that is, the Islamic normative tradition, became more and more understood through the framework of positivist legal cognition. Moreover, it tended to shrink into isolated rules, disconnected from their original context of production, and severed from the flexible hermeneutic that accompanied it. Again, according to Parolin, “the prestigious language of the fiqh was eventually absorbed by positive law, which determines the referential semiotics” (Parolin, 2015: 3–4). The choice of words used to translate French legal terminology was particularly significant, as it borrowed terms originating in the fiqh to partly or completely express new concepts. For instance, while the translation of the

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Captain Cook and the Natives’ Categories

5

idea of subjective rights (les droits) was not a major problem for Tahtawi, Arabic having a good corresponding term: haqq (pl. huquˆq), the idea of objective law (le droit) proved thornier. He opted – with some ambiguity – for that most Islamic word sharıˆ ‘a to designate French law in general. Accordingly, he also used a derivative of sharıˆ ‘a, tashrıˆ ‘, to express the notion of legislation. While the former solution did not succeed in the long run, Egyptian law being nowadays designated under the expression al-qaˆnuˆn almisrıˆ – with the choice of the more secular though less objective qaˆnuˆn to render the idea of the law of a nation – the latter took root and today means the laws passed by the legislative power, without the slightest religious connotation, to the point that it is necessary to add the predicate “Islamic” to speak of a piece of Islamic legislation (al-tashrıˆ ‘ al-islaˆmıˆ). CAPTAIN COOK AND THE NATIVES’ CATEGORIES: SEEKING THE INDIGENOUS/ENDOGENOUS

The two examples presented in the previous section are taken from the fringes of the standard concept of law. They constitute metaphorical extensions of a paradigmatic instance: the legal system of modern states understood as the union of duty-imposing and power-conferring rules (Hart, 1961). As a conceptual question, the definition of law is of course “stipulative.” There is no empirically valid definition of law, but there are concepts and definitions which are more heuristic than others. Moreover, it is possible to empirically observe and describe what people say and do when orienting to normative categories, shifting from one lexicon and grammar to another, and using old vocabulary to designate new concepts. In that respect, exploring the concept of law from its fringes makes it easier to see what makes it so specific, contingent, and context related. Claiming the existence of a universal concept of law may seem virtuous, as it supports both universalist – natural law, human rights, international law – and atomist – legal pluralism, law as culture, living law – discourses. It would break us free from this “prison of the mind” constituted by “positive law”; it would vindicate the individual and its irreducible freedom; it would open the door to the Other’s way of thinking. However, our contention is that, on the contrary, this way of thinking produces effects opposite to those sought by its proponents. Law has no intrinsic virtue and its rules can be immoral without losing their legal character (pace Radbruch, 2015); law is neither just an allencompassing disciplinary order (Foucault, 1975) nor a mere superstructure hiding power relationships (Bourdieu, 1986). In that respect, the apology of legal pluralism, understood as the coexistence of an indeterminate number of

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Introduction: Law Properly So Called, from an Islamic Vantage Point

equivalent normative orders has the appearance of a self-refuting prophecy, as it logically entails an atomistic pluralism negating the very principle of life in society, that is, the prevalence of the rule of all over the interest of everyone. It also means a kind of relativism confining indigenous people within a nativism that conceives of autochthonous law as being intrinsically virtuous. Actually, thinking of autochthonous norms in terms of law is equivalent to denying autochthonous societies the capacity to think for themselves, for example, outside the cognitive grid of law. The classical dispute between Obeyeskere and Sahlins (Hacking, 1999) provides us with a good example of the inverted ethnocentrism menacing the proponents of a universal rationality. The controversy concerns the historical figure of Captain Cook and how autochthonous people represented him and incorporated his legacy. Gananath Obeyeskere (1992) contended that Captain Cook’s deification by Hawaiian people followed his death and was an answer to local contingencies, while Marshall Sahlins (1995) considered that, on the contrary, Hawaiians had deified him immediately upon his arrival. According to the former, the idea that indigenous people had taken Cook as a god was the academic continuation of a “white myth” regarding Hawaiians, which ignores the good sense of the locals who deified Cook only retrospectively and for intelligible, rational, pragmatic, and political reasons. In other words, Sahlins is accused of adopting an imperialist posture. According to the latter, however, it is much more interesting and fruitful to observe how social structures and, to an even greater extent, conceptual frameworks and practices change over time, following the encounter with, for example, a foreign people. This means, with respect to the story of Captain Cook, examining how a historical event, as designated by historians, was apprehended by the locals in terms of their established beliefs. It is therefore, according to Sahlins, Obeyesekere’s attitude that is imperialist, since it denies the autochthonous people “their own voice” and imposes a cognitive mechanism upon them inspired by rational choice theories. This detour through the story of Captain Cook’s deification teaches us that, where the law is concerned, it does not necessarily do indigenous societies justice to impute to them categories specific to contemporary Western societies. One cannot speak of the “primitive mentality” or the “primitive soul,” as Le´vy-Bruhl (2010) did, as if there was a specific way of thinking of societies not tainted by the West; one can only address ways of thinking about specific questions. Nor can one treat these ways of thinking as if they were amenable only to the canons of Western rationality; one must render them their proper operational modes, which, on the one hand, have their specificities and are laid against a situated and specific background, but, on the other hand, also evolve on contact with others, transform, and sometimes radically change.

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Law Properly So Called, Metaphorical Law, Law by Analogy

7

This holds true with respect to the concepts of law, religion, and morality. These concepts are specific to contemporary times. They can be usefully mobilized to analyze the normativities of present-day societies. Extending their use to premodern societies or all kinds of normativities is at best useless and at worst misleading, as it deprives these societies and normativities of their own voices and deprives us of our capacity to understand them in their own terms. In other words, ethnocentrism lies in the use of the concept of law to describe any normative system or set of rules, that is, in the refusal to give autochthonous peoples their own voice and to examine their normative systems in their own, nonlegal, terms. LAW PROPERLY SO CALLED, METAPHORICAL LAW, AND LAW BY ANALOGY

Our contention is that the concepts of law, religion, and morality should be understood from the vantage point of positivism, from which they originate, and not as universal categories which could be applied to any type of normativity. Considered as ordinary categories, they are particularly apt to describe the working of modern legal systems, while proving inapt when addressing other contexts and normative settings. The distinction between law and morality may be considered one of the basic principles on which modern legal theory was built. For example, John Austin (1954 [1832]) argued that positive law is distinguished from other normative systems in that it is founded on a command issued by a factually legitimate authority that is endowed with the power to sanction. Austin equally made a distinction between “law properly so called,” metaphorical laws (for example, the laws of nature), and laws by analogy (laws that proceed from an opinion generally shared by a human group). Under “laws properly so called,” however, one can find “the laws established by God for His human creatures” as well as laws made by men for other men. In both cases, there is a conjunction of the two criteria for the definition of a law: the existence of a command and a sanction. What distinguishes the different categories of “laws properly so called” is the third criterion: effective authority, which can only be satisfied through the intervention of a human agent. In other words, according to Austin, positive law consists of intentionality coupled with the effective force of execution (Jackson, 1996). Although he challenged Austin’s theory of command, Herbert Hart (1961) sought to maintain a moderate positivist understanding of law. He therefore defined legal positivism as an expression of the thesis according to which it is

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Introduction: Law Properly So Called, from an Islamic Vantage Point

not necessarily true that rules of law reflect or satisfy certain moral requirements, although in reality they have often done so (Hart, 1961: 224). What is at stake, therefore, is the need to demonstrate that no necessary relationship existed between law and morality. Legal and moral obligations might indeed share certain characteristics, but they remain distinctive forms of social control (Hart, 1961: 232) due to the importance of obligation (no moral rule can be considered unimportant), the inaccessibility of moral rules to deliberate changes, the necessarily intentional character of moral errors, and the form of moral pressure that invites respect for the rules due to their importance and shared nature (Hart, 1961: 203–21). According to Hart, in order to be legally valid, a rule of law does not necessarily have to conform to moral standards, but it does have to conform to the formal criteria of a system of primary rules (i.e. duty-imposing rules) and secondary rules (i.e. power-conferring rules), even though some of these rules violate the specific morals of a society or impinge upon what we can consider authentic morals (Hart, 1961: 250). This “positivization” of the conception of the law can be considered a global phenomenon through which the technique of positive law was acculturated to settings peripheral to the original core. This book is about how this claim can be documented in a specific context: historical and actual places dubbed Islamic. Egyptian legal doctrine asserts, for instance, that there is a distinction between law and morality. For example, Hassan Gemei (1997: 6) aligns himself with Austin’s theory of command with regard to the definition of law. Gemei sees law as a set of rules governing the behavior of individuals in society, which people must obey, lest they expose themselves to sanctions imposed by a competent authority. According to Gemei, legal rules are not the only ones aiming to regulate and stabilize relations among members of any given society. They act in concert with other rules, like those of courtesy, custom, tradition, and religion. As for moral rules, they are principles and teachings that the majority of a society’s members consider as constraining behavioral rules that aim to achieve elevated ideals (Gemei, 1997: 15). Moral rules share a number of characteristics with legal rules: they change according to time and place; they tend toward organizing society; they have a constraining nature associated with sanctions. However, they differ from legal rules in three domains. First, with regard to their field of application: “Whereas morality includes personal and social manners, law addresses the relationship between the person and the others from the perspective of the ostensible aspect of behavior without taking into consideration intentions that are not associated with physical action” (Gemei, 1997: 16). They also differ with regard to the type of sanction imposed: “Whereas the penalty for violating moral rules is a mere moral penalty ranging from remorse to denunciation and disdain, the penalty for violating legal rules is

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Conceptual Analysis

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physical incarceration, imprisonment, hard labor, etc.” (Gemei, 1997: 17). They also differ in respect to their objectives: according to Gemei, while moral rules seek to attain perfection in man, legal rules seek to achieve stability and order within society (Gemei, 1997: 17). Finally, they appear in different forms: legal rules, Gemei asserts, generally appear in a clear and specific form, while moral rules are not so clear, because they are linked to internal feelings, which may vary from one person to another (Gemei, 1997: 17). As to religious rules, they have a close relation to legal rules, but their field of action is far wider and violating them is punished in the afterlife (Gemei, 1997: 18). Gemei insists that there is no difference between religious and legal rules and that the latter can “be recognized from the perspective of Islamic Shari’ah” (Gemei, 1997: 18), in the sense that Islam is a total faith that encompasses law. This means that the field of application of sharıˆ‘a is wider than that of law: Islamic sharıˆ‘a, he notes, is the source of legislation from which legal rules must be derived in Islamic states (Gemei, 1997: 27); “Islamic Shari’ah was ordained as a divine law to govern the conduct of the Islamic society, formulate the thought of the Moslems, and regulate the human relations. Revealed by Allah, Shari’ah guides the society to the highest ideals and seeks to achieve wisdom for which God has created man on earth” (Gemei, 1997: 28). We do not contend that this modern distinction between law, religion, and morality should be taken as a universal truth. On the contrary, our contention is that this type of discourse regarding the relationships among law, religion, and morality is totally contingent. It is the direct heir of the process of legal positivization and of the building of law as an autonomous order. Studying the anthropology of law today therefore means studying positive law as a concept that has its own historical ontology and practical translation. CONCEPTUAL ANALYSIS

“We should probably acknowledge the arbitrary element in language more than we do; for that would encourage us to invent new sounds for our new names, instead of taking an old sound and thus creating a new ambiguity” (Robinson, 1969: 138). This sounds very much like Wittgenstein’s prudential remark regarding the necessity of clearing the mist surrounding our conceptual usages. Concepts are abstractions of features characterizing something that can be expressed with different words and in different languages. Of course, what seems relatively easy when that which is referred to is a material object becomes more problematic when this object of reference is by definition a social construct. If one considers that the word “law” is

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Introduction: Law Properly So Called, from an Islamic Vantage Point

a concept, the question is thus to know what features are common to the many words referring to this abstraction. The question “What is law?” per se is irrelevant. There are only words and expressions sharing family resemblances across languages, cultures, institutions, activities, and contexts. As a consequence, there is no universal definition of law that should be sought independent of its context of expression; one can only manage to describe the surface and deep grammars of the “language games” (Wittgenstein, 1963) surrounding words closely or loosely associated with what we mean by “law” in English (or “droit” in French, or “qaˆnuˆn” in Arabic, etc.). However, when describing the grammar of such language games, we proceed with a paradigm from which to extend the analysis beyond its core of certainty. Our contention is that, although law is not an empirical but a conceptual reality, its core of certainty is contingent and not universal. The core of certainty of law is made of the empirical object of which positivist legal theories were the description. As nicely put by Simon Roberts (1998: 105): “Overall, my feeling is that it is inevitably problematic to attempt to fix a conception of law going beyond the robust self-definitions of state law.” In other words, the concept of law corresponds to what legal theorists designated as positive law, as distinct from natural or religious law, at the time of what one might call the “positivist turn.” Other instances can share some features with this core of certainty – this is what Hart calls penumbral cases, that is, instances having some resemblance with the paradigm – but this is only a resemblance and its relationship with the core is metaphorical. This is not to say that such theories are correct or complete, but that, despite their possible flaws, they constitute generalizations and abstractions from one specific and contingent object working as their paradigm. Pace Montesquieu, law in the natural sciences does not belong to the same set as law in . . . law. One must therefore identify the language games within which the word is used in order to discern its criteria of intelligibility and the concept of which it is an expression. However, every language set always relates to a core of certainty, in respect of which it is contextual and perspectival: It is “relative to the purposes specific to those people and sensitive to circumstances from which it cannot be abstracted (without detaching it from what constitutes its identity)” (Hutchinson et al., 2008: 75–9). Accordingly, it is clear that not everything normative can be called legal, as it would run against the meaning constitutive of the core object of the concept of law – and this holds true if there are many concepts. Naming all forms of ordering “law” creates an analytical mist. Using a word which has some commonsense meaning to perform an analytical task that runs contrary to this meaning generates an ambiguity, especially when this alleged concept either does not

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The Historical Ontology of a Contingent Concept

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carry anything which makes it distinct from other less connoted words (like norm) or surreptitiously carries the distinctive characters of what it is supposed to be contrary to. For instance, claiming that dharma is law (Geertz, 1983; Davis, 2012) presupposes the existence of a concept of law including all cultural forms of normativity. On the contrary, taking the criterion of the union of primary and secondary rules, Hart (1961) excludes from the conceptual spectrum a series of configurations called, for example, infra-law, primitive law, proto-law, social, ethical, deontological norms. It would exclude dharma because of the very composite nature of primary rules and the absence of secondary ones. Both claims are conceptual. The grammatical inquiry into the many uses of the word dharma can tell us whether there is any heuristic value in speaking of dharma in terms of law. Heuristic concepts share two qualities: the capacity to precisely identify what they are the concept of; and their affordance to grammatical inquiry. It is conspicuously difficult to identify the object of the overinclusive concept of law, not to speak of conducting its description. With Hart’s positivist theory, and despite its many flaws and approximations, we have a clear object that it is possible to describe. An inquiry into normative concepts is thus both grammatical and context dependent. The case of “Islamic law” is illuminating in that respect since it perfectly illustrates how a normative corpus was characterized in terms of “law” at a specific historical time. It is a truism to say that “Islamic law” is a concept belonging to a taxonomy. It is more striking and sometimes irritating in the current context to acknowledge that this concept is the product of a specific scholarly enterprise that aimed to better understand, control, and reframe the phenomenon of normativity in Muslim societies. Normativity existed prior to the attention that Orientalist sciences gave it; Islamic law did not (Buskens and Dupret, 2015). Finally, there remains the question of what happens when a practice is subsumed under the label of positive law. The question is contingent, but at least one can already claim that it makes such practice amenable to legalistic manipulation and judicial adjudication (what we call social engineering), and thus technical consequentiality. THE HISTORICAL ONTOLOGY OF A CONTINGENT CONCEPT

Law is not an empirical reality that must be discovered; it is a concept whose aim was, at a specific point in history, to express the idea of a contingent normative order. In that respect, its study must be both historical and praxeological. In other words, it cannot be dissociated from the context of its uses and the practices of its accomplishment.

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Introduction: Law Properly So Called, from an Islamic Vantage Point

The coming into being of concepts is unreservedly historical. The description of both the concept itself and its history is called “historical ontology.” Concepts are historical objects that do not exist until they are created. For instance, in the past, before the concept of homosexuality was formed, there could be sexual acts between two people of the same sex, but there could not be a specific kind of person categorically called a “homosexual” (Davidson, 2001; Hacking, 2002: 82). Historically and etymologically speaking, most of the many words used to express the contemporary concept of law have existed for a long time. However, as we observed in the first section, they were not used with their current meanings. To take but one example, between the meaning of the word constitutio in Medieval canon law and the current notion of national constitution, there is what Michel Foucault (1994) called, when writing about madness, a “great divide,” that is, a radical and often incommensurable discursive gap. Many things do not exist as such without human characterization, which brings them into being at specific moments. They constitute not real entities awaiting scientific discovery but entities which, once the distinction has been made, constitute new realities which come into being (Hacking, 2002: 103). One can speak of their “making up” (Hacking, 2002: 104). This is an issue of “dynamic nominalism” in which “our spheres of possibility . . . are to some extent made up by our naming and what that entails” (Hacking, 2002: 113). There is no global narrative since every category has its own story, but there is nevertheless a certain scheme: some labeling from above creates realities, which certain people make their own; autonomous behavior from below creates realities that experts must face (Hacking, 2002: 111). Discourse on “modern law,” “positive law,” or simply “law” was made possible through the emergence of a conceptual space articulated by a style of reasoning (Davidson, 2001: xii). This is not the place to explore the complex history of the concept and of the discourse in which it is embedded. It is enough to say that the concept evolved, spread, and transformed itself. It progressively referred to something like a homogenous, autonomous, autopoietic normative system (Teubner, 1993). In this process, it was associated with values that were themselves changing, but it always remained attached to an idea of the state, the rule of law, and the control of the population. Describing the ontological history of concepts allows us to understand how we think and why we seem compelled to think in certain ways (Hacking, 2002: 71). It can be done a` la Foucault with snapshots taken on either side of the Great Divide, during which one tradition transformed into another – what Thomas Kuhn (1996) called a “paradigmatic change,” or it can be done in a synchronic way, with snapshots taken from two concurring repertoires addressing a seemingly

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The Historical Ontology of a Contingent Concept

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identical concept. In both cases, the discourse must be analyzed within the circumstances and conditions under which the sentences that make it have “archeologically” acquired their truth value and could therefore be uttered (Hacking, 2002: 79). Ontological analysis can be conducted hypothetically. Through his fable about king Rex, Hart suggests a “genetic-analytic” (Hacker, 1977: 11) approach to the birth of law understood as a legal system. Although conceptual and not anthropological, this hypothetical story is anthropologically illuminating: “We are asked to envisage a purely notional situation in order to perceive what crucial features characterize our own complex situation” (Hacker, 1977: 11). The fable goes as follows (Hart, 1961): There is a population living in a territory that has been governed for years by an absolute monarch, Rex. He controls his people through general orders coupled with threats to do or to abstain. His people generally obey him, based on their personal relationship with Rex. After a happy reign, Rex dies, leaving an heir, who starts giving general orders. The simple fact that his father was generally obeyed does not guarantee that Rex II will be habitually obeyed. If orders are laws only when habitually followed, one must wait a certain time before knowing whether Rex II is legislating. In other words, there is a legal discontinuity between the reigns of Rex I and Rex II. However, a prelegal system was born if one observes a continuity of the power to legislate through rules that makes the transition from one lawmaker to another. Such is the case if Rex II has a title to succeed his father. This title gives him the right to legislate after his father’s death and his first orders can be considered as laws, notwithstanding whether they are obeyed in the end. It is not the habit of obedience that transforms orders into laws but the issuance of these orders on the basis of secondary rules of recognition of Rex II’s orders as valid, that is, as conforming to the rules of the same system that gives him the right to succeed and thus to legislate. The fable does not end here. Other secondary rules must be added in order to produce a full-fledged legal system. Hart calls them rules of adjudication and rules of change. Rules of recognition constitute remedies to the problem of uncertainty affecting the authority entitled to issue primary rules. Rules of change answer the problem created by the static character of primary rules whose issuance is not governed by superior norms. Rules of adjudication are only functional responses to the inefficiency of social pressure. Together, primary rules creating obligations and secondary rules (of recognition, change, and adjudication) organizing the power to issue primary rules are the elements necessary to the constitution of a fully fledged legal system. In this sense, Hart’s conception can be considered genetic. It does not mean, however, that

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Introduction: Law Properly So Called, from an Islamic Vantage Point

it is normative, in the sense that it does not imply that a legal system is, per se, a moral good (Gardner, 2013). This conception of law as the union of primary and secondary rules is contingent upon the specific legal systems that scholars like Hart were aiming to describe. It was widely applauded, discussed, and criticized, for its formal flaws as well as for its ethnocentric or evolutionary stance. However, despite its inconsistencies, it can be safely taken as a valuable attempt at describing a legal historical paradigm. In that sense, Hart’s concept of law is what is meant today by the word “law.” It corresponds to the contemporary state of conceptualization obtained by the word if we are to produce its historical ontology. Rex’s story can be told in a purely anthropological manner, as demonstrated by Testart (2012) in his analysis of the evolution of societies in prehistorical times. It can also be told in a historical way. This is to some extent what JeanLouis Halpe´rin (2014) attempted in his collection on legal revolutions. Making a distinction between ordinary changes, which take place within a system, and revolutionary changes, which imply the substitution of a new order for an old, Halpe´rin observes “the possibility of ‘fits and starts’ in legal history, contrary to the classical evolutionist schemes that insist on elements of continuity” (p. xi). Going further, he states that these breaks are “complete upheavals of the structure of legal systems based on secondary rules” (p. xi). They can take two forms: either the passage from a prelegal system, made of primary rules only, to a full-fledged legal order, made of the combination of both primary and secondary rules; or the substitution of a new system for an old. Addressing the specific issue of codification, Halpe´rin stresses the revolutionary character of legal systematization. This can be contrasted with Roman law, which lacked the static and dynamic hierarchy of norms that Kelsen makes characteristic of both state and state law (Kelsen, 1960, quoted in Troper, 1994, p. 194).1 This legal break to which Europe was subject at the turn of the nineteenth century was the outcome of a dynamic of “legal systematization,” which used, inter alia, the technique of codification frequently associated from the end of the eighteenth century with an idea of planning oriented toward the construction of a new legal order (p. 35), an idea rather different from earlier compilations. Not surprisingly, Max Weber saw in the great codes of the nineteenth century, and especially in the French Civil Code of 1804, the paradigmatic example of legal rationalization (Weber 1978). Legal positivism, nation-state building, and codification were tremendously successful. The nineteenth and twentieth centuries witnessed the global transplantation (Watson, 1993) of the Napoleonic code template. One can identify many reasons for this phenomenon: the unifying capacities of codes,

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Praxeological Ethnography

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their flexibility and adaptability, their symbolic force as “talismans of modernity” (Halpe´rin, 2014: 49). Both codes and systematized case-law were major tools supporting national projects. In Muslim societies, the conception of local norms largely followed the global movement. In this process, it fell to scholars to decide whether a norm was qualified to be elevated to the status of “law.” When ratified at a political level, these scholarly opinions became the new law of colonial and even indigenous administrators. There are many reasons for this conceptually ethnocentric legal positivism, for example, the fact that colonial administrators were often trained in law and that a majority of scholars combined oriental and legal studies. This orientalist, positivist conception was perpetuated and remains; it was reproduced, from generation to generation, in the West as well as in the East. It became natural to speak of Islamic normativity in terms of law. While using the expression “invention of Islamic law” is often perceived as an attack against Islam, suggesting that this law is man-made and not divinely inspired, the question is not the divine nature of “Islamic law” but that speaking of Islamic normativity in terms of law is, first, contingent on a specific time and place and, second, deeply influential on our understanding of that normativity. PRAXEOLOGICAL ETHNOGRAPHY: THE CONCEPT OF LAW IN CONTEXT AND IN ACTION

We consider our task to be describing the actual uses of the concept of law. Drawing on its historical ontology, we have identified the period of its birth, some of its contingent fundamental elements, and the ways in which it became autonomous from other normative repertoires such as religion and morality. This has paved the way for the contemporary inquiry into the ways in which professionals and laypeople refer to law in the ordinary accomplishment of their lives and tasks. This is what we call “legal ethnomethods,” which are the ordinary methods used in order to “be legal” (Garfinkel 1974, 16) in the performance of “law properly so called” (Austin, 1954 [1832]). These ethnomethods concern the practice of the law understood not as an equivalent to any kind of normativity but as this very specific thing which appeared together with the emergence of the nation-state, which was made the object of the science of law, and which positivist theories attempted to describe. Let us use examples extracted from studies into Egyptian lawmaking and application in order to sketch the outline of such a praxeological inquiry into legal ethnomethods and their relationships with religion and morality (Dupret, 2015). First, it must be noted that law is practiced with both technical and everyday languages. Thus, when, during a divorce trial in Egypt, the

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Introduction: Law Properly So Called, from an Islamic Vantage Point

reconciliation committee required by the statutory divorce law states that the wife had faced “humiliation, slander, insult and a blow to her honor from the husband,” the praxeological attitude involves analyzing these statements in their ordinary sense, while noting that they are reformulated by a specific institution (the reconciliation committee) within the context of a judicial proceeding (reconciliation in a divorce trial) and for practical purposes (coming to a decision). Second, one must emphasize the importance of context, and institutional context in particular. Context means the constraints toward which people actually orient themselves in the course of their activities (Dupret and Ferrie´, 2008). In describing what parliamentarians do, for example, within the Egyptian People’s Assembly, we must show how a declaration such as “In its current format the proposed law is contrary to the sharıˆ ‘a and must be modified in order to comply with jurists’ unanimous opinion” manifests the desire of the MP concerned not only to produce an utterance that has a meaning understandable by his colleagues (the noncompliance of the proposed law with “the sharıˆ‘a”), but also and especially to act as an MP committed to the adequate accomplishment of his work (voting for a proposed law that complies with the Constitution). Third, the grammar of interactions unfolds according to the various contexts in which interactions are embedded. The constraints exerted by such contexts are to be described not as a static element of interaction but as a reflexive and fluctuating framework that actors permanently reassess and in relation to which they make constant realignments. When the Speaker of the People’s Assembly declares that “the modification proposed by the government conforms to prevailing Maliki doctrine in the Kingdom of Morocco as well as in several other Arab countries and is in line with the suggestions of MPs,” he is manifesting and updating the institutional context within which he operates. In this sense, his intervention is contextualizing (it makes the context of this affirmation available) and contextualized (it situates the intervention retrospectively – what is done in other countries and what the MPs have suggested – and prospectively – it places this intervention in the extended perspective of the parliament’s passing of a law). Fourth, legal procedures belong to the constraints exerted by the context. The legal sequence follows certain stages which, although formalized, do nevertheless respond to a series of empirically observable accomplishments which are also explicitly produced by the participants. The production of a procedurally correct law is one of the priorities toward which practitioners tend. These procedural constraints correspond not to a set of abstract rules drawn from an external, ahistorical legal system floating in a vacuum but to the

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Praxeological Ethnography

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routine and bureaucratic dimension of the activities of those engaged in legal practice. When the reconciliation committee writes that “the Honorable Court has designated us to arbitrate in case number [x] of the year 2000,” it is proclaiming the correctness of its action in addressing judicial bodies, which will subsequently consider its report, more than it is describing the procedural rule that it followed. Fifth, the participants in the judicial activity also orient themselves to what we might call sets of relevancies. The idea of relevance refers to the operation that relates a practice and the categories within which it must be embedded in order for it to take on its full meaning, claim its validity, and produce its effects. Relevancies take on a very different aspect according to the activity within which people are engaged. In the Egyptian parliamentary context, we can discern, for example, national, constitutional, and Islamic relevancies, which in some way constitute what Goffman (1981) calls the “footing” that those involved will adopt to support their turn of talk, while it is at the same time important for them to recognize the democratic relevance of the principle of parliamentary order, as the following extract demonstrates. It combines reference to an Islamic relevance (the discussion of the project before an Islamic body), a legal relevance (the procedure of adopting the law), and a democratic relevance (respecting the principle of majority voting): “The discussion of this proposed law at the Academy of Islamic Research lasted three months to allow members to express their opinions; we voted at the majority of the voices and that is quite normal; it is the opinion of the majority and this opinion engages all its members.” In a judicial context, relevance has more to do with judicial qualification (i.e. matching selected facts with the text of the law), as in the following extract where the reconciliation committee observes “the impossibility of coexistence and marital life between them,” characterizing in this respect relations between the spouses according to the available legal category and opening the way to the subsequent inferences of the judge. Sixth, legal activities are oriented to norms of reference, which are instructions (Livingston, 1995, 2008) as to how properly to conduct specific language games. Such language games refer in complex ways to demonstrably textual sources or supposedly shared moral values. Thus an individual within the Parliament can carry out an action which is both instructed by a procedural rule and inspired by a religious relevance: The text submitted to us complies with the provisions of the Islamic sharıˆ ‘a. [Nevertheless,] further to the request of MPs, the government proposes a modification to Article 20 so as to give the tribunal the right to call before

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Introduction: Law Properly So Called, from an Islamic Vantage Point it. . . two arbiters in order to attempt to reconcile the spouses in case of khul‘ [viz. divorce at the wife’s initiative]. . ..

In the judicial situation, the instructed nature of the action is demonstrated by an orientation to procedural correctness and legal relevance, while the possibility for it to be inspired can only appear in a superfluous manner (like the notation which is not legally required “in the name of God the Clement and Merciful” at the top of the written ruling) or when judicial standards such as public order or good morals are referred to. THE CORE CONCEPT OF POSITIVE LAW: AT THE HEART OF LEGAL GLOBALIZATION

This book addresses the issue of how positive law became the core concept of law. It does this from the vantage point of societies in which Islam has for a long time been, or has recently become, a major public phenomenon. We speak of Islamicate societies, that is, societies in which Islam plays an important though diffuse role (Salaymeh, 2016). The emergence of legal positivism can be placed at a specific time and place, namely Western Europe at the turn of the nineteenth century. It proceeded from historical, economic, social, and cultural factors whose logic was both domestic and international, and closely articulated to the Westphalian conception of the nation-state, internally sovereign and externally partner of the “concert of nations.” The locally conceived concept spread, globalized, and transformed into something universal, to the point that today it is not possible to speak of law without having in mind this notion of positive law, all over the planet; to the point that the word “law” is mainly used metaphorically to designate norms and normative systems that fail to enter into the category of positive law. While positive law globalized geographically, it also became conceptually universal. This means that what corresponded to its central meaning extended to situations that stood at its periphery. This is what Hart designated as the “core and penumbra” issue. Penumbral cases are cases that do not properly fall into the core category but nevertheless share strong family resemblances with it. International law is an instance of such penumbral cases. One could add the lex mercatoria and what is called today transnational law, that is, the evergrowing part of the law that is no longer regulated by states. Legal theory debates the question as to whether these laws fall within the concept of “law.” In some respects, they do; in others, they do not. However, what is important for our current purposes is the fact that they all derive their meaning from the core concept. For some, the question might thus be to know how far these

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The Core Concept of Positive Law

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derivatives can go without losing their legal quality, but it is certainly not about claiming that they proceed from normative traditions independent of positive law. However, it is not the purpose of this book to establish the criteria by which some normative order can achieve the status of law. This question is at the limit of absurdity: it is not the task of social scientists to give words a definition standing above or correcting the people’s characterizations of what law is or is not (and certainly not of what legal practitioners consider it to be). The purpose of this book is to explore what is, sufficiently but not necessarily, constitutive of the law to which people orient themselves in modern contexts. In other words, instead of seeing law everywhere, it aims to explore the core concept of law, based on the assumption that such exploration will better enable us to understand, first, what is meant in penumbral cases, that is, in instances that are derivatives of the core, and, second, what is not meant in the many cases that are ironically designated as legal by some scholars but rarely referred to as such by the vast majority of the people (and certainly not law practitioners). In this global process, the gap between positive law and natural law widened. To put it in a nutshell, natural law takes legal norms as already existing (the lawyers’ task being to discover them), while positive law considers the law as an act of social engineering (the legislature’s task being to formulate laws and the judiciary’s to implement them). Although these categories and their opposition were already ancient and clearly conceptualized in Aquinas’s work, it was legal positivism in the late eighteenth/early nineteenth century that claimed that law and morality are substantially separated from each other. This issue was strongly debated and fiercely contested, and it should in many respects be deeply qualified. The fact remains today that law, as commonly understood and widely practiced, is considered a prospective tool for social governance rather than a set of retrospectively discovered norms. In that sense, legal positivism won the battle, although not the hearts. This does not mean that the positivist theory is better than the naturalist one, but only that positive law became the overwhelming concept outside of whose framework it is not possible to make a proper representation of what law is. However, it is not because law and morality were conceptually separated that they do not influence each other; quite the opposite. In fact, morality completely pervades legal practice and it is the task of sociolegal scholars to demonstrate how it does this, though this morality is not commonly taken to represent a kind of natural law that would stand as an alternative to existing positive law. What better vantage point to describe and analyze the positivization of law than places standing at the periphery of its original birth and development? The Islamicate world constitutes one such place, and probably a paradigmatic

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Introduction: Law Properly So Called, from an Islamic Vantage Point

one, for at least three reasons. First, Islam hosted a major normative system, the sharıˆ ‘a, which served as both backdrop and counterpoint to legal positivization in these latitudes. Second, the Muslim world was largely if not completely affected by the phenomenon of legal positivization, for reasons that were both international – imperial and colonial pressure of Western states – and internal – positive law as an instrument for state centralization and social engineering. Third, this process created a legal upheaval that profoundly affected the form taken by postcolonial entities: nation-states endowed with a system of positive law. No country in the Muslim world escaped this pattern, although it took various forms and rhythms. ABOUT THIS BOOK

We conceive our task as being threefold and the book is organized accordingly. First, the clarification of the grammatical use of the concept of law, together with the description of its treatment in historical and praxeological terms. Second, the study of some of its historical ontologies, including the ideas of constitutional law, customary law, and forensic psychiatry. Third, the inquiry into the ways in which present-day professionals and laypeople refer to law, and especially how they address the sources and rules of law and their interpretation, in practical terms. Such an analysis allows us to see that, nowadays, law is not understood as an equivalent of any kind of normativity but as this very specific thing which appeared together with the emergence of nation-states, the bureaucratic attempt at systematizing their organizations and controlling their populations, and the transformation of norms and rules into devices for engineering the world. Chapter 1 addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by moving the gaze away from the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, it shows that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural objects and contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine literature dealing with “legal pluralism” and “legalism” to identify the reasons why the term “law,” its conceptual extension, and the attribution of its predicative quality are problematic and oddly reflect the gap that can exist between a “legalistic way of thinking” about the world and the phenomenon of law in its contemporary meaning. Second, we specifically

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address works dealing with “Islamic law” and law in Muslim contexts to see, at the margin, what law can be, but also what one makes it to be, often abusively. Third, we outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its razor, clearing the mist, opening the domain of grammar. Chapter 2 explores the “historical ontology” of law. Concepts like law have a historicity that leads them to be characterized, in specific contexts, by formal criteria and determinate features. The question is thus to know how, in specific times and places, norms and categories are formulated in such a way that they not only capture reality but also act upon it. Throughout history, there has been a remarkable human propensity to formalize and categorize the world in an efficient way. However, it is also remarkable to observe that disruptions took place in how this enterprise of efficacious formalization was conceived of, oriented, and implemented. In that sense, one can speak of normative revolutions. Indeed, something occurred, between the Seven Years’ War and the First World War, that led a certain conception of normativity, linked to the nation-state and its legal structuring, to impose itself upon a globalizing world. This conception was the direct heir of the conceptualization that took place during the Enlightenment and was translated into a phenomenon of “legal positivization.” This conception was transplanted under the impact of many types of pressure. This process eventually created breaches with ancient normative regimes. Considering the mechanisms of legal positivization can shed light on the nature, magnitude, and legacy of this upheaval, notwithstanding the resistance that it faced. Often, legal positivization did not consist of the brutal overthrow of the former normative regime. However, thereafter, “new legal systems” emerged, which were endowed with specific vocabulary, newly founded institutions, and a particular elite, and they were able to claim to be the focal point for everything legal and for objective law in general. Chapter 3 is an introduction to legal praxeology, that is, the perspective that describes the law through the practices that “orient” (Garfinkel, 1967) to it. What is the space that exists between, to put it bluntly, formalism, which takes judges as prisoners of the rules the law enjoins them to follow, and sociologism, which considers the same judges to be under the influence of social status, moods, and absolute discretion? Legal praxeology is the research perspective that takes law seriously in its formal and socioanthropological depth. To put it differently, it considers it absurd to pretend to address the law while ignoring what its practitioners take as consubstantial to their activities, that is, the rules; but it also feels it compulsory to capture the rules and rule-referred activities through the modes of their practical accomplishment.

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Introduction: Law Properly So Called, from an Islamic Vantage Point

Legal praxeology refrains from modeling and theorizing the law if, by theorizing, one means abstract generalization under which one subsumes the infinite variety of cases. Particular cases are subject to ethnographic study in order to emphasize their proper mechanisms, including the legal reasoning adopted by those who, in a professional or lay manner, practice the law. The chapter is in two parts. First, it puts legal praxeology into perspective, presenting some of its pioneering work, addressing the “re-specification” of its object of study it calls for, and characterizing its features against the backdrop of legal sciences. Second, it puts its claims into practice and, using cases from Indonesia, addresses the specific issues of context, legal relevance, procedural correctness, documentary methods of interpretation, and normativity. Chapter 4, which opens the “historical ontologies” part of the book, deals with Moroccan constitutionalism. Moroccan constitutionalism is reflected in processes that occurred all over the world, but it also manifests specific features that cannot be explained without paying close attention to events in, and the peculiarities of, Moroccan political, social, and economic life. Moroccan constitutionalism can thus be properly described as a combination of global determinism and local contingencies. We proceed in four steps. First, we draw the broad picture of late-nineteenth-/early-twentieth-century Tunisian, Ottoman, and Egyptian constitutionalism, concentrating on the perspectives, against the background of which we describe and assess the first Moroccan texts. Second, we focus on constitutionalism at the time of independence to show that this stage was characterized by a revolutionary mood that aimed to establish the new states’ identities as well as to design their institutional architectures. Third, we describe the new, more technical constitutionalism that emerged in the 1990s, laid the groundwork for political opening, integrated a certain degree of pluralism and fundamental rights, and developed the possibility of constitutional review. Only in the fourth part do we address the issue of Islam, Islamic institutions, and Islamic referencing throughout Moroccan constitutional history. In conclusion, we expound on the role of constitutionalism in the general process of legal positivization. Chapter 5 focuses on the development of forensic psychiatry in Egyptian law and justice. The building of the Egyptian nation-state constituted Egyptians into individual citizens and subjects of law. The development of forensic medicine, in the criminal domain, altered the conception of evidence and thus causal reasoning in both scientific and legal matters. We contend that these transformations reflect the impact, through circuitous channels, including the Ottoman Empire’s legal reforms, of a civil-law-based way of thinking. In other words, what Egypt faced in the legal domain is best characterized by what we call the “positivization” of law and science. This

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holds true regarding the sciences of the mind and, by the same token, forensic psychiatry. The very science of psychiatry, and its corollary pathologies and the categories of patients concerned, was invented in the nineteenth century, when the mind was transformed into an object of knowledge. Egypt participated in this movement that witnessed the invention of psychiatry and accordingly created psychiatric hospitals, specialized personnel, specific vocabulary, and scientifically relevant categories into which people suffering from “mental illness” could be placed. This dynamic impacted upon law and justice, as it became progressively involved, by way of medical expertise, in the ways in which individual responsibility was assessed and sanctioned. This chapter is a step in the exploration of the transformation in the understanding of the mind through the words and concepts used by Egyptian courts. Chapter 6 focuses on the invention of customary law in Morocco. The expression “customary law” is conceptually problematic. There is a plethora of studies addressing the issue of customary law in Islam, but hardly any of them make a prior exploration of the concepts it relies upon and the implications the use of these words can have as to the findings coming out of these investigations. All these words and concepts are generally taken to be synonymous, while their historical ontology reveals how much their uses must be differentiated and refers to very specific and sometimes revolutionary transformations in the domain of law and normativity. From this perspective, we are interested in: first, clearing some confusion surrounding the use of terms like “habit,” “convention,” “custom,” “practices,” “ways of doing,” “natural law,” “customary law,” and “positive law”; second, exploring the literature in jurisprudence which addresses the distinction between custom, customary law, and the customary sources of law; third, conducting a very broad review of studies addressing the question of ‘urf in Islamic history, inside and outside the classical fiqh; fourth, focusing on colonial attempts to both describe customs in Morocco and transform them into customary law; fifth, focusing on a specific case in Morocco, which offers a remarkable sample of the transformation of a local custom into a positive legal provision; and establishing a parallel between customary law and Islamic law, leading to the conclusion that both were invented together with the globalizing of European legal cognition. Chapter 7, which opens the “legal practices” part of the book, addresses a theoretical question through the prism of French secular justice and its dealing with the Islamic normativity. The legal vulgate holds generality to be constitutive of the rule. This widely repeated and sometimes criticized definition refers to the formal properties of the rule and not to the rule as it is formulated, read, and applied in concrete practice. The chapter intends to

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Introduction: Law Properly So Called, from an Islamic Vantage Point

perform this “re-specification” of the question of the rule, starting from its conceptual constituents, to grasp the relationship of reference and use that those who invoke it can have in context. The general and the particular are therefore transformed into categories of practical reasoning, that is, into the achievements of those who resort to the rule in the course of their public, political, or judicial actions. In order to deal with the relationship of the particular to the general in the practice of law, the chapter first deals with the conception of the rule and its general and abstract character in the doctrine and theory of law. It then takes up the issue from the perspective of practitioners and users of the law. Finally, it studies the so-called “burkini” case, in France, to examine how the issue is contingently deployed at three levels: “public opinion,” the administrative authority, and the judging authority. Chapter 8 takes a comparative perspective on the use of the fiqh by contemporary courts in Morocco, Egypt, and Indonesia. Most Muslim-majority countries have family laws presenting themselves as the codified translation of the provisions of one of the many Islamic doctrinal schools. There are situations, however, in which the law remains silent. In such case, judges must turn to what legislation designates as the fiqh in order to find provisions that adequately fit the cases at hand. It is up to judges themselves to interpret the law and to determine where to locate the relevant provision. In this process, new techniques and modes of reasoning are used. After addressing institutional and legal transformations in Morocco, Egypt, and Indonesia, the chapter focuses on the domain of family law. We examine cases that illustrate how judges go about seeking a solution in the body of the fiqh when asked to authenticate marriages. In conclusion, we develop an argument about the nature of judges’ work in the management of the reference to Islam within the framework of positive, codified, and standardized law. We argue that the methodology and epistemology adopted by contemporary judges, the legal material on which they draw, and the means by which they refer to this material have fundamentally altered the nature of legal cognition and of law itself. Chapter 9 examines Indonesian, Lebanese, Egyptian, and Senegalese judges’ search for legal grounds in cases relating to homosexuality. Positivist dogma contends that judges must base their judgments on clear, general rules whose application is predictable. In this sense, rules have a determinate meaning and judges apply them in a mechanical way. Against this dogma, the realist critique argues that legal rules and principles are indeterminate, malleable, filled with implicit assumptions, and open to interpretation. In between these two viewpoints, contemporary legal doctrine recognizes the fact that there is always a degree of indeterminacy in rule interpretation and rule

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application, but that this does not preclude the fact that, in most cases and especially “soft” cases, there is little disagreement as to applicable rules, that people routinely understand rules, and that they follow them more or less blindly. In “hard” cases, that is, in cases whose legal basis is less explicit and necessitates a more stringent effort of interpretation, it is nevertheless true that the discretion of judges is much wider and permeated by factors external to legal rules per se, including moral and political principles, standards of justice, and professional practices. We want to describe how judges play by, and with, the legal rules. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges are looking for rules on which to base their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. On the other hand, moral considerations seem to deeply influence the same judges’ legal cognition. In conclusion, we summarize the main points we make in this book, concentrating on the value of an approach through practices, historically and anthropologically. We also show how the process of positivization is still active in the domain of Islamic normativity, beyond the law and at a global scale. Finally, we contend that it is from the penumbral cases that the perspective onto law proves most heuristic.

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part i

the concept of law

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1 Law as a Concept

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, it seeks to underscore the problematic nature of characterizing law as a universal concept. We intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, and pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with “legal pluralism” and “legalism” to identify the reasons why the term “law,” its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a “legalistic way of thinking” about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with “Islamic law” and law in Muslim contexts to try to see what law can be at the margin, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. 1.1 USES AND ABUSES OF THE CONCEPT OF LAW

Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of “folk law,” “legal pluralism,” and “legalism,” with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow 29 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.002

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us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. 1.1.1 Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln and Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law has led. While recognizing, as Gluckman (1965: 227) does, that the term “law” and its derivatives have various meanings, most contributions are based on an implicit concept that allows the authors to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called “primitive law” starts from the characteristic features of modern law and doctrine (de Josselin de Jong, 1994: 111); or that the idea that the “Common Law” is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122)1; or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen’s or Hart’s, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a “law” characterized as primitive, customary, Islamic, Hindu, Chinese, or whatever precisely consists of considering a given normativity (primitive, customary, Islamic, Hindu, Chinese, or whatever) through the cognitive framework of a historically situated concept, to wit, the concept of the law badly characterized as “modern.” In other words, the relevance of the use of the concept of law to speak of such normativities deserves to be examined afresh. One way to escape the pitfalls of the controversial concept of law is to substitute a plural view. This maneuver, however, is not very convincing. One can indeed claim that a word has multiple meanings, but it is not the case with a concept, unless we speak of the many concepts of a concept, which is selfrefuting. This is, however, the option chosen by the supporters of the many variants of “legal pluralism,” who tend to assimilate a contingent concept – law – with a generic concept – normativity. This tendency can be found in several contributions to Donlan and Heckendorn Urscheler’s 2014 volume Concepts of Law: Comparative, Jurisprudential, and Social Science Perspectives. Mark van Hoecke (2014: 52), for instance, claims that Kelsen’s

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conception of a legal system “has been alien to most legal cultures worldwide most of the time.” Such a statement is conditional upon an extensive preconception of what law is. The consequence is that we find ourselves entangled in what the author himself calls “the morass of ‘legal pluralism’” (p. 51). While observing very accurately that legal systems are born from the nineteenthcentury Copernican revolution (p. 53) and that legal theories reflect this upheaval (p. 52), that is, while claiming the wholly contingent character of the concept of law, van Hoecke cannot refrain from stating, based on Kant, that this concept escapes its Euro-centric formulation.2 By so doing, law becomes a tautological evidence. The problem proceeds from the fact that a noncontextual meaning is given to a word whose sense is, however, not located outside its uses in language (Wittgenstein, 1963: §43). This tautological tendency may be seen in the attempts to give law a pluralist definition. Such is the case with Franz von Benda-Beckmann, for whom legal pluralism would be “broad enough to capture simple and complex legal configurations” (von Benda-Beckmann, 2002: 40, quoted by Husa, 2014: 79). In the same way, Werner Menski (2014: 100–1) considers that law is basically made up of four entities: natural law (ethics, values, morality, religions, convictions of all kinds), sociocultural and socioeconomic norms (customs and ways of doing), state law (rules of states’ positive laws), and international law and human rights (new natural laws). Law is nevertheless, according to Menski, a property inherent to human societies. One can wonder what analytical utility and efficacy a concept understood in such a broad way can have. Thanks to the extreme dilution of the notion of law, no useful definition is ever obtained, whereas this issue of meaning is never problematic when recognizing that the concept of law corresponds to these legal systems originating in the positivist movement and the constitution of nation-states. “All enquiry into law necessarily starts from some conception of law” (Melissaris, 2014: 109). Such an intuitive conception of law cannot but oppose any attempt at “an ahistorical, a priori” (Cotterrell, 2010: 776, quoted by Melissaris, 2014: 112) definition. The study of law cannot therefore escape what we mean by the word today, and this excludes the extension of the concept beyond what it corresponds to in this context, except in a metaphorical and controlled manner. However, Melissaris (2014) calls for this intuitive view to be disposed of in favor of a kind of conceptual lowest common denominator that would be valid for concepts such as time and space as well as for those of norm and law. While the author sees a virtuous “rhetorical artifice” (p. 118) in the indiscriminate usage of the word “law,” it is actually misleading. When calling upon “deep conceptual distinctions” instead of “contingent distinctions,” it ascribes to epistemologically subjective

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entities an ontologically objective nature (see Searle, 1996) and eventually creates only deep conceptual confusion (Wittgenstein, 1963, as quoted by Drury, 1973: 30). While extending the concept of law to any kind of normativity, pluralists invent windmills for the sole purpose of charging at them (Valcke, 2014: 127, quoting Pfersmann, 2010) and restate in the abstract claims already made for a long time (Valcke, 2014: 128–9, quoting Luhmann, 1986, and Raz, 1979). This is especially true of debates concerning “the boundary between the legal and the social” (Croce, 2014: 153). What border can we imagine between these two “domains,” while the legal is already thoroughly social? This does not work the other way around, contrary to claims made by Gordon Woodman (2009, quoted by Croce, 2014: 155) who does not see any “difference between a genuinely social and a genuinely legal domain.” This is a taxonomic mistake: the legal is a particular form of normative expression belonging to a superior class, that of social norms. In other words, legal norms are not conflated with social norms in general but constitute a particular subclass. Conversely, Woodman claims that law’s ubiquity and universality would be coextensive to the set of rules with which any social group would be endowed. By so doing, he deprives himself, as stressed by Kelsen (1945: 26, quoted by Croce, 2014: 156), of “the possibility of differentiating law from other social phenomena.” The question is not to define what distinguishes the legal from the social but to consider how law, as a social technique of description, “filters social reality in a particular manner” (Croce, 2014: 157). This method of describing the world is historically situated, just as is the science that deals with it; it is located not in the simple continuity of norms and normative discourses that preceded it but, rather, in a radical discontinuity. Today, speaking of the concept of law means speaking of the contingent legal system identified by Austin and the positivists (Austin, 1954 [1832]: lect. XI, quoted by Cotterrell, 2014: 194; see also Raz, 1979: 50, also quoted by Cotterrell, 2014). Instead of seeking to identify law on the basis of criteria that are external to it, one is thus led to study it in its own terms (Cotterrell, 2014: 197), on the basis of the observation and description of its variations on a single theme, that of the nation-state’s positive law. 1.1.2 Legalism Paul Dresch (2012b: 1) defines “legalism” as “these themes [that] include an appeal to rules that are distinct from practice, the explicit use of generalizing concepts, and a disposition to address in such terms the conduct of human life.” The ambition of this denomination is to capture what law means, for whom, and in what contexts (Dresch, 2012b: 8). The notion of legalism

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certainly permits escape from some dead ends of the definition of law through the examination of the family resemblance universally shared by a certain type of reasoning. “Rules of private associations and of the modern state work in similar ways but the latter alone are ‘law’, being comprehensive and supreme” (Raz, 1979, quoted by Dresch, 2012b: 15). It is not, however, certain that Dresch fully considered what his terminological choice allows and forbids. In any case, he did not fully exploit it, despite many of his remarks being highly relevant. This is the case with his critique of the theories of legal pluralism assimilating law with social control (Dresch, 2012b: 9) or making the law the mirror of society, whereas it looks much more like a map making it possible to live in society on the basis of categorical rules (Dresch, 2012a: 161). It is also the case with his insistence on the categorical functioning of legalism: legal categories provide costumes and roles into which people, actions, and events fit (Dresch, 2012b: 13). From this viewpoint, “legalism means the world is addressed through categories and (explicit) rules that stand apart from practice” (Dresch, 2012b: 15), “categorizing concepts,” to borrow from Edward Levi (quoted by Dresch, 2012b: 25). Specialized legal reasoning, whose birth he situates at the end of the Middle Ages, consists of “relating those concepts to each other in a jurisprudence of the kind we recognize” (Dresch, 2012b: 17). One observes, at the same time, the will to square, through their definition, the whole set of human relationships whose logical implications one wants to exploit (Strayer, quoted by Dresch, 2012b: 17). It is at this very point that law becomes independent of common sense (Dresch, 2012b: 19–20) and becomes “the theology of everyday life” (Davis, quoted by Dresch, 2012b: 21), that is, the rationalizing of experience and its forms. Legalism, in this sense, is a conceptual order (Dresch, 2012b: 33) in which words are performative and create new categories (see Scheele, 2012: 227). All forms of legalism have in common the fact that they “map and organize the world in terms that do not reduce to encounters among specific persons. The categories and rules invoked are supposedly applicable instead to every instance of the same type, which suggests a view of life, even locally, rather different from simply knowing one’s relatives and neighbors” (Dresch, 2012b: 25). Because of its categorizing nature, law works as the basis for a system of belonging and exclusion of persons (Dresch, 2012b: 33). Dresch (2012a: 155) goes further by stressing the difference between particular laws (re`gles, Gesetze) and the law (le droit, Recht). Law, he says, is characterized by modern ideology which makes its concept the standard against which other experiences must be evaluated (Dresch, 2012b: 30). It is true that the language of rights emanates from Locke’s and Hobbes’s political theories and culminates in the American and French revolutions. It is also true that we have become so used to the

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judicial process established by the state that we have forgotten the possibility of speaking of law differently (Davis, 2012: 87). Contemporary state centralization crystallizes institutional understandings, practices, and forms to such an extent that we have come to exclusively associate the state and the law, which, in the Kantian tradition, wholly emanates from a central authority (Roberts, quoted by Dresch, 2012a: 151). Contemporary anthropology conceives of the law only in relation to a power that enforces compliance (Dresch, 2012a: 166).3 The concept of legalism is fertile, especially in its capacity to avoid the dead ends to which any attempt to analytically define the law lead. First, we must emphasize that it is impossible to escape from contemporary and Western representations, which are centered on the state and positive law (Davis, 2012: 87). Second, we must strive for a perspectival and contextual definition of law (Kantor, 2012: 66). Speaking of legalism instead of law is going in the right direction, in the sense that it refers to a way of thinking or reasoning more than to a specific normative system. At the same time, the use of a term whose etymology refers to law creates some confusion in turn. In fact, one often witnesses a conceptual inversion: while we should speak of law as a particular instance of the generic category of normativity, it is often made into a generic category encompassing all particular instances of normativity. Law is then treated as other terms from ordinary language, which science takes hold of to make them more sophisticated and transform them into analytical categories. However, one could as well observe the existence of language games sharing a family resemblance, that of normativity, without this justifying the attribution to this term of an analytical status that it does not possess (or only at the expense of confusing distortions). Going deeper in the study of law means first accepting that one must take a step back and start both the analytical and the ethnographic job of studying normativity and its main constitutive elements, that is, rules. In that respect, the teachings of Analytical Jurisprudence are more relevant than ever, especially when it claims that legal concepts and sociological descriptions go hand in hand, since conceptual constructions must be studied in the context of the societies that produce them (Humfress, 2015: 87): concepts and rules do not float in a vacuum, outside practices; neither do they function in a purely instrumental manner (Humfress, 2015: 103). This tiny step back – if we do agree upon the fact that rules or norms, as Herbert Hart states it, are the building blocks of law – has the effect of clearing the conceptual mist created by the use of a term which is historically contingent and overloaded. Finally, there remains no problem to speak of, for instance, the “aspirational” (Scheele, 2012; Pirie, 2015: 105) nature of certain norms and rules, since, once stripped of the predicate “legal,” they recover their proper features and purposes,

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which, from one context to another, can be specific or common, divergent or convergent, universal or local, regulating or idealist, constraining or indicative, etc. If the latter is only a contingent case of application of a set of rules understood sensu lato, it becomes much easier to speak of law stricto sensu: as soon as the shadow of law ceases to float above their use and study, the concepts of norm and rule can be examined afresh, as Peter Winch does, for instance, when claiming that any meaningful behavior is ipso facto articulated on rules, be they explicit or implicit (quoted by Scheele, 2015: 169). To speak of rules and norms instead of law creates analytical room for maneuver encompassing a range of phenomena much broader than the legal phenomenon alone.4 For instance, it makes it possible to speak of the categories of the medieval system of social relationships outside the legal straitjacket that does not suit them (Rio, 2015: 150) and thus to better account for the use of intermediary terms offering, at that time, a greater plasticity and therefore a margin of interpretation, far from the logical ordering suggested by the concept of law (Pirie, 2015: 121). 1.2 THE CONCEPT OF LAW FROM ITS ZONE OF PENUMBRA: THE CASE OF ISLAMIC LAW

In his now classic The Concept of Law, Herbert Hart (1961) opposes a noncontroversial core meaning and a fringe of penumbra open to interpretation. It is precisely this fringe that we would like to explore to better capture, by the negative image as it were, the core of the concept. In this periphery we find normative forms of a heterogenous nature with various designations: customs and customary law; sharıˆ ‘a, fiqh, and Islamic law; colonial law; legalism. By reviewing part of this literature, we hope to strengthen our argument that the concept of law is not universal. 1.2.1 Historical Determinism In The Long Divergence: How Islamic Law Held Back the Middle East, Timur Kuran (2011) draws a broad historical picture of the relationships between law and economics in the Mediterranean to illustrate the argument that Islamic law has structurally impeded the economic development of Islamic societies. Starting from the premise that “the premodern economic institutions of the Middle East, which served identifiable economic ends, were grounded largely in the dominant law of the region, Islamic law” (p. x), he seeks to demonstrate how the essential feature of a modern economy was lacking in this part of the world. Such an economy is made of “the mobilization of productive resources

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on a huge scale within long-lasting private enterprises and the provision of social services through durable entities capable of transformation” (p. 5). He situates the turning point at the eve of the eighteenth century, that is, at the moment when institutions linked to Islam, which until that time had provided static advantages, became dynamically disadvantageous. Endorsing the concept of “path dependence,” he argues that institutions designed to guarantee economic prosperity, family bonds, and political stability eventually became dysfunctional, without having the capacity to move away from their historical tramlines. The idea is also that a society can undergo endogenous development up to the limits of what is offered by its internal intellectual resources, but that going beyond these limits is conditional upon a revolution, which, by using external resources, upsets the foundations of the society (p. 9).5 Kuran’s (2011) argument is of great interest. It shows how institutions present affordances, structures of possibilities, which, whether or not they are exploited, have long-term effects. The same institutions can prove dysfunctional, again in the long run, unless they are distorted, something that always creates difficulties with respect to supporters who have a conservative attitude and are, moreover, sustained by the sacred character of the scriptural sources. It is clear here that the “problem” does not proceed from Islam per se but from the embedding of contingent questions in a transcendental structure. This embedding hampers change (for better or for worse), which remains possible but incurs a high – and sometimes exorbitant – price, not to speak of possible return to the statu quo ante. The question remains, however, as to whether, by using the notion of “Islamic law,” Kuran (2011) facilitated the exposition of his argument or whether he muddied the waters. What he says regarding the state, which historiography tended to overstate (p. 17), could be easily transposed to law: the nature of archives, the urban character of its development in vastly rural societies, its written character in an oral world are all elements leading to the exaggeration of its width, impact, and dissemination.6 Moreover, the idea of a homogenous and coherent legal system is conceptually problematic, since it means anachronistically and surreptitiously projecting onto an older world a conception that is proper to ours. In short, it would have been better to say that there was no “Islamic commercial law,” in the determinate and singular form, instead of arguing about its imperfections. And it is probably because there was no “Islamic commercial law” that, first, the irruption of the positivist model of an integrated and self-conscious commercial law posed such a challenge and, second, many Muslim jurists strove, from that time onward (but not before), to assemble a series of provisions more or less attributable to the sources of Islamic doctrine into a homogenous and integrated legal discourse.

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1.2.2 Conceptual Overstretching In her book on the beginnings of Islamic Law, Lena Salaymeh (2016) proposes a radical critique of Islamic legal sciences, their essentialism, and their developmentalism. This critique is based on a definition of law as “a system of interacting norms and practices” (p. 2), a definition that englobes state and nonstate laws. Islamic law therefore corresponds to “the diverse legal traditions that have been and continue to be produced with the objective of being part of the Islamic movement” (Salaymeh, 2016: 2), in a way that is both pluralistic (coexisting with other legal traditions) and polycentric (with a multiplicity of groups and institutions concurring in its production) (p. 3). Thus, Islamic law has neither an intrinsic nature nor necessary attributes; it is only the consubstantial association of the Islamic community and its legal system (p. 5). To the determinism of Islamic legal sciences, which proceeds in a manner that is largely comparable to Islamic orthodoxy, one must oppose a contextual and contingent perspective that neither anthropomorphizes nor reifies Islamic law (p. 41). At its beginnings – a term that is distinct from that of “origins” – Islamic law is “a composite legal system, mixing laws, customs, and norms from a multitude of traditions” (p. 84). One must therefore get rid of modern identity categories that make law belong to an ethnicity (p. 85); we should instead recognize the intrinsic hybridity of Islamic law, as well as its original and autonomous (nonborrowed and nonderivative) character. Quoting Marc Bloch, Salaymeh (2016: 89) reminds us of the danger of confusing genealogy and explanation. Similarly, she claims that there is danger in classifying laws into families – Aryan vs. Semitic, for instance – in order to draw ontological conclusions from the classification in a quasimechanistic way: to Aryan law, secularism, the state, and liberty; to Semitic law, theocracy, the absence of state, and despotism (p. 93). This way of conceiving Islamic law as it is related to Roman law, Jewish law, or any other law induces power relationships (in terms of purity, sophistication, originality, or even virtue) that are mistaken (p. 98). According to Salaymeh (2016), the Roman, Jewish, and Islamic legal systems are not part of a game of linear derivation but were bred in one common Middle-Eastern legal culture that modified its normative orders under the effect of both internal and external dynamics (p. 102). Islamic law has neither an essence nor an origin but a hybrid, syncretic, and contingent nature: it is what Muslims claim it is, in a manner that shows contrast according to time and place (p. 103); it corresponds to the Islamic legitimizing of Abrahamic practices through a whole array of hermeneutic strategies (p. 105). The evolutionist model of the genealogical tree fades in favor of that of the bush against a shared cultural

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backdrop (see Gould, 1994). The sociopolitical context becomes essential to account for changes, sometimes radical, which occur in the identification and interpretation of legal norms. While many of the critiques formulated by Salaymeh (2016) are relevant and likely to advance thinking about Islamic law, their conceptual bases are fragile. First, one can doubt the existence of a radical difference between thinking about the origins of Islamic law and thinking about its beginnings, unless we believe that the beginning of something is not located in a context that only slightly preexists it. More importantly, one must question Salaymeh’s definition of law: a system of interacting norms and practices. Such a definition is both over- and underinclusive. It encompasses any normative system, but it neglects a whole array of properties that would seem essential to any lawyer. The definition of what the law is does not belong exclusively to lawyers, but it is strange to offer an image of their business in which they do not recognize themselves whatsoever. Moreover, this definition assimilates the law with any effective normative order, which leads us to wonder about the status of other normative orders such as esthetics, mystics, authenticity, or science. The issue of evolutionism should be nuanced. One must certainly dismiss the idea of Semitic law opposed to Aryan law, or the idea of a linear path leading, through successive borrowings from Jewish and Roman laws, to Islamic law. However, first this caricature is not representative of the contemporary state of the art. Second, excluding any kind of evolution amounts to throwing the baby out with the bathwater. The problem with evolutionism is that it can take a deterministic twist, when it claims that some evolution was inexorable. However, as nicely demonstrated by Alain Testart (2012), there should be no problem in accepting that an institution is the product of the evolution of another which anticipates it, that some law has gone through an evolution, that the system of positive law is the outcome of an evolution concomitant with the emergence of the state and with scientific systematization thanks to the spirit of Enlightenment. The evolutionist argument cannot be hegemonic, but nor can its denial. Such is also the case with borrowings. It is wrong to claim, like Alexandre Papadopoulo (1976) in the field of esthetics, that there is no such thing as Islamic law because all its components would be alien to it. However, it is perfectly admissible to show that an institution like the hisba, understood as the police of good morals and market practices, was historically borrowed from Byzantium but was obliged, in order to fit in with Islamic doctrine and practice, to sift through the Quranic verses to identify “the command of the good and the proscription of evil.” Legal historian Alan Watson (1993) showed what such borrowings could look like, sometimes taking the form of actual transplantations. In that sense, acknowledging

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borrowings does not imply that the borrower’s law is falsified or fake: Egyptian law, for instance, is fully Egyptian, even though its history and practices relate it to French civil law. To say, in order to escape from the dead end, that Islamic law is indeed Islamic, but also hybrid and syncretic, creates more confusion than it helps to clear the mist. On the one hand, the notion of hybridity supposes the existence of two equivalent entities capable of hybridizing with one another. It is far from certain that the different entities called “law” (Islamic, Sassanid, Jewish, customary, Roman, etc.) share the same nature, unless we unduly reify the concept of law and give it an overinclusive extension. On the other hand, the concept of hybridity supposes the reciprocal influences of two entities leading to the birth of a third one. In that sense, hybridizing is only a weak substitute for borrowing or transplanting, except it does not implicate the domination of one entity over the other (something which is ethically desirable but empirically questionable). Furthermore, to say that Islamic law started when Muslims claimed it as theirs is an admissible proposition, but only on the condition that the object which is claimed can be empirically witnessed and not only postulated by the scientist. This is possible only if we make the concept of Islamic law so overinclusive that it encompasses any kind of normativity in the Islamic context, whatever the place and time (Salaymeh, 2016: 103). The price of such a dilution is, however, high, since it means that the concept does not designate anything precise and, thus, does not serve as the basis for any analysis. It amounts to saying that US law corresponds to all the forms of normativity indexed on the American context, something that neither tells us anything about these normativities and what distinguishes them from one other, nor contributes usefully to the study of what is commonly designated “US law.”7 1.2.3 Historical Continuity In his Pragmatism in Islamic Law, Ahmed Fekry Ibrahim (2015: 3) explores the uses and developments of a technique consisting of exploiting, in an eclectic manner, the legal pluralism intrinsic to Islam – that is, the four schools of Sunni doctrine – with the aim of achieving pragmatic objectives. He makes it clear from the start that the notion of Islamic law refers to substantive law (furuˆ‘), legal methodology (usuˆl al-fiqh), and doctrine (fiqh). His use of the term “Islamic law” “should therefore be understood to refer to ethical, ritual, and legal doctrines, as well as to legal methodology and the link between the two in which legal methodology is applied to gain understanding (fiqh) of substantive law” (p. 2). Underlying his exploration of pragmatic eclecticism

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lies a question about the sharıˆ ‘a and the pathway that has led it into modernity, and thus a question about legal reform in Islam as a process of creating modern laws, keeping authenticity intact by soliciting scriptural sources (Qur’aˆn and Tradition). Today, the technique of pragmatic eclecticism is used by scholars and activists who refer to the whole Sunni tradition as a unique code on which they can draw to answer the changing needs of the Muslim community. Some authors, like Wael Hallaq (2013) or Nathan Brown (1997a), consider that this contemporary reformism is, in the Islamic context, unauthentic, as it would not preserve “the organic connection with traditional law and society” (Ibrahim, 2015: 6). They disqualify pragmatic eclecticism at the same time because it would be a by-product of modernity. For Hallaq (2013) again, the traditional rules one finds in nation-states’ laws are unauthentic remains, since they are disconnected from the substance and methodology of the classical fiqh. Ibrahim (2015: 219) shows convincingly that this does not hold true. In his opinion, if it is clear that codification created a deeply novel legal dynamic and that one can observe obvious transformations (e.g. the decline of the waqf, a new class of lawyers, the transformation of law made by jurisconsults into law made by legislators), the question must nevertheless be framed in terms of continuity and not rupture: pragmatic eclecticism is only a new version of classical differentials between legal methodology and positive law, and only a nominalist attitude makes it impossible to see that the eclecticism technique already existed in classical methodology, although under other names (pp. 8, 167, 177). In many ways, Ahmed Fekry Ibrahim’s work is remarkable: documentation, mastering of doctrinal and judicial history in the context of Arab Muslim societies, linking of classical and modern periods. However, it also raises problems, which, as in the case of Timur Kuran (2011; see Section 1.2.1), are mainly conceptual. His over-extensive conception of the term “law” leads him to comparisons that are even more hazardous in that they confuse the work of jurisconsults and judges. When emphasizing several times the upheaval induced by codification and the transformation of procedure-based law into substantive law, Ibrahim (2015) had the opportunity to show how much more appropriate it would be to speak of legal revolutions. He does not do so because this would run counter to his argument concerning continuity, but this argument is made back to front: present-day Islamic law does not have its roots in the ancient fiqh, but the ancient fiqh finds extensions in present-day substantive law. In other words, if there is continuity, it is not that of the concept of law but that of the substance of some rules, doctrinal yesterday, legal today. The question is obviously not, as Hallaq (2013) or Brown (1997a) seem to claim, that of authenticity – authenticity is not an essential property of

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things but something that is attributed to them – but that of a revolution in the normative sphere. “Purists” understood it very well when considering that codification is an instance of secularization. When drawing what he believes to be a heuristic comparison, first between primitive Islamic law and Common Law, and second between classical Islamic law and Civil Law, Ibrahim (2015) makes an error of category that creates conceptual confusion. Such a comparison sets the analytical framework, with the negative consequence of forcing the terms of the comparison into an inappropriate pattern. Moreover, the author tends to concentrate on people who are on the margins of the development of Egyptian family law: scholars of the fiqh, although the law-making process is now in the hands of the legislative power; religious circles, although the law is now defined in the political, governmental sphere. In short, it would have been more appropriate to say that it is not Islamic law that changed in nature but Islamic fiqh that transformed into law. 1.2.4 The Colonial Invention of Islamic Law In the volume Faire l’histoire du droit colonial, edited by Jean-Philippe Bras (2015a), we explore another case, that of one law embedded in a specific time, the colonial period, and thus in a flagrant discontinuity with respect to the former precolonial period and the later independence period. However, this “parenthetical” law also produces facts and effects of continuity: the perpetuation of Islamic and customary “laws” on the one hand and the prolongation of the civil law model on the other (Bras, 2015a). First, it may be observed, with Claude Bontems (2015: 309), that Algerian “Islamic law” was invented, often by a tandem consisting of an Islamic scientist and a jurist, the latter providing the cognitive framework for the understanding of the raw material exhumed and translated into the language of the law by the former. From this point of view, colonial law upset the indigenous normative frame, under the pretext of systematizing the preexisting law, although it actually involved the new conceptualization of a discriminatory law. The example of land law is striking. Jean-Philippe Bras nicely dissects its mechanisms. Far from being an unequivocal reading of colonial domination, his analysis illustrates its ambiguities and ambivalences (Bras, 2015b: 86). First, he reminds us that French colonization was based on untenable principles: the creation of an empire on the basis of a nation-state and the disparity of rights contested by a universalist ethos (p. 87). Lawyers were called upon to legally base a property regime that was incompatible with the economics of the colonial plans, thus establishing a dual system, between land tenure certification using the French method and uncertain “Islamic” land tenure open to grabbing. In the colonial language,

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this Islamic regime was explained by the cultural features proper to an “incomplete” – and thus “colonizable” and “civilizable” – civilization (p. 89). Land registration and citizenship policies are symptomatic of this ambivalence, since they give indigenous people access to modern property rights while at the same time dispossessing them of their proper instruments and jurisdictions (p. 96). In this context, jurists operated in two directions at once, referring indigenous people to their traditional institutions and allowing them access to conditional modernity (p. 109). Jean-Robert Henry (2015: 226) emphasizes this when showing how colonial legal texts played with the egalitarian principles of French law in order to accommodate those principles with colonial domination. We thus see how the universalist pretense of law was continuously countered by the necessity to keep the category of “indige`ne” (native), without which colonial domination could not be sustained. In this process, the notion of Islamic law made it possible to perpetuate the category of indige`ne and sometimes even to act in a direction that was contrary to the natives’ interests (in relation to land issues, p. 100) or even regressive (in family matters, p. 192). As shown by Florence Renucci (2015: 192), this mechanism of understanding the Islamic norm in terms of French law led a jurist like Marcel Morand to formulate the theory of Islamic law’s immutability and, for instance, to translate works dating from the fourteenth century to serve as references in the administration of contemporary justice, with the paradoxical consequence that colonial law “re-Islamized” Islamic law. The Revue alge´rienne was, in that respect, very instrumental, while also echoing the dilemma of jurists when confronted with both colonial interests and legal logic (p. 195). If we examine the postcolonial period of independence, we observe that the political break was not really accompanied by a legal one, at least in the case of Algeria. In this process, Islamic law, which had been integrated into positive law, constitutes a mere chapter of civil law (Henry, 2015: 236). One should therefore be cautious when speaking of a break with the colonial past and its law, which found ways to perpetuate itself, despite the fact that its object, that is, the colony, had disappeared. Instead, one should emphasize the crucial, though nuanced and complex, turning point that colonial law constituted in the colonized (and colonizing) societies’ normative life; and also the break it represented when imposed and in its subsequent modes of self-perpetuation. This volume on colonial law comes at the right time in our discussion, as the break that it deals with is explicit, whereas for many reasons, including nominalism, books on Islamic law preferred to emphasize the idea of historical and semantic continuity. The book clearly contains the idea that, before the break, colonial law, even in domains where it claimed continuity, such as personal status law or property law (especially collective land), actually

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represented the imposition of a new cognitive framework in the understanding of normative matters that were developed over a long period but according to a wholly different grammar. One also finds the idea that, later on, there was no break with colonial law, which rather accompanied a radical political change in the mode of continuity. In many respects, Islamic and colonial laws are enmeshed, since the treatment of Islamic normativity in terms of positive law is closely related to the nineteenth century, which could rightly be called the “century of law.” If colonial law ended up being a complex mass of legislation with disparate sources and objectives, it is probably precisely because it consists of the will to apply a concept – presented as universalist but actually historically situated and connotated – to a reality that does not correspond to its breeding ground. 1.3 A CONCEPTUAL INQUIRY

More than two centuries of effort failed to solve the enigma of the definition of the concept of law. It is, however, a false enigma, as is often the case with badly phrased questions. As Wittgenstein puts it, a scientific approach can multiply its methodological tools and nevertheless become bogged down in conceptual confusion (quoted in Drury, 1973). This leads to dead ends or, worse, to absurd proposals. Conducting an inquiry into law as an empirical object corresponding to instances of an a priori universal concept amounts to searching for the Holy Grail. In the Platonic world of ideas, “law” per se does not exist. In this domain, there are only concepts, that is, words in the sites where they are used. As a concept, law must be understood within its grammar-in-action, which is by definition contextual; one can describe its historical and anthropological ontology. However, it is a fact that this ontology refers to an experience that is totally specific: positivization. The concept of law corresponds to this particular moment when attempts began, together with the emergence of a centralizing nation-state, to systematically frame the natural and social world, and to organize its regulation in an exhaustive and legal-rational manner (Weber, 1978 [1921]). This does not mean that the concept does not have roots that go back to an earlier past; neither does it mean that numerous words used in the legal vocabulary did not exist before the concept; it rather means that law, as a historically situated concept, cannot be indiscriminately extended to any normative object. Concepts are abstractions of features (but not necessarily of a definite set of features) characteristic of something that could be expressed with different words and in different languages. The concept of cat, for instance, is the abstraction of an assemblage of elements of anatomy, size, form, and behavior,

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among others, characterizing a specific animal which the use of several different words expresses. The concept and the animal it designates remain the same regardless of whether we speak of “kat,” “Katze,” “qitt,” or “cat” (Bennett and Hacker, 2003). In this case, the object of which the concept is an abstraction is anterior to the concept itself. The situation is different when the object of reference is a “social reality,” which is by definition constructed (Searle, 1996; Hacking, 1999). Marriage, for instance, is not heterosexual by essence or nature, for it does not constitute an observable reality. In the case of nonobservable reality, the object is coextensive with its concept. In other words, law is what its concept says it is, and the multitude of concepts of law refers to a multitude of laws. We live in a universe in which objects exist because of the definition we give them, and this definition is necessarily “stipulative” (Troper, 1994). Nothing can validate or invalidate the attribution of the quality of law to some social reality. This does not mean that stipulative definitions are qualitatively equivalent, far from it (Tamanaha, 2000: 4), but only that the definitions are not truth proposals. In that respect, law can just as easily be social control, good manners, the claim to the ownership of something, Islamic law, customary law, a legal system, or whatever else to which someone would like to ascribe that quality. The main problem, here, is that the stipulative definition given to the concept of law in one of these instances does not correspond to that given to it in another instance, unless we speak of more or less obvious family resemblances. In that sense, Roman law and Islamic law seem to share more features than, for instance, law understood as social control and private international law. Another problem created by conceptual confusion is that it generates absurd questions, that is, questions devoid of meaning. This is often the case when an expression is used against its rules of usage or when an old expression is endowed with a new meaning, possibly technical or quasi-technical, while surreptitiously mixing the old with the new (Bennett and Hacker, 2003). In that sense, it is absurd to ask, at a general level, “What is law?” However, the question “What do people mean when contextually using the word ‘law’?” is not only meaningful but also merits a conceptual inquiry. Conceptual inquiries face several pitfalls. The first is related to the etymological delusion. This consists of considering that because at time t a word finds its origins in another word at time t-1, it necessarily shares the same conceptual sense with the latter. Such is the case with the French terms “justice” and “droit,” which, because they have etymological links with the Latin words “ius” and “directum,” would have an identical sense. This is without taking into account, on the one hand, the strange convolutions of history (Kerneis, 2018), which chooses in vernacular French the word “droit”

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to express “ius” in learned Latin, “droit” being itself derived from “directum,” the root “ius” being kept only in composite words referring to the artful practice of law (“jurisprudence”) or the act of “relating the law” (“judiciaire”). On the other hand, it ignores the fact that concepts have a history that the words used to express them either lack, or even twist. To take the same example of the word “law,” the concept it eventually expresses, at the end of the eighteenth century and afterwards, demonstrates a specific “historical ontology” (Hacking, 2002) whose relationship with the popular practices of which the vernacular Latin word is the expression is tenuous (Kerneis, 2018). The second pitfall is the difficulty of translation. How can we consider that the words “diritto” and “law” express the same concept of law? Or, inversely, how can we escape the inability of “diritto” to express the same concept as the word “law,” since both convey ineffable meanings? As we just stressed, at precise historical points some words acquire a determinate conceptual meaning which, through the process of dissemination and translation, can be extended to other words and into other languages. Through this process, these words will acquire the new conceptual meaning and, by the same token, will lose their original meaning – or will keep it in a parallel manner, according to the circumstances of their uses and the courses of action in which they are uttered. There is no word that cannot be translated, nor is there any concept that cannot be expressed by many words from different languages, but the translation process is complex and only a meticulous grammatical study can solve this problem. This is how the word “tashrıˆ ‘” has come to express the concept of legislation in Arabic, at the end of a process of translation of civil law concepts into Arabic, through the manipulation of a verbal root (sh-r-‘) considered apt by translators to express the concept under consideration. The fact that the word “tashrıˆ‘” shares its root with the word “sharıˆ ‘a” does not mean that it connotes anything proper to the Divine Law; the etymological history of the word does not necessarily weigh on the concept it expresses (Dupret, 2007b). Nominalist delusion, that is, the impression that the permanence of a word reflects the permanence of the concept it expressed at some point, represents a third pitfall. The same word can perfectly express different concepts, according to the contexts of its uses. In Arabic, the word “al-huquˆq” can mean “law,” in the expression “kulliyyat al-huquˆq” (law school), as well as “rights,” in the expression of “huquˆq al-insaˆn” (human rights). If the same word can express different concepts, a problem that is a corollary to its polysemy can arise: conceptual confusion (Bennett and Hacker, 2003; see Section 1.3). The word “law” can thus express the technical concept of law as conceived of, practiced, and taught at the law faculty. In this case, it more or less corresponds to its

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academic definition. The same word can also express the ordinary concept of law, more or less vague, which corresponds to the formal set of rules prevailing in a society, under the authority of the state. The confusion arises when one conceptual meaning is used to make sense of another; when the law, according to one of its senses (e.g. the academic), serves to explain the law, understood according to another (e.g. the ordinary). The concept of Islamic law perfectly illustrates this: learned conceptions and ordinary conceptions oppose, mingle, sustain, and contradict each other, generating a confusion which no corrective approach is able to dispel (Dupret, 2007b). The fourth pitfall faced by a conceptual inquiry is the metonymic delusion that takes a particular understanding as the instance of a general paradigm (Passeron and Revel, 2005). In order to think that a particular case is an instance of a general model, one needs, at least implicitly, a former definition of this model and of the elements necessary for a case to belong to it. For instance, one cannot say that the whole legislation and case-law in force in the Kingdom of Belgium constitutes a law without having some sort of preconception of what defines a law. A problem arises when a particular case’s membership of a general model is taken for granted, in a noncritical way, despite the fact that no linguistic, historical, or epistemological evidence uncontroversially supports the idea. One can take the example of customary practices, whose definition as an instance of the concept of law is far from evident. In the taxonomic work of concepts, it is usual to proceed to the establishment of categories and subcategories according to which a concept – German law, for instance – is subordinated to a more general category – the laws of the Roman Germanic family, for instance – itself subordinated to another generic category – law. Those different categories and subcategories – which can be compared to the organization into class, order, family, genus, and species of the natural world – are linked to each other by family bonds: two different species belong to the same genus; two different genera may not belong to the same family but to the same order; etc. The science of comparative law was built on the basis of these kinship distinctions. The whole edifice, however, stands only because of the relevance of the category attributions through which one specific law is made to belong to a larger family. This is how, for instance, the species “Islamic law” is made to belong to the genus “Semitic law,” which does not include the species “Roman law,” which is related to “Semitic law” only at the family level of “law” (Salaymeh, 2016). Such a taxonomic organization, whether explicit or implicit, is problematic in two ways: it is based on clearly constituted and distinct entities; it makes these entities the distinctive, often exclusive, and identity-like features of a given

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group. If we take the example of English law, there is no doubt that today it constitutes a particular entity. However, this is far from being clearly the case for periods former to Blackstone’s (1765) treatise. Heterogeneity was probably more characteristic at that time than the homogeneity of an entity defined in the singular (the law of England). Of course, one can argue that this is a “convenience of language” aiming to designate a set of facts, texts, and practices at a specific time and place. The fact remains that this individualization process assumes the existence of some atemporal unity which a detailed historical examination tends to refute. The membership fallacy completes the delusion of individualization. In academic discourse among others, this means that any type of knowledge – cultural, religious, legal – is presented as belonging to a given social group and its members (Sharrock, 1974). However, this relationship of belonging and property is far from evident. Moreover, it considerably and unnecessarily affects the manner in which one understands the relationship between individuals’ actions and the knowledge these individuals are supposed to have because of their membership to a group. Defining a law as “Mohammedan law” makes this law that which Muslims as Muslims possess and practice. Henceforth, if a person is designated as Muslim, they will be considered, through a mechanism of direct transitivity, as the owner of a knowledge called “Mohammedan law” and will be subject, by virtue of the rights and duties bound to this category, to the provisions of such law. The problem, here, is that, although many contemporary laws identify the collective entities to which they apply, under the secondary rules of recognition (see later in this section) – this is not the case for other corpora, for example, Roman law, Hellenistic law, Jewish law, to which the mechanisms of membership categorization nevertheless apply. In a conceptual inquiry of the type that we are conducting, the question is less that of a universal concept of which every case under study would be an instance, than, on the contrary, the question of a particular case representing the general concept. The particular case thus transforms itself into the paradigmatic case, that is, the case against which other instances are evaluated and judged to conform to the general model. The particular case thus defines the norm; the general concept is elaborated from this case; and one observes the extension of the concept in the conformity to its characteristic features, from its paradigmatic core to its periphery and penumbral fringe. Here, the universal does not preexist the particular; it is the particular that serves as a model for the general concept and its pretense to universality. As such, this mechanism – an induction under the cover of a deduction; a conceptual or theoretical elaboration starting from a particular case – is not problematic. The problem is that it operates under cover. As we have already shown (Buskens and Dupret,

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2014), the concept of law was formulated from the particular case of Western positive legal systems, before being extended to other normativities, such as the sharıˆ ‘a and the fiqh, which, under the name of “Islamic law,” became new instances of the universal concept. This is a taxonomic transformation that can be historically demonstrated. It perfectly translates the contingent character of conceptual production and of the categorical attributions proceeding from it. The fact that the question of law is conceptual does not preclude what we call law from corresponding to a concrete historical experience: law is a contingent concept as expressed by words in use at a particular moment in time (see also Tamanaha, 2000: 4). Outside this moment of history, it is only an issue of homonymy, family resemblance, or relative functional equivalence. Indeed, only in specific circumstances does one speak of law outside its current configuration. First, it is about contemporary institutions whose specific designations (law, droit, qaˆnuˆn, recht) are compensated for by the possibility of translating them into each other, which is all the easier now that the legal technology and lexicon operate at a global scale. Second, one speaks of law to designate legal antecedents that have a genealogical relationship to current laws (Roman law, natural law, customary law). In this case, however, we proceed in an anachronistic way, that is, we ascribe to an ancestor the qualities specific to its descendants for the only reason that the former is the latter’s ancestor. Finally, we also speak of law to designate all sorts of normative configurations to which we ascribe a more or less accentuated family resemblance with our paradigmatic instance (Hindu law, Islamic law, tribal law, the law of the mafia). Here, however, we operate in an analogical manner, based on tighter or looser criteria determining, with a relative degree of accuracy, the membership of a phenomenon to a category, itself only defined implicitly (see also Schauer, 2015). The concept of law is the object of great grammatical confusion. It was conceived of as an abstract, ahistorical, scientific concept, without considering its overloaded meaning, the features it surreptitiously carries along with it, and therefore the fake analogies its use suggests when one describes normative phenomena. Sometimes, it is understood in a sense that runs against its ordinary understanding in contexts in which it is in use, with the consequence that the word taken in its scientific meaning does not serve to designate the same thing as its common sense meaning (including professional and technical common sense). However, the term “law” is a word embedded in historically situated language games. There is nothing problematic in considering that law is a situated, specific concept that found its sociological definition with Max Weber (1978 [1921]), who associated it with the nineteenthcentury emergence of legal-rational bureaucratic states. Of course, the

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concept underwent a major evolution during the last two centuries (Halpe´rin, 2014), but this does not prevent us from speaking of “law” since these changes concerned the specific object designated by this term and not the phenomena with which our academic world decided to associate it in an anachronistic and analogical manner. It is obvious that the concept of law as described by Austin (1954) in his Province of Jurisprudence and the concept of law in use in a New York law firm present major differences. They do, however, share a patronym, that is, they can be compared against a common backdrop: their resemblances and differences constitute a property that is endogenous to their common family and its evolution, that is, the situated concept of law. What is true when traveling from one time to another holds true when journeying from one place to another. Here, too, family resemblances can prove so strong that one speaks of family identity. The family name can change, but not the fact of belonging to it. We see here that the meaning of words is a matter not of etymology but of practical usage. If one uses the Arabic words “dustuˆr,” “qaˆnuˆn,” “huquˆq,” “mudawwana,” and “tashrıˆ ‘,” one will be understood as saying in French “constitution,” “droit,” “droits,” “code,” and “le´gislation,” or “constitution,” “law,” “rights,” “code,” and “legislation” in English. If having to translate from one language to another, one will use these words as equivalents. Something can be lost in the process (tradutore traditore, the translator is a traitor, as the Italian proverb says), but it is wrong to assume a deficiency in intercultural communication, especially when a vocabulary (that of positive law, in this case) was conceived of so as to correspond to the criteria of a foreign language. One should make a distinction between an ontological conception and an ontological analysis of law. In the former, law is taken to be an integral part of the historical and structural ontology of the world (the being of the world and of law); in the latter, it is taken as a phenomenon whose mode of being, for example, linguistic, necessitates an analysis in action and in context (the ways of being of the world and of law). The former is a metaphysical conception; the latter a praxeological one. We suggest renouncing the former and adopting the latter. There is no place for legal historicism, in the sense of law as a necessary component of human societies and of their social structures. Law, in the ordinary and professional senses of the word, is a contingent concept depending on specific and contextual histories. Most of the time, when we speak of law in nonstate, nonglobalized, and noncontemporary societies, we proceed from our categories and not from the categories of the people to whom we ascribe the use of this concept. By so doing, we proceed in an analogical way: it is as if these people conceive of this or that set of norms as we conceive of the law (see the Captain Cook controversy in the Introduction). However, this is

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a dubious analogy, for two main reasons: first, it presents itself not as an analogy but as a scientific description; second, it neither sheds light on new resemblances nor shows connections, as it should for an analogy to be fertile (Wittgenstein, 1963) or a metaphor to be vivid (Ricoeur, 1997). Finally, we should emphasize the necessity of distinguishing among nominal, predicative, and adverbial usages of words expressing a concept. We have already noticed that similar words could express different concepts. This holds especially true with adjectival or adverbial derivations of nouns. The nominal form of a word refers to an essence, an ontology; the predicative form attributes a quality or a property to an object independent of the ontology of the noun; the adverbial form establishes a modality. Thus, if the word “law” expresses a particular concept (e.g. the law of the French Republic), this is not necessarily the case of the predicate “legal” or the adverb “legally” (to say of somebody that she has a “legalistic” turn of mind does not mean that she is practicing the law but that she thinks like a lawyer; “Western legal culture” is an expression referring to a set of knowledge of a legal type, not to a specific law). It is the function of a predicate to ascribe a family resemblance. In the same grammatical manner, we should distinguish singular and plural uses (the law and the laws), as well as complemented, predicated, and isolated uses (the law of retaliation, natural law, and law). These many uses introduce important nuances, or even deeply different meanings. 1.4 CONCLUSION: THE CONTINGENT CONCEPT OF POSITIVISM

When attempting to define what law is, universally and analytically, we commit an anachronism that consists of exhuming from the past elements corresponding to our present-day experience. If we want to find an analytical and universal definition, we should proceed the other way around, which is naturally impossible: we can speak of Babylonian law based on our present-day categories and concept of law, but we cannot deduce our present-day concept of law from the whole set of historical experiences of normativity that were not thought about in the terms of the law of today. In other words, a concept such as that of law cannot be detached from the reality to which it refers. From this point of view, the concept of law is neither analytical nor universal, but historical and contingent. This is why we can say, for example, that law fulfills “a certain ideal of completeness and coherence” (Pirie, 2015: 119), or, on the contrary, that speaking “of ‘the law’ in early Rus, using the definite article in English, would be misleading” (Franklin, 2015: 196). Speaking of dharma (Davis, 2012 and 2015), of sharıˆ‘a (Scheele, 2012; Clarke, 2015), of custom

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(Brand, 2012), of nomos, or of ius (Kantor, 2012) in terms of law is like committing an abusive extrapolation. Saying that the universal concept unduly (because of ethnocentrism) resists its extrapolation (Dresch, 2012b) amounts to confusing the object of critique and the nature of this object. Moreover, one might wonder what added value may be derived from an overinclusive concept of law. Does it have any specific virtue that would make it detrimental or shameful not to assimilate to it something sharing only a family resemblance? If sharıˆ‘a can be defined as “God’s path through life” (Scheele, 2012: 226), why should it be a “law”? It is a categorical mistake to take a specific concept for a generic, analytical, and universal one; it is a logical inversion to blame this concept for its ethnocentric conception and to give it an extensive understanding, erasing by the same token its historicity and contextuality. Not to speak of the nominalist mistake that leads one to consider that because one uses the same terms to speak of “Roman law” and “Islamic law,” both terms mean the same thing (Scheele, 2012: 199), while, in fact, it is precisely the superimposition of the cognitive categories specific to a particular context onto another context that leads to the use of the same term. Law is the product of an ideology that is, indeed, modern, Western and ethnocentric, centralized, positivist, generating a conception that is systemic, homogenous, general, and abstract of norms applying to a society of individuals living within the borders of a State (Davis, 2012: 88). The critique of this ideology and of its categories is both helpful and necessary, but we will not be able to make this critique by acting as if this concept had been kidnapped by the West and stripped of the analytical potential of a universal concept. On the contrary, insisting on the situated, local, historical, and specific character of the notion of law will make it possible to take a fresh view of normativity. Based on a specific historical experience, law was the universalizing process that tended, while unfolding, to overshadow the conditions of its formation, which led people to take the particular object it describes as the paradigm of normativity in general. In other words, the concept of law constitutes the exact representation of the contingent phenomenon of the positivizing of norms that may be observed from the eighteenth century onward. Its universalizing consists of extending the concept beyond the context of its formation, by stripping the initial model’s fundamental properties so as to indistinctly encompass the whole spectrum of normativity – at the risk of emptying it of its discriminant and thus descriptive qualities; or, on the contrary, through positing the initial model as the criterion for the evaluation of any other normative configuration – at the risk this time of committing the sin of ethnocentrism and teleology.

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It is clear that, for instance, in his Concept of Law, Herbert Hart (1961) characterizes the modern systems of law, although he suggests that his analytical framework can be extended to other normative systems. In this manner, he offers a descriptive jurisprudence of modern systems – and it is as such that his work must be considered. However, he does not offer a universal concept, not because his conceptualization would be flawed but because this universal concept does not exist. The concept of law he is talking about is the outcome of a double positivization: the positivization that led to the generalization of the system of positive law on the one hand; and the positivization that corresponded with the scientific conception of law constituted as an object of study (see Chapter 2) on the other. Such is the approach used by Donald Davis (2012: 88), when stating that “the utilitarians and the positivists reign more or less supreme here with their views of law as a rational code or legislation created and enforced by the state and severed from any necessary ethical purpose” and that “this view of law: 1) is hardly two hundred years old, 2) was, until quite recently, centred parochially on Euro-American legal traditions, and 3) is connected in its development to modern imperialism.” For Davis (2012), this finding should lead to the hegemony of positivism being challenged. For our part, we claim that the concept of law, because it is contingent, should not be sought or extended beyond these very constitutive elements. It is not the particular instance of a general model that has become hegemonic, because this instance is not particular to the general model, but is the general model, which, as any general model, has become hegemonic. It is both an anachronism and a categorical mistake to attribute the quality of law to any normative phenomenon. The normative character of cognition (what Heritage, 1984, calls “the morality of cognition”) is something shared by all humans-living-in-society; law is not. There were and there are social groups living without a law, but none that live(d) without norms, for the simple reason that the relation between norms and societies is internal, of a logical order (as heat with fire), while the relationship between law and society is external and wholly contingent.

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2 The Great Divide in Legal Discourse: Toward a Global Historical Ontology of the Concept of Positive Law

Yann Thomas (2002) tells us that a history of law is of interest not for its exposure of the social relationships that the law regulates but for its description of what the law does to those relationships, mediated by categories, rules, and procedures and, consequently, by the transformations that it produces. In this sense, the law represents a very specific manner of systematically organizing reality, producing effects outside the mere legal field. What one could call the “efficacious formalism” of the law distinguishes it from other descriptive undertakings such as science or history. Again, as Thomas (2002) puts it, the logic of the law cannot be reduced to the duality of facts/rules but requires that the law’s norms should reshape the facts that are submitted to legal instances. According to Ian Hacking’s (2002) view of historical ontology, concepts such as that of law have a historicity, but that does not prevent them, in this historical context, from meeting formal criteria and having specific characteristics. The rules of law are not only a discourse about reality; they have a formal logic; they represent a system; they have an efficacy. The question then arises of how, at different times and in different places, the categories of what, for want of a better term, we call law have been formulated so as to grasp reality and act upon it. This task has been undertaken recently by a series of three books on legalism that link history and anthropology (Dresch and Skoda, 2012; Pirie and Scheele, 2014; Dresch and Scheele, 2015; see also Chapter 1). These works explore the various traditions of formalism and the different uses of rules and categories to show both the irreducible contingency of normative phenomena and the fact that they share a family resemblance. If one accepts that there is a remarkable continuity in the human propensity to formalize and categorize the world, it is necessary at the same time to note the no less obvious differences not only in the methods of conceiving and implementing this process of efficacious formalization but also in the finalities associated with it. In this respect one could speak of legal 53 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.003

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revolutions just as one speaks of scientific revolutions, to quote the title of a book by Jean-Louis Halpe´rin (2014). The idea of legal revolution suggests two things: one, which is substantial, is that there have been break points in how the world has been categorized in the legal sense; the other, of a more methodological nature, is that it would no doubt be useful to make good use, in the history of law, of what the philosophy and history of science and technology have continued to accumulate over several decades. While there is no reason to exclude the idea that there have been many legal revolutions, we nevertheless put forward the hypothesis of a specific revolution between the eighteenth and the twentieth centuries that affected the whole world and that – within the timescale proper to each place but also linked by dissemination effects – was characteristic of a Great Divide, sensu Foucault (e.g. Foucault, 1994), between an ancient and a new legal regime. This break point could be referred to as that of “positivization of the law,” referring to the gradual rise in importance of “legal positivism” so well described by English jurist John Austin, who tended to equate the “law properly so called” with the rules emanating from the sovereign command of the state. This is a break point where, under the influence of modern utilitarianism and systemism, and their different tools, including codes and constitutions, the law has tried to completely and systematically organize the world, societies and men, with the virtuous objective of equality but also the less honorable objective of controlling bodies and souls. The modern state, itself a product of these legal constructions (and compared by Hans Kelsen (1945: 189) to a national legal order), has become, due to this Great Divide, a global model consecrated in 1945 by the United Nations, whose 193 member states cover practically the whole world. With the positivization of the law, a whole new discourse formed, a new episteme, fashioning previously unseen categories as much as recycling old ones. The motivations that governed this positivization of the law are manifold and sometimes limited to mimicry and fashion, but today the phenomenon has left practically no part of the world untouched. Something occurred during the “very long nineteenth century” (Raj and Sibum, 2015), between the Seven Years’ War (1756–63) and the First World War (1914–18), which led to a conception of normativity, linked to the nationstate and its legal structuring, imposing itself all over a world in the process of globalization. This conception is directly inherited from the rationality of the Age of Enlightenment and translated into the positivization of the law. Under the influence of all forms of pressure (political, economic, intellectual) exercised by the West over the rest of the world, this conception spread and imposed itself. One can speak of colonization, but it is a colonization relating as much to the external imposition of a model as to its local adoption.

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A pollination, in a way, or, to use Alan Watson’s (1993 [1974]) metaphor, a “transplantation.” For example, the early-nineteenth-century Ottoman Empire was convinced that codified positive law represented an efficient governance technology (Rubin, 2016). The same is true of Meiji era Japan (Souyri, 2016). This dissemination led to a series of normative ruptures with what one can call the “ancient regimes” (normativities more or less remote from the Western model of positivization and more or less close to the ancient laws applied in Europe before the eighteenth century). It is precisely this discontinuity between a “before” and an “after” that we intend to explore. The fact, imported from the West, that people speak of Islamic law, as we speak of French law, is one of these discontinuities, with respect to an “Islamicate” (Salaymeh, 2016) normativity stemming from the rise of Islam that did not have a clear relationship with the state but had rather a doctrinal, urban and sectoral character (Kuran, 2011; see Chapter 1). Considering both the breadth and the speed of positivization of the law sheds new light on the dynamics of this revolution and the response mechanisms of the ancient (legal) regimes. The case of Egypt, far from unique, provides a particularly good example of these changes, drawing attention to comparable, although less pronounced, developments elsewhere. The positivization of the law in Egypt can be said to have been crowned with success, although it also encountered lasting resistance. There was no question of brutally overthrowing the ancient legal regime (see Baldwin, 2017), which itself displayed a high degree of sophistication and was endowed with a revered institution for teaching legal doctrine, the “queen” of Islamic sciences. Not by chance did the positivization of the law initially concern legal fields that were outside the orbit of ancient legal regime scholars. Moreover, these fields were not part of the doctrine sensu stricto (fiqh) but referred to the sovereign domain of the ruler (siyaˆsa; see Fahmy, 2018). The encroachment of positivization into the territory of Islamic legal doctrine was only observed later. At its apogee, a century later, the “new” system, then endowed with a well-organized vocabulary, a newly founded university and a new elite, could thus claim to have become the point of reference of everything legal, of the law in general. The ancient legal regime did not, however, capitulate; resistance can still be seen today. 2.1 A HISTORICAL ONTOLOGY OF THE CONCEPT OF LAW

As emphasized by Michael Stolleis (2016), the history of law, in Germany but also elsewhere, has for a long time sought to establish a universal ontology – “eternal legal forms” – based on an ahistorical conceptual core. It was

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a question of “adding to linguistic denominations an ontological substance and a durability that could not be ascribed to them.” This ontological approach to the concepts was nevertheless demolished, by the “later” Wittgenstein (1963) among others, who underlines the fact that “[t]he meaning of a word is its use in the language” (§43), an aphorism rephrased by Hacking (2002: 17): “a concept is nothing other than a word in its sites.” Following Wittgenstein, Foucault, Davidson, and Hacking, it is appropriate to underline the fact that concepts have a life and a history within which our naming practices, and the things that we name using them, interact. With the concept of “law,” this leads us to examine how the policies, attitudes, and practices relating to naming something as being “law” interact closely with the material and immaterial objects thus named. This question calls for a historicized response once we observe that the appearance of certain objects is itself entirely historical. The term “historical ontology” is applied to the description of the very being of the concept and its history. The very fact that it is historically situated means that any discourse exhibits a grammar of which concepts are made, in certain cases of a categorical nature. Concepts and categories are historical objects that do not exist until they are created. Homosexuality is a case in point: although it is possible that there have always been sexual relations between individuals of the same sex, the specific category “homosexual” only appeared when it was invented (Davidson, 2001; Hacking, 2002: 82). Historically and etymologically, the words used to express the modern concept of law have existed for a long time. They were not, however, used with their current meaning. The eighteenth century was a pivotal period from this point of view, the term “law” being refocused to designate the generic law applicable to a population or a state entity. Between the idea of laws emanating from a sovereign, of customs proper to a community or of fields of legal thought on the one hand, and that of a systemic, hierarchized legislative ensemble applicable to everyone within a given geographical area on the other, there is a radical and often incommensurable gap. Here again, the process of legal transformation in Egypt is instructive, particularly if one examines the linguistic preparation that opened the way to positivization (see also Introduction). The development of a concept of the law suitable for the shift to positive law occupies a central place in this process. The concept did not exist and thus had to be developed. Nineteenth-century texts contain various experiments that governed this development. Various techniques were used to this end. An initial attempt consisted of establishing an equivalence between the word sharıˆ‘a and positive law. This was part of Rifa‘a al-Tahtawi’s plan, which aimed to persuade traditional intellectuals that the “new law” was quite simply

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equivalent to their ancient legal regime and that it was wholly in their interest to adopt it (Parolin, 2018). The equivalence did not work in its substantive form, but the adjectival form shar‘ıˆ is still used today to mean, among other things, conformity with positive law. Another attempt involved modelling the semantic development of the term droit or ius – which had enabled the shift from referring to individual rights (droit subjectif) to referring to a legal system (droit objectif) – on the Arabic term haqq. We also have Tahtawi to thank for this experiment, which had the advantage of being based on a word of illustrious pedigree and imposing stature in the ancient legal regime. Once again, the model did not work in the substantive, except to designate, in the plural, the name of an institution where “the law” is taught (kulliyyat al-huquˆq meaning “faculty of law”). The third attempt consisted of a metonymy based on the word used to identify the typical legislative instrument of political authority, the qaˆnuˆn. This time the word became established. This attests to the fact that the positivization of the law was initially situated on the margin of the ancient legal regime, represented by the siyaˆsa, rather than at its heart. This metonymic usage is found in the book by al-Tahtawi (1834), which makes us think that it was widespread from the first quarter of the nineteenth century; however, more than a century elapsed before it came to designate the generic concept of law. There are many legal terms whose history considerably predates the concept of the law, but the modern meaning of it appeared only with the advent of positivism and its idea of a systematic organization of reality, a legal geometry of the world. New categories of things and people appeared in the wake of this new description of the law, representing new realities (Hacking, 2002: 103). This is an instance of “dynamic nominalism,” to use Hacking’s expression, in which “our spheres of possibility . . . are to some extent made up by our naming and what that entails” (Hacking, 2002: 113).1 Both the discourse of the law and the discourse about the law have been rendered equally possible by the emergence of a conceptual space articulated with a style of reasoning (Davidson, 2001: xii). This is not the place to go into detail about the complex history of the concept and of the discourse of which it forms part. It will suffice to underline the fact that it works like an “operator of meaning” (Tornatore, 2010: 108) relating to emergent nation-states, their identity, their sovereignty, their governance and the control of their populations. From this basis, the concept has naturally evolved, spread and transformed.2 Numerous concepts describe human behavior at the same time as evaluating it, thus mixing facts and values (Hacking, 2002: 69). Taking the example of law, one remarks that it deals with both a historic reality and an ideal of justice. Conceptual analysis of law provides an understanding of how we think about it

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and why we are led to think of it in a certain fashion. This analysis can be performed a` la Foucault, making parallels between snapshots drawn from both sides of the Grand Divide at the moment when one tradition is transformed into another. It can also be carried out synchronistically, with snapshots drawn from competing repertoires and appearing to deal with the same concept. In both cases, the discourses must be analyzed in the circumstances and conditions in which their constitutive statements have acquired their truth value and thus their ability to be formulated. The discourses correspond to the knowledge available at a given time and place, of a community of speakers, and this knowledge determines what can be said at that time and in that place. Different words may express the same concept; the same word may express different concepts. Concepts may therefore be enigmas that can be resolved only by describing their historical ontology. The term “law,” in its many contemporary linguistic variants, refers to a legal system centered on the nation-state, based on a constitution, formulated through codified laws and case-law precedents, administered by the legislative authorities for its adoption and the legal authorities for its application. It has spread throughout the world with that meaning in the wake of European imperialism and has become established in contexts to which it was foreign. In many cases this transplantation was successful, which is not a judgment of the virtue of the transplanted model but an observation of how effectively it was established. When considering the “linguistic revolution” that made possible the positivization of the law, we are suddenly confronted with the status of the ancient legal regime and its terminology. Once again, the Egyptian case is enlightening. Positivization began on the margins of the siyaˆsa but immediately tried to adopt and recycle the prestigious terminology of Islamic doctrine (fiqh). This operation had surprising effects not only on the new law but also on the old. In the context of colonized Arab societies, such as post-1882 Egypt, the concept of law was grafted onto a complex, structured legal system, the fiqh. It was, however, only on contact with the colonizer that the latter began to be thought of in terms of law: “Islamic law.” As Leonard Wood points out, “the coinage ‘Islamic law’ reflects the particular impact of European ideas and institutions on a pre-modern Arabic-Islamic concept that was arguably broader than common Western notions of law, in particular of law as a tool of control employed and managed, above all, by states” (Wood, 2016: 5). In a double movement, the new, transplanted law initially borrowed from the lexicon of the fiqh to equip itself with its own vocabulary. Thus, the term “tashrıˆ ‘,” which means “legislation,” is derived from the term “sharıˆ ‘a,” which refers to the Divine Teaching. Later, this borrowed vocabulary became so standardized that it became necessary to add a religious predicate to it in order to give it

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a quality that was originally consubstantial with it. It is no longer enough to speak of sharıˆ‘a in order to refer to Islamic normativity; it must now be qualified as “Islamic”: sharıˆ‘a islaˆmiyya. The inversion is all the more accentuated when, wishing to speak of “Islamic law,” people turn no longer to the term sharıˆ‘a but to the lexicon of positive law. Islamic law is thus described as qaˆnuˆn islaˆmıˆ (Parolin, 2015: 22). Thus, in current usage, the predicate “Islamic” can serve the purpose of requalifying something that was “traditionally” Islamic before the positivization of the law, such as the fiqh or the sharıˆ ‘a, or of qualifying an element of positive law so that it falls into line with religious normativity. In other words, one either requalifies the fiqh or the sharıˆ‘a as Islamic (as in the expressions al-fiqh al-islaˆmıˆ or al-sharıˆ ‘a al-islaˆmiyya), because it is no longer obvious today that they are only Islamic (in the law faculty, fiqh means “doctrine” and sometimes even “case-law”), or one wishes to qualify as Islamic something that formerly referred to the siyaˆsa but today refers to positive law. The same phenomenon appears in proposals to “Islamize” the law, that is, to give it back its original Islamic authenticity. Thus, people speak of the “Islamic penal code” or the “Islamic constitution” with the stated objective of producing legislation that provides an alternative to the reviled positivist model but in a form that has any sense only with this same positivist model in the background (Dupret, 2000). This movement of Islamization has spread to the particular genre of the general theory of law: behind the desire to formalize the ancient legal regime hides, in reality, the revolutionary impact of a change in paradigm, in the Kunhian sense of the term (Wood, 2016; Kuhn, 1996).3 There is no doubt that norms are consubstantial with life in society. Articulated between themselves, these norms can make a system, and certain of these systems may be qualified as legal. In this case, legal, as underlined by Thomas (2002), refers to a manner of thinking about social relationships, categorizing them and establishing procedures to judge them. But, for all that, can one use the term “law,” in its singular, determinate form (French law, Ottoman law, Chinese law), to account for norms and normative systems without committing an anachronism, without underestimating the completely contingent nature of the experience of modern law, wholly assimilated with the state? If words are misleading and if using contemporary terms to deal with past experiences can be problematical, no doubt it must be admitted that the use of the term “law” to describe the normative systems in force in other contexts than that, very specific, of positivism is injudicious and is more confusing than helpful in the analysis of normative phenomena (see Chapter 1). If legal order corresponds, as Stolleis (2016) affirms, to a plan to organize society, it is clear that it is a historically situated plan that corresponds

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to the conjunction of a political structure (the nation-state), a manner of thinking (positivist rationality), and an ambition (the control of a population). It is not one legal culture among others – that would suppose the existence of a universal concept of law of which all legal cultures were variants – but a particular legal configuration, “the law,” as it has been conceived, in Europe, from the middle of the eighteenth century, and as it has developed, spread across the world and transformed itself, and the meeting with which has led other normative and legal ensembles and systems, so not to think in the same terms, to radically transform themselves, and possibly acculturate, that is, metamorphose into this specific system called “the law.” When using historical ontology, the natural tendency would be to retrace the semantics of the concepts by making past terms into linguistic equivalents of present-day terms, that is, by making instinctive use of one’s own experience of the law, which presupposes a certain “anthropological similarity between men,” enabling them to think of norms in comparable ways (Stolleis, 2016). Since it is impossible to access the legal past other than through the language, we use today’s meanings to try to “reenact” the meaning of yesterday’s words (Collingwood, 2005). In doing this, we distinguish “only that which we believe we already know” (Stolleis, 2016). Misinterpretation and anachronism lie in wait for us at every step (Atias, 1999: 40). A priori, however, it is wrong to think that we understand the legal language of past times and distant places; the words used do not mean the same things, despite certain lexical similarities that are often misleading and have been established through retrospective translation operations and equivalences. Rather than assuming the equivalence of legal expressions, it would be more appropriate to recognize their incongruity while trying to render them capable of expression in our language. Take, for example, the doctrine of maqaˆsid. This is a case of bringing the ancient legal regime up to date, using one of the characteristic methods of legal positivism, on the pretext of using a term from the vocabulary of the fiqh. At the end of the nineteenth century, the ancient legal regime found itself challenged by the new system, which presented itself as all-encompassing, rational, dynamic, and teleological. In contrast with the casuistic approach traditionally attributed to the fiqh, Ben Achour in Tunisia and ‘Abduh in Egypt discovered in the sources of the fiqh references to the “objectives of the sharıˆ ‘a” (maqaˆsid al-sharıˆ‘a). They then undertook to read the rules of the fiqh in accordance with these objectives, thus applying a strongly teleological approach to the latter. Several authors have shown how this new attempt to rehabilitate the doctrine of the maqaˆsid has little in common with the function of the maqaˆsid in the ancient fiqh (Opwis, 2017; Emon, 2018). Whereas, in the ancient doctrine of maqaˆsid, the objectives of the sharıˆ‘a were used by

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jurisconsults to choose among different options that were equally justifiable, under the new doctrine, they correspond to the positivist idea of “objectives of the law” and provide justification for moving away from the rules and developing a teleological system. The maqaˆsid thus find themselves in a way inverted, while conserving the political capital that traditionally accompanied them. This is also true for droit, recht, and ius. Thomas Aquinas opposed the natural law (ius, droit naturel), primary and immutable, to natural laws (lex, lois naturelles), secondary and relative according to the variety of human things (Aquin, 1984–6 [1266–73]: Q. 100, a.3., a.11.; Murphy, 2005). Laws (lex) are positive in the sense that they emanate from a divine or human authority. The law (ius) emerges from the natural order and refers to what is ethically just (Murphy, 2005: 63). This also holds true for Thomas Hobbes (1997 [1681]), who opposes the law of nature and human law. But whereas, for Aquinas, the laws-lois are an instance of the law-droit, Hobbes denies the latter any legal character (Goyard-Fabre, 1975: 119). The positivist separation of the law and morals has begun, finding confirmation with Leibniz (1994: 98–101) for whom a law cannot be moral. The concept of law thus undergoes an inversion: whereas initially it designated the natural immutable law-droit, conceptualized by Aquinas, in opposition to laws-lois, contingent, alone endowed with a legal character, it ends up designating all the contingent lawslois, by opposition to the natural law-droit naturel. As Christian Atias (1999: 23) states, while profoundly regretting the fact, a conceptual cæsura occurred during the Age of Enlightenment: “before the resulting rationalist revolution, the law-droit could not have been what it has become.” This is substantially the position adopted by Reinhart Koselleck (1997: 116) who, taking the example of marriage, shows us that only a misleading meaning of a single word can lead us to consider that it is one and the same concept: Things changed under the influence of the Aufkla¨rung which, in the Prussian Civil Code (Allgemeines Landrecht), gave marriage a new contractual foundation. The financial conditions were relaxed and the individual freedom of the spouses was extended to allow divorce, nevertheless forbidden by theology. It is true that the Code did not abolish the theological and feudal provisions, but – and only the history of concepts is able to show this – it decisively inflected the concept of marriage in the direction of greater freedom and greater autonomy for the partners. Finally, the beginning of the nineteenth century saw the arrival of a completely new concept of marriage. The theological justification was replaced by an anthropological autojustification, the institution of marriage was detached from its legal

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Thus, the concept of marriage changed after its codification, and what is true for the example of the Prussian Civil Code studied by Koselleck4 can easily be extended to, among others, predominantly Muslim countries. 2.2 THE POSITIVISM OF THE SCIENCE OF LAW: A PARADIGMATIC REVOLUTION

It is noteworthy that, contrary to the inflation of the “social inventions of” (Hacking, 1999), few authors argue for an “invention” of the law; quite the opposite: the law is the object of a discourse about its permanence that refers to an atemporal concept. It is nevertheless clear that the history and the philosophy of law are the history and the philosophy of something: the law. Is it possible that they refer to something other than that which is given as their subject? No! What is covered by this thing can no doubt vary from one point of view to another, but it is definitely by being conditional on having the law as their object that they can claim to be the history and the philosophy of the law. Something definitely occurred, around the eighteenth century, which distinguished a before and an after the Great Divide and meant that the word “law” gave birth to a new concept. This new concept dates from the time of its objectification in disciplines such as the philosophy of law, the history of law, the science of law, the science of comparative law, and later the sociology or even the anthropology of law: the law appears as part of the general movement of sciences that develop within the definition of their object.5 The fact that the idea of social “science,” cast in the mold of natural sciences, is a chimera (Winch, 1990) changes nothing. The aspiration to a scientific conception of the law, both in its art and in its study, emerges from the same movement that intends to distance its object in order to be able to philosophize about it. Niklas Luhmann said later that positive law, “originally new phenomenon and revolutionary acquisition” (Clam, 1995: 358), is a product of the modernity that corresponds to a specific use of normativity (Luhmann, 1986: 81). The appearance of positive law and the importance that it has acquired can be explained historically. In Egypt, the shift in meaning is particularly obvious because it required the creation of new centers of knowledge within which other “modern” and “positive” sciences could be taught. Al-Azhar, the venerable institution of knowledge where the ancient legal regime had been taught, was isolated until the mid-twentieth century. When it was nationalized in 1961, a new

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faculty was created which paired the teaching of new and ancient law. Called the Faculty of Sharıˆ ‘a and Law (kulliyyat al-sharıˆ ‘a wa’l-qaˆnuˆn), it embodies the duality of its mission, at the same time bearing witness to the ancient legal regime’s resistance to complete absorption. Law and state proceed in concert. For Kelsen (1945), the concept of state embodies the whole of the legal order. The state is thus a kind of hypostasis comparable with a monotheistic religion: where God epitomizes a system of natural laws, the state epitomizes a legal system (Troper, 1994: 148–9). From this point of view, the state is a collective social object constituted and structured by a normative order from which it cannot be distinguished (Troper, 1994: 150). In other words, the (modern) concept of the law cannot be dissociated from the concept of the state. The two concepts appeared in the same movement, which corresponded to the appearance of new political configurations and ways of thinking about them. And legal positivism, including its variant that considers the legal theory of the state, has best accounted for this. Moreover, this is not a surprise given that, rather than claiming to expound the law as a preexisting natural order, legal positivism means to describe the law as explicitly stated by lawmakers. This descriptive ambition, which is at the very heart of the positivist approach, confirms the argument in favor of a historical ontology of the concept of law. For a long time, the law remained an art and escaped the objective abstraction of the sciences: “having received its object from a little-discussed tradition, it was able to avoid the rational a priori definition and the resulting reduction” (Atias, 1999: 5). What legal positivism describes as “the law” corresponds to a contingent concept expressing the empirical and scientific plan to found a “moral arithmetic” reforming legal thinking, like a “Luther of Jurisprudence” (Bentham, 1838–43, quoted by Hart, 1982: 29). The positivist conception of law understood as a rational normative system responds to the positivist production of law conceived as a sort of social engineering. The scientific description of the architecture and operating methods of legal norms responds to the undertaking of the rationalist creation of a geometrical law. Legal positivism found its first solid articulation with Jeremy Bentham. But we must still distinguish the two levels covered by the notion, the art of law, and the science of law (Troper, 2003). The first level is that of the production of law. In this case, legal positivism corresponds to “the contention that laws are commands of human beings” (Hart, 1983: 57, n.25), distinct from any form of natural or divine law, and together forming a system. The second level is that of the study of law. Here, legal positivism presents itself as the science of a law whose descriptive analysis can be successfully carried out by combining, to various degrees, formalism and realism on the one hand, and internal and external perspectives on the other. Although they must be distinguished, the

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positivism of the law and the positivism of the science of the law have developed together. The development of rational legal engineering by which “the precision and clearness and incontestableness of mathematical calculations are introduced for the first time into the field of morals” (Bentham, 1838–43, quoted by Hart, 1982: 40) has been accompanied by that of an objectifying and descriptive study of that engineering. In this sense, the positivism governing the study of the law is the reflection of the positivism overseeing its production. The fact remains that the two perspectives are separate, as highlighted by Bentham (1838–43, quoted by Hart, 1982: 41) when he distinguishes prescriptive juristic doctrine (censorial jurisprudence) and the descriptive theory of law (expository jurisprudence). There is an echo of Hume’s law, distinguishing “is” and “ought to be”, which resonates through every positivist project. The idea of a prescriptive doctrine led Bentham both to radically criticize the Common Law and its most illustrious representative, Blackstone, demanding “to draw aside that curtain of mystery which fiction and formality have spread so extensively over the Law” (Bentham, 1838–43, quoted by Hart, 1982: 23), and to wish for the development of a law composed of the legislator’s acts, which should be both complete (one could say “totalizing”) and clear, which supposes the reduction of the judge’s role to that of “faithful mouth-piece of the legislator,” to use Montesquieu’s famous expression (1874, 1914). Faithful to his utilitarian philosophy, Bentham thus considers that the law should serve as an instrument for the realization of human happiness (Hart, 1982: 125). The second perspective, that of a descriptive theory of the law, corresponds to the idea of a science of the law in the sense of a science of nature. As underlined by Eric Millard (2011), Bentham’s philosophy does not stem from an a priori concept of the law but considers it to be the result of an expression of will whose vector is language. Just like historical science, “legal science is the child of rationalism”; it is “the wish to persuade by the force of arguments” (Stolleis, 2016). Like all sciences, the science of the law has its origins in, and is constituted on, the definition of its object. The same may be said for legal positivism, which “relates to an object that it gives itself and constructs” (Atias, 1999: 44): positive law. From this objectification of the law ensues the possibility of submitting it to a scientific examination of formalization, explanation, and comparison. This “translation into science” has creative effects. First it creates its own object. It then constitutes new objects, such as “Islamic law” whose existence is clearly the fruit of applying positivist legal cognition to the Islamic normativity issuing from the Islamic tradition. The idea of a science of the law continuously affirmed itself throughout the nineteenth century. Three features characterize this emergence. First feature: the recourse to the term

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“science,” linked as we have said to the positivism of the period. John Austin (1954) speaks of “jurisprudence.” For his part, Hans Kelsen (1967: 80) distinguishes his “pure theory of law” from “the science of traditional law” whose development he places during the nineteenth and twentieth centuries. And after Kelsen, it is widely accepted that the science of the law is a normative science, not inasmuch as it conflates the order of what is and the order of what ought to be but inasmuch as its object is norms (Bobbio, 2015: 148). Second feature: the “objectification” of that to which the science applies, that is, “the law.” Objectification of the law, thus, and, at the same time, the appearance of a discourse which, in the guise of an ancient term, leads to the production of a new entity that one can call, to say the least, “modern law.” The objectification of the law in effect implies giving it a definition claiming to describe what it is but, in fact, performatively creating its own reality. For Austin (1954: 49), the science of the law assigns itself the subject of “positive law,” whereas, for Kelsen (1967: 5), it is a science relating to norms, a norm being “the meaning of an act by which a certain behavior is commanded, permitted, or authorized.” For Troper (1994: 44), the science of the law is a science based “on the model of empirical sciences” relating to “legal discourse and reasoning.” Third feature: the exporting of this concept of “modern law” away from its point of inception, with the perception of the world’s innumerable normativities seen through the frame of reference of the law as it has thus been objectified. Here again, one must distinguish the art and the science of the law. Concerning the art of law, that is, the law understood as legislative and legal production and practice, the positivist model has been exported all over the world. We will return to this phenomenon in the following section. Regarding the science of the law, the comparative discipline has tried to put into perspective different specific instances of the generic concept of positive law. We find the early manifestations of the comparative science of the law with Montesquieu, whose idea of the “spirit of laws” targets the principle common to the variety of types of law configured by the specific features of their natural, political, and social environments (Montesquieu, 1874: L.I, ch.3). It developed into a discipline, thanks to specialist teachings, books, and reviews, throughout the nineteenth century, its apogee being the International Congress of Comparative Law in Paris in 1900. As highlighted by Jean-Louis Halpe´rin (2017: 238), “in order to compare, one needs a minimum of two objects of comparison and a standard (the tertium comparationis) that allows one to consider that these objects, despite their differences, are both species from the same genus,” which requires a minimal definition of the law, most often based on the national law of

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each comparatist. Although “the comparison appears to be facilitated by the structuring of the whole world into states which leads to the identification of national legal orders associated (and even identified, in line with Kelsen’s thinking) with these states” (Halpe´rin, 2017: 238), it is nonetheless extended to normative orders foreign to this structure, whether they preexisted it or whether they remained external to it. Thus, Friedrich Carl von Savigny (quoted in Reimann, 1990) considered that the task of legal experts is to extract the rules and principles proper to their temperament and society from the history of each people. Savigny’s heirs, Georg Friedrich Puchta and Rudolph von Jhering, consider that the casuistry proper to each legal tradition can be organized, hierarchized, and compared so as to identify the primordial rules of living from which subordinate rules are derived (Mattila, 2006: 171). For his part, Edouard Lambert (1903, 1934), who was a great admirer of Jhering, suggested a comparative method that he applied specifically to Islam, founded on six basic principles: Islamic law is endowed with an authentic kernel that must be found and restored; Islamic law is a subset of the set of superior values shared by humanity; Islamic law has its origins in Roman and Jewish law and takes its methods from Greek logic; Islamic law has always been conceived of and practiced in a flexible manner; the task of interpretation (ijtihaˆd) is a form of legal reasoning that aims to respond to the demands of social reform; and the methodology of Islamic law (usuˆl al-fiqh) must be reformed, thus facilitating a return to the faith and authentic practices (see also Wood, 2016: 139–40). Each time, an idea relating to the law is extracted from a model – German or French – and then extended to other countries adapted in such a way that it can flow into the preestablished conceptual mold. However, as Thomas Duve (2007: 3) notes, “there might . . . never have been something like ‘Hindu law.’” One should understand by this that a specific, historically situated operation led to Hindu-inspired norms being devised and potentially systemically articulated in terms of positive law. Just as the science of the law creates its object, the law, comparative science renders commensurable objects that are not necessarily so, thus creating law where there was not necessarily any before. By naming these sets of normative objects, comparative science has rendered them “living and cognizable” (Stolleis, 2016), but in the form of the law and not of the internal logic proper to those sets. This double positivization of the art and science of the law no doubt represented a legal revolution. Articulated on the hypostasized paradigm of the “Code,” abstract, general, simple, and systematic, this revolution led to the modification of the rules constituting the existing legal orders. New regulatory systems appeared, based on alternative ideas of normativity, new concepts, and methods and on the appearance of a meta-reflection about the law (Duve,

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2007). As Jean-Louis Halpe´rin (2014: x) shows, this modification is such that it often leads to a change to a completely new system. Drawing on Herbert Hart (1961), who characterizes the law, by opposition to other normative systems, as a constructed set of norms combining primary rules defining obligations and secondary rules relating to devolution of powers, Halpe´rin (2014: xi) observes the possibility of special moments in law, marking the birth of new legal orders. These may consist of the passage from a preorder, made up only of primary rules, to a legal order, made up of a combination of the two, or of the substitution of one order for another. With the revolution of Codes, the conception of the law became established as a system based – unlike “Roman law,” for example – on a static and dynamic hierarchy of norms (Troper, 1994). In Egypt, positivization of the law preceded that of its science by a good halfcentury. Throughout the nineteenth century, the new law was experimented upon and practiced as an “art,” in parallel with the perpetuation of whole sections of the ancient legal regime, until its production and constitution were regulated. The end of the nineteenth century, however, saw the appearance and the development of a movement theorizing “Islamic law” in Egypt. The particular feature of this movement was to anchor a genuinely modern and positivist conception of the law in the Islamic normative tradition of the fiqh (Wood, 2016: 2). In this transplantation operation, new ideas were grafted onto old, with what Alan Watson (1981) calls a “block effect,” that is, the understanding of substantive ancient rules through a new conceptual framework. The fiqh thus came to be conceived of as a complete corpus of rules, allencompassing and applicable at all times and in every place, in effect like a system of positive law. This involved combining an essentialist conception of Islamic legal authenticity and a positivist conception of the law into which that authenticity could mold itself. The techniques of the legal code and of academic doctrine were considered to be the most appropriate to carrying out this Islamization of the law, at the same time as a new genre appeared, seeking in the fiqh the origin of concepts encountered in the practice of Western law (Wood, 2016: 88). The comparativist ideas of Lyon-based jurist Edouard Lambert, already mentioned, were taken up by his students, at the same time as the substantial rules of Islamic law were reorganized in accordance with the categories of French law. It was thus that the expression “personal status” (al-ahwaˆl al-shakhsiyya),6 which is an notion from Romaninspired civil law used in opposition to that of “real status,” came to impose itself in designating Islamic family law, whereas it is completely foreign to classical Islamic legal doctrine (fiqh). The vocabulary of this new law stabilized and its general theory (al-nazariyya al-‘aˆmma), a genre directly inspired

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by that in vogue in the traditional civil law doctrine, was established. Applied to Islamic legal thinking, this genre had one main consequence: “By reorganizing the categorical and conceptual premises of a field of Islamic legal doctrine, the nazariyah [viz. general theory] model made it easier for comparative scholars to place Islamic and European laws side by side and to compare their premises and rules . . ., [leading] Egyptian scholars to continually revise substantive legal doctrine from the top down, that is, by proceeding from higher-order principles, to middle-level, and finally, to substantive minutiae of legal rules” (Wood, 2016: 231). In this great movement, the fiqh found itself completely reconstructed, in its manner of being written in accordance with new genres; in its concepts and categories borrowed from the civil law model; in its reform-oriented substance; in its methodology and its theorization of sources, also Western; in its sources combining classical Islamic doctrine and European legal traditions; and even in its philosophy, its religious founding principles being to a large extent blurred (Wood, 2016: 251–2). 2.3 THE POSITIVIZATION OF THE LAW: GLOBAL POSITIVE LAW AND ITS LOCAL VARIANTS

In advance of any scientific positivism, the positivization of the law consisted of the global dissemination of a model conceiving the law as an autonomous system of positive rules. The notion of positive law refers to the idea of a law established by an authority and distinct from the principles of justice and morality. In this sense, positive means two things. It is, on the one hand, an empirical, descriptive assertion of the authority that is the source of the law: contrary to custom, positive law finds its source in one form or another of promulgation representing authority. On the other hand, it is a normative assertion about the contents of the norm inasmuch as it is stripped of intrinsic moral necessity: unlike the natural law, the positive law is in itself stripped of moral force. In short, positive law can be distinguished from natural and customary law inasmuch as it is deliberately – and not divinely/naturally or tacitly/conventionally – enacted (Murphy, 2005: 18). Within this meaning, the idea of positive law has its roots in the Greek philosophy of language and the question of whether the language is natural or positive. Finally, with Thomas Aquinas, it acquired a “profoundly legislative” conception (Murphy, 2005: 50) according to which it is the content (regulatory and contingent, as opposed to metaphysical and necessary) and not the source (divine or human) that distinguishes positive law from natural law (Murphy, 2005: 50–7). Although the idea that positive laws are laws imposed by humans is thus practically immemorial, the systemic conception of positive laws forming an

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articulated whole covered by the term law-ius, understood in the singular and generically (droit objectif), is much more recent. As we saw already, this systemic conception of a ius-droit applied rather to natural law, whereas positive laws in the sense of lex-lois referred to contingency. The inversion came with Hobbes for whom words acquired their meaning and laws their validity through the effect of the will of the person who names or legislates (Murphy, 2005: 118). This was when the signs appeared of a concept of positive law developed from the association of two types of rule, primary rules prescribing or proscribing an action and secondary rules accrediting an authority to formulate or apply the primary rules (Hart, 1961:79). The absence of such rules of recognition leads Hart to speak of “primitive law,” that is, cases to which one hesitates to attribute “legal quality” (Hart, 1961: 3). In a slightly different manner, Troper (2003: 194), commenting upon Kelsen, states: “The law and thus the state [are] a specific form of the exercise of political power . . . in the form of norms organized in statically [i.e. the conformity of the contents of inferior norms to that of superior norms] and dynamically [i.e. the formal and procedural conformity of inferior norms to superior norms].” This configuration, which makes the state an expression of the legal system, appeared in the seventeenth and eighteenth centuries in Europe, thence tending to propagate itself throughout the world. We owe the term “codification” to Bentham. This can be understood in parallel with other concepts associated with modernity, such as systematization, simplification, social engineering, and the unity of practice and rationality. In this sense, codification should not be confused with compilation.7 Whereas the objective of the latter was the organized collection of existing laws and customs, the former aimed to introduce new law or a new legal framework. In other words, where compilation sought to conserve an older order, codification was part of “the logics of the modern state, whose elites’ unprecedented appetite for regularization and large-scale social engineering was nourished by and at the same time pushed forward by the revolutionary communication and transportation technologies that rendered the nineteenth century what Kosselleck defined as ‘an epochal threshold’” (Rubin, 2016: 831). Codification corresponded to a new conception of how the law should appear: perfect coherence based on logical classification, systematic organization of provisions, completeness, and general intelligibility, with, as a corollary, the idea of the rule of law organized around the concepts of generality and predictability. Brian Tamanaha (2004: 119–20) speaks of “formal legality”; Judith Shklar (1964: 1) of “legalism.” The centrality of legislation and of the code is particularly obvious in Arabic, where positivization has led to a profound alteration of the semantic

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field of normativity. Of the three previously mentioned attempts to render the new concept of law, the metonymy “qaˆnuˆn” has worked best. Whereas the first occurrences of the term refer to a tax register, by the start of the nineteenth century qaˆnuˆn came to identify the regulations adopted by the rulers – mainly financial, administrative, and penal, that is, the typical domain of the siyaˆsa (Inalcik, EI2). At the end of the nineteenth century, qaˆnuˆn, understood as lex, came to designate the legal code.8 The term qaˆnuˆn thus contains ambiguity, depending on whether it is used to mean law or code. Some authors, such as ‘Abd al-Razzaq al-Sanhuri, have tried to resolve the problem by using the term taqnıˆn to refer to the code, but without success, inasmuch as this word expresses the process of codification rather than its end result (Parolin, 2015). Today “al-qaˆnuˆn al-madanıˆ” is used to speak of the Civil Code. The polysemic nature of the term qaˆnuˆn, covering legislation, code, and law, thus perfectly describes the idea of positivization that we advance. The common feature of modern codes is that they have eliminated the pluralism of sources, played a role in national unification movements, and tried to limit the arbitrary power of judges (Halpe´rin, 2014: 36). In other words, codification aimed to establish a completely new legal order based on human reason and coherence (Rubin, 2016: 833). As highlighted by Max Weber, “the code possesses, or at least gives the impression of possessing, an extraordinary measure of lucidity as well as a precise intelligibility in its provisions” (Weber, 1978: 865), providing the “bourgeoisie” with the predictability necessary to commercial transactions, the ruling elites with the unity and cohesion of their dominions, and the bureaucracy with a determined, demarcated body of rules to apply. It is not surprising, from this point of view, that Weber saw, in the great codes of the nineteenth century, starting with the French Civil Code of 1804, the paradigmatic example of formal rationalization (Weber, 1978: 856–66). In Egypt, the absorption of the ancient legal regime corresponded to a large extent to the wish to unify the system and to eliminate the plurality of its sources. Using an explicitly positivist approach, Sanhuri insists on the importance of including the principles of the Islamic sharıˆ‘a (mabaˆdi’ al-sharıˆ ‘a alislaˆmiyya) among the sources that the judge should use if the law is silent (Art. 1 of the 1948 Civil Code; see Chapter 8) (Bechor, 2007). The emphasis placed on this reference to the Islamic sharıˆ ‘a testifies to the intensity of the debates that surrounded the adoption of the Civil Code (Hill, 1987), but also to the process of positivization, which describes the ancient normativity through the prism of the new legal cognition. “The concept of casting the existing corpus juris into succinct and general formulations, organized along rational classifications and aimed at the

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wholesale design of the law, was an astonishing, mind-boggling, unprecedented idea which equally enchanted and intimidated statesmen and legal scholars worldwide” (Rubin, 2016: 829). The transplantation of the Napoleonic codes to other European countries as well as to Latin America, Africa, and Asia is a “success story” (Halpe´rin, 2014: 47) whose reasons we can seek to understand. Halpe´rin identifies several, some relating to the unifying capacity of the code, others to its flexibility and adaptability, yet others to the symbolic strength of the “talisman of modernity” that it represents (Halpe´rin, 2014: 49). These three characteristics refer to the capacity of the code but also of systematized case-law, to serve as instruments par excellence of social engineering accompanying national projects. The combined action of codification and case commentaries were such vectors of change in the nineteenth century that people spoke of revolution (Halpe´rin, 2014: 70). If legal codes translate one fundamental characteristic of modernity, it is their desire for generalization and even for transcendence of local forms into general ways of doing things. This leads Avi Rubin (2016: 840) to say, with respect to the Ottoman codes, that they manifest a different logic to that which prevailed for the adoption of earlier compilations (qaˆnuˆnnaˆmeh): “the exclusive authority of the law was legislation by the central government, and each of the numbered clauses in every single code was meant to be applied across the imperial territories in the same manner, reflecting a deductive approach to legal situations.” With the instrument of the code, “society,” itself a conceptual novelty, is transformed into an object that can be deliberately acted upon. The reform of Egyptian law is presented as the reformulation of the ancient legal regime in terms of a new technique, codification. A simple modification of form in reality covered a veritable revolution, one of the disruptions that characterize the Great Divide. Nevertheless, this reformulation bears witness to the resistance of the ancient regime, whose abandon pure and simple seemed neither desirable nor feasible. The idea of reformulation expresses great ambiguity, as seen in Sanhuri (1996), who, while insisting on his desire for reform, systematically emphasizes the fact that the undertaking involves continuity rather than rupture. The positivization of the law has become global, inasmuch as today no country any longer escapes from the model of positive law, completely or partially codified, administered by courts formally bound by the principle of legality forming part of a constitutional order, itself judicialized. This globalization of positive law has at the same time been accompanied by a local restatement of the universal model. This should not be seen as a return to the normative pluralism proper to complex premodern methods of organizing justice (Duve, 2007). It is not so much a question of the coexistence of

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multiple normative orders as of development, at the local level, of specific practices articulated on globally inspired rules and institutions. At this level one can observe the appropriations of universal models on the basis of local normative suppositions, which may depend on the political, social, economic, and possibly legal circumstances of each particular place. Thus, if acculturation does take place, it is most often accompanied by “reenculturation,” with the gradual elimination of the historical circumstances of the importation of a foreign legal culture and the allogenic nature of the newly established legal system: “codification no longer requires primary reasons: once it comes to life, the code is sufficient and viable by virtue of its own values” (Varga, 2010: 118). The Muslim example is again enlightening from this point of view. To choose a single phrase to underline how Islamic normativity (sharıˆ ‘a and fiqh) flowed into the mold of positive law, one would speak of the invention of Islamic law (Buskens and Dupret, 2015). This is true of both the rhetoric and the vocabulary. Thus, in the very interpretation of the Quranic verses with a political scope, it is noteworthy that the modern concepts and institutions of positive law are called upon to achieve religious reform in the field of Islamic law (Parolin, 2015: 8; Dupret, 1995, 1999). Zouhair Ghazzal (2015: 11) speaks of the wake of a desire for modernity. In parallel, the new positive legal language was established on the basis of fiqh terminology, in a lexical extension and transposition operation that eliminated “fiqhıˆ ” references once the translation operation was complete (Parolin, 2015). This was also true in terms of states’ legal architecture, where the inclusion of the referentiality of the sharıˆ ‘a may be noted in the constitution. If a reference to the Islamic norm finds itself thus preserved, it is nonetheless subject to the authority of constitutional authorities (Dupret, 1997; Bernard-Maugiron, 2004; Lombardi, 2006). In a comparable manner, “Islamic constitution projects” flourish periodically, aiming to format substantially Islamic norms in formally positive terms (Dupret, 2000). This is also true at the level of legislation where the ideal of the code, admired for its capacity to found a rational, systematic legal system that is a symbol of modernity, could absorb the substantial rules of Islamic doctrine. The relatively recent codification of Islamic penal law in Sudan testifies to the ability to put a doctrinal heritage into a codified form, with the paradoxical ambition of reestablishing the legal “authenticity” of a country by recourse to the applicable modern terminology (Ko¨ndgen, 2018). Finally, it is true in relation to the general theory of the fiqh which, as it is taught today, is “completely integrated into the semiotics of legal positivism” (Parolin, 2015: 3). The process is ancient, as attested by d’Ohsson’s translation of Halabi, who converts the contents of the Multaqaˆ into positive law propositions (Wood, 2016: 102), Gatteschi’s Manuale, a book of concordance that reifies “Islamic law” via comparative

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law and the history of law with the idea of providing ideas, signs, and agendas for legal reform in the colonies (Wood, 2016: 107), and Gillotte’s book, which organizes the rules of Sheikh Khalil’s Mukhtasar into three books (people, property, contracts) in accordance with the categorical model of the Civil Code (Wood, 2016: 110). 2.4 FOR A HISTORICAL AND PRAGMATIC ONTOLOGY OF LAW

As highlighted by Thomas Duve (2007), “the academic institutions as well as the intellectual and analytical traditions of legal historiography originate from the nation-state era.” The same goes for the form that has imposed itself at the global scale: the positive legal system and its institutions. These systems, institutions, and traditions are historically situated and reciprocally constituted. The theory of law describes the positive legal system that is in place, just as the latter infers the positivist conception that aims to theorize the law. In this sense, it may not be very heuristic to seek to describe the normativities anterior to the positive legal system and to the nation-state using the tools proper to their description. “Western” conceptions of the law are so significant today largely because, on the one hand, the “Western” positive legal system has imposed itself globally, but also, on the other hand, because the local normativities that preceded the hegemonic dissemination of this system have been completely rethought through the analytical framework of this positive legal system and the science that has made it its object. Theories of legal pluralism are fashionable. They aim to criticize the hegemonic nature of the positive legal model in two ways: either by challenging the state’s legal monopoly or by challenging the positivist definition of the law. First designed to deal with the coexistence of indigenous rights and transplanted Western law, they have also finished up by designating the variety of normative orders in Western societies themselves. Broadly speaking, one could say that they seek to show that the law is something other than what is claimed by positive legal systems and the sciences thereof. This is not the place to detail the conceptual problems posed by these theories (see, for example Pfersmann, 2010; also Chapter 1), but we can nevertheless underline the fact that they vainly twist the neck of what Joseph Raz calls the “social thesis” of the law, according to which “knowing what is law is a matter of social fact” (Raz, 1979: 38), that is, a question of identification and recognition by its users and practitioners (Tamanaha, 2004). Rather than seeking to see the law where ordinary members of society do not see it, it is no doubt more fruitful to describe what they have in mind and what they do in concrete terms when

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they “orient themselves” toward the object that they call “law.” Consequently, rather than speaking of legal pluralism, it would be more appropriate to speak of plurality of legal practices that designate the many ways in which the said members of society understand their law, which may have been historically transplanted, and adapt it to local conditions (Dupret, 2007a). It is not therefore so much a question of saying that one should seek the law outside the law as of “taking the law seriously” (to paraphrase Dworkin’s 1977 emblematic title Taking Rights Seriously) and analyzing how users and practitioners “live within” their law, deal with its consequential dimension (rather than its genealogical pedigree), investing it with a meaning or diverting it from its meaning, applying and interpreting the provisions, using it as reference point to configure their actions, even if this means dodging or breaking it. In the same way that the normativity of the sharıˆ ‘a manifested itself before it was transformed into Islamic law, one could say that there existed, before the legal Great Divide of the positivist revolution, forms of normativity that aimed to give a legal configuration to social relationships (Thomas, 2002). These normative configurations can perfectly well be studied from the viewpoint of a “pragmatic history” of the phenomena of a legal nature (Cerutti, 2008; see Conclusion). The error would be to confuse the object of these descriptions with what legal sciences today call “the law.” Atias (1999: 40) underlines, with regret, that “Cartesianism has made it impossible to draw on antique and medieval sources, without taking many precautions; misinterpretations and anachronisms lie in wait for us at every step.” Without necessarily going back to Descartes, we have demonstrated the impossibility of the “ahistorical use of concepts” (Davidson, 2001: 41; see Chapter 1). The concept of law is not universal. What we understand by law today is contingent. As Carlo Ginzburg (1997) remarks, until the mid-eighteenth century it described a different reality. Between the mid-eighteenth century and the early twentieth century, a global break point – one can speak of a revolution – definitely occurred, at different speeds, with contagion effects and in local configurations in the conception of norms, in their institutionalization, in their systematization, in their logical articulation, in the teleology of their conception, in their symbiotic association with the state, in their uniformization exclusive of any competition, in their disciplinary ambition, in their relationships with other normative orders (religion, moral, customary), and in their effective capacity to reconfigure the social world.9 By combining conceptual philosophy, general theory of law, history of law, and legal praxeology, we have been able to show that the law, as the word is usually understood, corresponds to a particular historical configuration that it would be vain to extend urbi et orbi. By extending the term to the extreme, we

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push into the background the characteristic properties of the central model and reduce the features common to the different specific cases to simple “family resemblances.” Great confusion results. It disappears as soon as the problem is reformulated in other terms. In a somewhat surprising manner, it is possible to link the names of Wittgenstein and Foucault, as Arnold Davidson (2001: 182 et seq.) did, to show that, in order to understand a concept, one must “understand the style of reasoning of which it is part.” By displacing the Wittgensteinian idea of a “language game” toward a historical viewpoint and thus bringing it closer to the Foucaldian idea of “field of stabilization and usage” of discourses (Foucault, 1969: 136–7), one can bring out the fact that conceptual propositions “only have their full meaning within the limits of a given ‘discourse’, and should not be separated from the general intention of this ‘discourse’” (Hadot, 1962: 342). Davidson (2001: 186) concludes: “Some of the most remarkable moments in the history of thought are precisely those in which an old phrase or word is stabilized in a new way, resulting in the production of a new set of concepts and a new realm of statements.” This was the destiny of the law at the turn of the nineteenth century: thanks to its inclusion in the positivist dynamic, in its many meanings, it has become something new, specific, different, only linked to other legal experiences by a vague family resemblance.

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3 Legal Praxeology: Into Perspective and into Practice

In the first two chapters, we advocated an approach to the law that takes it as a contingent concept whose historical ontology shows that, under the shape of positive law, it has specific features exhibited in its practice. In this chapter, we address the manner in which to deal with such legal practices: legal praxeology. Legal praxeology is this perspective that claims to consider the law through the practices that take the same law as their point of reference. It occupies the space that exists between formalism, which, to put it bluntly, views judges as prisoners of the rules that statutes compel them to apply, and sociologism, which, to put it equally bluntly, views them as being under the influence of their social status, their moods, and their total discretion. Legal praxeology is the approach that takes law seriously in all its formal and sociological depth. This means that it considers absurd the pretention of dealing with law while ignoring what its practitioners take as essential to their activities, that is, the rules; but it finds it equally indispensable to deal with these rules and the activities that refer to them through their modes of accomplishment. In sum, legal praxeology calls for the socioanthropological analysis of the practice of “making the law,” “acting as a lawyer,” and “doing being legal” (Garfinkel, 1967). As its method is mainly ethnographic and as it does not pretend to model legal reasoning, legal praxeology does not aspire to theorizing, if the latter is understood as the search for abstract generalization in which to subsume the infinite variety of cases. It does not mean that praxeological research is not theoretically loaded, far from it; it implies, however, accepting the refusal to eliminate from the particular cases on which one focuses their irreducible contingency and contextuality. Particular cases are studied ethnographically in order to elicit the mechanisms that are specific to how they unfold, including what is linked to the law as followed by both its professional and lay practitioners. A particular case is always considered from the inside, from an 76 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.004

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internal perspective, emic if one so wishes: what makes a case a case; what are the elements the parties understand as constitutive of the case; what legal rules emerge as relevant; what procedures emerge as constraining; what are the relevant and superfluous details; what is the justification for referring to a precedent, to a rule, or to this or that legal characterization? Every time, legal praxeology’s descriptive attention is concerned with the methods proper to the people concerned, for example, judges. One could speak of an interest in “legal ethnomethods” (Dupret et al., 2015), which is a direct allusion to the specific way of practicing social sciences pioneered by Harold Garfinkel (1967). 3.1 INTO PERSPECTIVE: SOME SEMINAL STUDIES

Legal praxeology corresponds to the academic tradition that aims to conduct the ethnography of law in context and in action. It deals with law in relation to the particularities of its unfolding and not as a resource for explaining broader schemes. In that sense, it respecifies the object of sociolegal studies, by moving from an interest in what law is in the abstract to an interest in what law does in practice, and how it does it. This manner of considering legal practices as a legitimate object for research, and not as a pretext for critical study, remains marginal, although it has both ancient and prestigious credentials. Aaron Cicourel’s 1968 study of juvenile justice is one of the first praxeological analyses of legal reasoning. It shows a marked interest in the observation and description of the practices of a group of professionals responsible for implementing and managing the law relating to juveniles. This technique allows Cicourel to show how police officers take the decision to arrest, charge, and incarcerate juveniles based on police records, according to organizational constraints, and within a limited array of possible solutions. However, the really seminal praxeological study is Sudnow’s (1965) “Normal Crimes.” Looking at legal characterization, Sudnow shows how legal categories, far from being accessible from “law in the books” (statute law, case law, jurisprudence, textbooks), must be understood from the work of categorization itself. His study is based on continuous observation, over several months, of lawyers at work, especially in plea bargaining negotiations. He details the methods used to negotiate on the basis of what is understood as the “normal crime.” Formal legal categories are, according to Sudnow (1987: 158), “the basic conceptual equipment with which such people as judges, lawyers, policemen, and probation workers organize their everyday activities.” This means that, once the categories are identified, it is still necessary to examine how professionals, when trying to determine to which provision a factual case can be

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reduced, must decide in respect of “its membership in a class of events, the features of which cannot be described by the penal code” (Sudnow, 1987: 162). This is precisely what Sudnow labels “normal crimes,” “normal” here meaning the ways in which people refer certain persons and events to typical categories. Along the same lines, we may cite the many studies published in the collection coedited by Travers and Manzo (1997). There is, for instance, an article by Sacks (1997 [1962]) about lawyers’ work, describing how, during their daily activity, jurists are engaged in “managing routine.” Michael Lynch was also much interested in law. He wrote an article (Lynch, 1997 [1979]) dealing with hearings before a Canadian court, in which he examined the judge’s visible, public work, ranging from the management of procedural constraints to the moral denunciation of the accused at the moment of sentencing. An article by Albert Meehan (1997 [1988]) examines the methods by which the police produce interrogation reports and other documents in the policing of juveniles. Among these documents, he focuses particular attention on the running record, which includes all the knowledge collected about an individual, as well as past places and events, and which is used in sentencing. Douglas Maynard and John Manzo (1997 [1993]) also produced a detailed article about how juries reach decisions, in which they observe that the result precedes the decision. They show that justice, far from being only an abstract notion used by philosophers and, to a certain extent, sociologists, is something that exists empirically, that is, in the words and deeds of ordinary society. One can also cite Luisa Zappulli’s (2001) study of aspiring magistrates in Italy in which she reveals how institutional constraints, technical expertise, and ordinary knowledge mix together, as young magistrates are called upon to develop their ability to master their new professional environment quickly, in order to start their career in the most advantageous manner. Law at Work: Studies in Legal Ethnomethods (Dupret et al., 2015) is another important collection that shows what sets ethnomethodological studies of law apart from more familiar approaches in the sociology of law. The latter have a propensity to set up an opposition between law on the books and law in action, to take for granted the production of legal practices and to prefer general interpretations that shed no light on the description of situated legal practices. In contrast, ethnomethodological studies of law and justice allow for a re-specification of the subject of research. In that perspective, the point is no longer to identify the shortcomings of legal practices in comparison with an ideal model or a formal rule, but rather to describe the modes of production and reproduction, the intelligibility, understanding, structuring, and public manifestation of the structured nature of law and the various activities related

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to it. The volume articulates four major issues. First, while it is well known to practicing lawyers and legal scholars that “law on the books” provides a necessary but not sufficient basis for enacting procedures and rendering judgments in particular cases, several contributors explore how participants in legal work orient to legal relevancies while contending with the contingencies of the particular case. Second, the volume investigates the transactions that take place between professionals who are well versed in the procedures and technicalities, and laypersons who may never have taken part in the formal legal procedures in which they are now participating, including “explicative transactions” that both accomplish legal work and instruct novices on how to take part in such work. Third, the collection examines how the moment-tomoment enactment of testimony in legal hearings uses intertextual and multimedia resources to link itself in time and space to actions by nonpresent parties. Finally, the book explores the uses of ordinary language to make moral claims about persons and their actions in legal settings. Membership category analysis provides an especially suitable resource for studies of law at work, as it highlights the way in which vernacular characterizations of persons, actions, and environments are presented and contested in relation to formal legal categories. Three books specifically deal with legal work from an ethnomethodological point of view. In The Reality of Law (1997), Max Travers examines the activity of a firm specializing in criminal law. After providing a phenomenological description of the firm, Travers underlines how its different nature, which makes this what he calls a “firm of ‘radical’ lawyers,” is made visible by those who work there through their way of speaking about their daily activities (Travers, 1997, ch. 3). In that sense, people are not simply members of a group; they can also be ascribed to category membership, which always implies a degree of interpretation that is open to rectification. Furthermore, this membership is also translated by the promotion of a particular type of opinion on professional practice, and a form of self-presentation that highlights an individual’s professionalism in carrying out that practice. The author also shows how law and procedure emerge first and foremost from a practical understanding that depends on the type of client, commonsense skills, and knowledge acquired through experience. This is particularly visible when we observe in detail how a lawyer persuades his client to plead guilty. The ethnomethodological perspective adopted by Travers (1997) aims to give weight to people’s daily understanding of the social context, developed on the basis of shared methods, rather than adopting an ironical, overhanging point of view. Travers also looks at the work that goes into preparing a trial for the Crown Court and stresses how important simple routine is.

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Thomas Scheffer’s (2010) Adversarial Case-Making is another example of this praxeological tradition. Analyzing cross-examination in the British Crown Court mainly through the ethnography of a parricide case, Scheffer examines the procedural modalities of indirect moralizing. He uses this term to designate the indirect expectations of moral justification faced by the accused, which implies the accused considering the moralizing person’s (either the victim or the magistrate) moral expectations. He focuses on the ways in which such moralizing is procedurally organized. He also examines the role of materialities in a praxeological manner: he scrutinizes the role played by the arrangement of the courtrooms, the files, and the narratives during the trial. He concludes that hearings, through their cumulative, anticipated, and condensed character, cannot derive their shape from their direct interactions only: the three materialities add a sense of stability, historicity, and expectation; they fix past events, specify possible future events and ordinary hopes. However, rather than being structures determining courses of action, they constitute, at the time of their situated use, imprecise, incomplete, and blurred components. Using a perspective that is both materialist and constructivist, Scheffer (2010) shows the place of these devices in the framing and the production of the hearings. In Adjudication in Action, Baudouin Dupret (2011) addresses the law in terms of the moral dimension of its practice and how it deals with moral issues. His aim is to observe, in context, the practical activities of a whole variety of people involved in judicial proceedings. More particularly, he undertakes to study and describe, in an empirically detailed and documented manner, how the necessarily moral dimension of judicial activities is produced and manifested, and how judicial proceedings affect the treatment of moral cases. The context of this study is specific: cases that were adjudicated at the end of the twentieth century in Egyptian Public Prosecution and courts. However, its ambition is much wider than the presentation of a particular legal system; it proposes an ethnography of law in context and in action, that is, a praxeology of law. It proceeds in four steps. First, starting from its classical treatment, it bases the praxeological approach on the relationships between law and morality by introducing the idea of morally constrained ordinary and judicial cognition. Second, it addresses judicial activities and the moral organization of their practices, emphasizing the importance of their context and two of their features: procedural constraint and legal relevance. Third, it describes the practical grammar of some major legal epistemic themes, such as the person, causation, and intention. Fourth, it analyses in detail a case in which several men were accused of debauchery, detailing the language and the categorization devices used to deal with the case (see also Chapter 9).

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3.2 INTO PERSPECTIVE: ETHNOGRAPHIC RE-SPECIFICATION

The choice of ethnography, by definition empirical and descriptive, and of a practice-based and thus praxeological approach, is probably the only way to allow the law to keep its phenomenological thickness. By dint of looking at law through the prism of culture, history, social structure, or power games, classical legal sociology and anthropology have always left us facing a “missing what” (Garfinkel, 1986): legal practice. By the same token, we have lost the phenomenon of law in itself. The analysis is endowed with concepts, categories, and theories; however, this fails to consider law as a fully legitimate object of study. Legal praxeology seeks to escape the pitfalls of decontextualization, with all that this means in terms of mentalist notions like “latent functions,” “unconscious processes,” or “incorporation”; it chooses to describe the modes of production, reproduction, intelligibility, structuration, and publicizing of law and the activities that refer to it. Perhaps we do lose the critical and glorious delusion of unveiling (although critique, because of its wholly circular character, quickly falters) as well as the bewitching vertigo of metaphysical considerations; but the gain in terms of descriptive and analytical clarity is obvious. It is also about seeing how activities are organized and how people orient themselves in respect of the many elements perceived as structuring these activities. As Alain Coulon (1994: 648) puts it, the hypothesis of internalized norms, which provoke automatic, spontaneous behaviors, does not explain how actors perceive and interpret the world, recognize that which is familiar and construct that which is acceptable; nor does it explain how rules concretely govern interactions. As such, social facts impose themselves on individuals not as objective realities but as practical achievements. Between a rule, an instruction, or a social norm, and its implementation by individuals, a broad field of contingency opens up, which is engendered by practice and which is never the pure application or simple imitation of preestablished models. If we are to take law seriously, it is not the law of rules maintained in their formal abstraction, nor the law of principles independent of their context of use, but, rather, the law as practiced by legal actors engaged on a daily basis in performing law; in other words, it is law made up of the practice of legal provisions and their principles of interpretation. The praxeological re-specification of law tells us first of all that social sciences lack the means to define law outside what people say and do when they orient themselves toward something they identify as law. In other words, as Brian Tamanaha (2000: 314) reminds us, what law is is determined by people’s common uses, in the social field, and not in advance by the

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theoretician or the social scientist. The merit of this nonessentialist approach resides in the fact that it is totally devoid of presuppositions about law (beyond the negative presupposition that law has no essence). It leaves us with the task of producing an ethnography that ascribes to the many forms of expression and usage of the concept of law the descriptive and empirically documented forms that fit it. 3.3 INTO PERSPECTIVE: WHAT RELATIONSHIPS WITH THE SCIENCES OF LAW?

We might wonder about legal praxeology’s relationships with the other “sciences” of law: legal history, legal philosophy, jurisprudence and legal theory, legal sociology and anthropology, comparative law. This question should not be confused with that of interdisciplinarity. It is about what we called “respecification.” The praxeological perspective does not claim to correct mistakes affecting other ways of dealing with the law. It does not pretend to be able to assess the veracity of theoretical perspectives. It does not present itself as an alternative to another theory; nor has it any specifically theoretical or theorizing ambition. The re-specification that it promotes actually corresponds to an internalist and thus perspectivist approach, that is, the description of how to make sense of something from the perspective of those who practice it. It involves taking an interest in the sciences of law because, on the one hand, these sciences in themselves constitute an academic, discursive practice relating to law, and, on the other hand, they are an integral part of legal practitioners’ and consumers’ perspective of law. Based on the works of two major jurists, Hans Kelsen and Norberto Bobbio, Michel Troper (1994: 40) allocates legal theoreticians the task of ordering a language that is external to them, that of lawmakers and case-makers, in which they formulate their prescriptions and justify their decisions. In that sense, the science of law is a kind of “metalanguage” taking law as its “language-object.” It has the virtue of analytically exposing the components of the legal system (cf. Hacker, 1977: 6). Praxeological re-specification shares the ambition of closely scrutinizing legislators’ and judges’ language, although it cannot claim to be externalist: on the one hand, there is no exogenous ordering of the domain of law but only an endogenous order to recognize and describe; on the other, this endogenous order cannot be understood from any overhanging position but only from its producers’ standpoint. It is useless to look for organizing principles outside the law, for it is the legal system itself, that is, its lay and professional practitioners, that produces the concepts that are necessary to its functioning (Troper, 1994: 22). It is necessary to adopt an

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internal point of view that consists of “describing the criteria [that authorities which are acting in the system and must identify applicable norms] use,” “without renouncing . . . the distinction between science and law” (Troper, 1994: 32). Two attitudes can be adopted in this respect. The first consists of rejecting this distinction, for the praxeological re-specification denies the externalist perspective that it entails. The second, which is ours, is based on Garfinkel’s (1967) aphorism according to which the world of science is organized in order to make remarkable things that are seen but unnoticed in the ordinary world. The concepts that are necessary to the functioning of law are ordinary tools in the everyday world of lay and professional law practitioners. In that sense, the concepts are widely known, practiced, and even made routine by those practitioners. The example of causation can provide better understanding of the fruitful relationships that legal theory, jurisprudence, and praxeology can build. Whereas classical philosophy constructed a model aimed at the natural sciences, legal theoreticians like Herbert Hart and Tony Honore´ (1985) attempted to adopt a realist approach, proceeding in three steps: identification of the ways in which classical legal philosophy failed to account for causation in the law; delineation of the paths taken by causation in common sense; and description of the connections between ordinary and legal causal reasoning. They show that the classical philosophical approach to addressing this issue misses the specific and practical aspects that lawyers face in their professional work. They propose the selection of “standard examples” of the ways that people constantly use causal expressions in ordinary life, examples that make up the core of relatively well-established common usage (Hart and Honore´, 1985: 27). They also stress the resemblance between common sense and legal rationalities. In both, for instance, the establishment of a causal link is central to attributing responsibility. The analytical approach developed by Hart and Honore´ avoids assimilating causation with theoretical, normative propositions and enables it to be better articulated with practical modes of reasoning. It also has its limits due, first, to the kind of material on which this type of analysis is grounded – legal institutions’ “polished” texts – and, second, to the epistemology sustaining these authors’ treatment of such material. This is precisely what the praxeological perspective re-specifies. It sets out to examine causal reasoning, not in abstract, but as a practice in itself. In ordinary reasoning, causation is a public phenomenon (Watson, 1997 [1983]: 43) aiming mostly at establishing a relationship and the nature of this relationship between an “action” and its “author.” This is why the description of both is so important. Because of its consequences on the nature of the causality thus established, the choice of

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a descriptor has a direct impact on the attribution of moral or legal responsibility to the author of the action. Another major example is Herbert Hart’s (1961) seminal Concept of Law. Starting with an acute critique of the old positivist theory of law as the command originating from an unlimited sovereign with unlimited power, Hart proposes a conception of a legal system as the union of a set of primary rules (prescriptive and proscriptive rules) and secondary rules (of recognition, change, and habilitation), thus articulating substantive rules and the authority to formulate and implement them. Accordingly, Hart suggests that there are two perspectives of law. The first is external. It leads to an assessment of the extent to which law is effective. One could call it the sociological perspective. The other is internal. It leads to a description of how people consider their legal obligations and use them as a model of behavior (Hart, 1961: 88). One might call this a “praxeological perspective.” The latter is the only one to show “the way in which the rules function as rules in the lives of those who normally are the majority of society” (Hart, 1961: 90). From this internal point of view, it is possible to see how actors concretely articulate substantive rules and rules of habilitation, and how they orient to these rules as if this “legal system” constituted a model justifying their action in society. Legal praxeology’s domain is precisely to describe the practical modalities of such “orientation.” It examines, in context and in action, in the concrete aspects of every particular case, the ways that rules are dealt with, understood, and used in practical legal reasoning. For Hart (1961: 123), rules have an “open texture,” that is, a margin of uncertainty as to their interpretation, between their “core of certainty” and their “penumbra of doubt.” Re-specifying this claim in a praxeological way, it means that, by observing how people deal with rules, one can show how they ascribe to them a meaning that is more or less obvious and fixed, and therefore how they exploit the margins of uncertainty in order to promote some interpretations instead of others (see Dupret et al., 2020; also Introduction, Chapter 2, and Chapter 9). Another domain in which legal praxeology can take inspiration from jurisprudence and legal theory is that of rules and the relationships that lay and professional law practitioners have with them. This is the object of Frederick Schauer’s (1991) Playing by the Rules. He provides an analytical treatment of legal rules that is also embedded in the Common Law tradition, thus explaining his focus on decision-making, both legislative and judicial. Schauer starts by defining prescriptive rules (to be distinguished from descriptive rules, which aim at mathematical or empirical regularity) as those that are endowed with a normative semantic content. They can serve as instructions (indicating the way to proceed) or be obligatory (they give reasons to act because of their

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existence as rules). They can be constitutive (creating the possibility of taking a certain type of action) or regulatory (governing a preexisting behavior). Rules and legal systems relate to each other, but their relationships are contingent. The basis that is common to descriptive and prescriptive rules is that they do not concern particular cases: “rules speak to types” (Schauer, 1991: 18). In other words, the particular cases we perceive are instances of broader categories, without the fact that a particular case belongs to a broader category ever being wholly determined. Particular cases constitute the hypothesis of the rule, what could be called its factual predicate: if something happens, it is then likely that the rule will apply. To be operational, the factual predicate must be vested with a scope wider than the single case, thus making it inclusive. It can be overinclusive or underinclusive (Schauer, 1991: 32). This over- or underinclusiveness induces a gap between the rule and its justification. This gap is what Schauer calls the “entrenchment” of the rule, that is, its independence of its factual predicate and its justification. The generalization proper to rules is based on similarities and eliminates differences between facts. It projects rules in time and space beyond particular cases, steering understanding in certain directions and away from others (Schauer, 1991: 44). To put it differently, the rule continues to apply even in cases in which its original justification is not identifiable. The rule is self-sufficient, so to speak: it is self-justified. Such is the concept of rule on which judges base their decisions: a ruling based on a rule is a ruling in which the decision-maker treats the general rule as entrenched from its particular justifications and considers the mere fact of its existence as a reason to act, even in borderline cases (Schauer, 1991: 51). One could say that the words formulating the rule come to signify something independent of the context of their initial formulation: they are endowed with a structure of intelligibility that has become independent of its original author and depends in a contingent, though not arbitrary, way on its reader. The generalizing formulation of the rule can indeed acquire a meaning different from that which the literalist implementation of its justification would allow. This is where we find that which gives the rule its character of rule (Schauer, 1991: 61). However, a rule can also exist without any explicit formulation. The authority of the rule is thus the fact that one can say retrospectively that one acted in this or that way because of the existence of this rule. A decision can be particular, when it focuses on the sole particular case. A rule-based decision, however, is a decision that, on the contrary, excludes some specific features of the case to concentrate on its generic properties, something that makes the rule open to an implementation conceived of as independent of its justification (Schauer, 1991: 111). Because of the rule’s entrenchment and autonomy, such a decision entails the inclusion of situations that do not belong to the

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background justifications of the rule on which it is grounded (Schauer, 1991: 135). The force of a rule-based decision proceeds not from its being just but from its capacity to institute reliance, guarantee predictability, and provide certainty (see Schauer, 1991, 2015). Such is the core of legal positivism. Rules succeed in doing this through the allocation of power, both temporally, by entrenching the status quo, and horizontally, by allocating power to some agents and away from others, or by privileging the community over the individual (Schauer, 1991: 159). In any case, a system strongly based on rules is a system that privileges temporal coherence and conservatism (Schauer, 1991: 172). It can be observed in the rule of precedent, which uses the past for present purposes (Schauer, 1991: 182). Precedents are of particular interest since they transform a factual and thus particular instance (the first case) into a legal and thus general rule (the first case having become constraining with respect to the second, which is itself particular) (Schauer, 1991: 185; see Dupret and Ferrie´, 2015; also Chapter 7). This shows that the status of general or particular can depend on the position in a sequence. It is also important not to exaggerate the constraining character of rules, which is more presumptive than absolute (Schauer, 1991: 196). At the same time, it must be recognized that, most of the time, rules “apply,” that is, they operate in a nonintrusive manner, without inducing doubt in their recipients, something that would require heavy interpretive work (Schauer, 1991: 207). Most rules have a core of meaning that generates no problems of interpretation and a penumbral zone, to quote Hart, that requires a true interpretation, creative of new meanings. This is precisely what makes rules interesting: they free their recipients from having to consider all the elements that are supposed to have been considered, as in the expression “all things considered”; in other words, they “allow for only a glimpse rather than a careful scrutiny” (Schauer, 1991: 230).1 3.4 INTO PRACTICE: CONTEXT, LEGAL RELEVANCE, PROCEDURAL CORRECTNESS

Instead of talking about praxeology – as was done in a typically French manner in L’ethnome´thodologie: Une sociologie radicale (Ethnomethodology: A Radical Sociology, 2001) – we want to illustrate what can be done with law when working in a praxeological way. In this and the following sections of this chapter, we show that praxeology is conducted in and through practice, not by any discourse about it. This will be achieved by studying a case whose perspicuous exploration is helped by a praxeological approach.

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Our location is Indonesia. However, Indonesia is not the context of our case but provides a background to its understanding. To make sense of what takes place within the courts whose rulings we study, it is necessary to understand some linguistic, anthropological, sociological, and religious features. For instance, it is interesting to have some information about Indonesian population (250 million in 2014), the percentage of Muslims (87.18 percent in 2010), the 1945 Constitution (that establishes Islam as the state religion), the hierarchy of norms (from the Constitution at the top to departmental regulations at the bottom), the hierarchy of jurisdictions (from the Supreme Court at the top to the Courts of First Instance at the bottom), and data regarding family, marriage, and divorce (from 377,250 divorces against 2,207,364 registered marriages in 2010, i.e. around 17 percent, to 489,078 divorces against 2,218,130 registered marriages in 2013, i.e. around 22 percent, which reflects a constantly increasing divorce rate, although the increase is slower than in Europe). This is also the case with legislation regulating various aspects of the law (for instance, Marriage Law N˚ 1/1974, Religious Courts Laws N˚ 7/1989, N˚ 3/2006, and 50/2009, and the Compilation of Islamic Law promulgated by Presidential Decree N˚1/ 1991). This knowledge can prove useful to understanding what can be seen when applying ethnography to family law in Jakarta courts. However, it does not form what we call the context of the cases we subject to ethnography, as the context consists not of the researcher’s panoptical viewpoint on one question but of the perspectival viewpoint of the people engaged in a specific course of action. Indeed, it is not up to the analyst to determine the variables that have to be taken into consideration in the assessment of the context; the relevant context comes out of the events themselves, of that to which participants point, of what they do and say. In that sense, our conception corresponds to that of Emmanuel Schegloff (1987), for whom context is limited to what is “publicly relevant” and “procedurally consequential.” This means that, when examining any phenomenon, two questions must be raised to know whether something belongs to the context in which that phenomenon is embedded; on the one hand, whether the categories used to describe the phenomenon are categories relevant to the participants; on the other, whether participants orient themselves to these categories in the course of their actions (Schegloff, 1987; Dupret and Ferrie´, 2010). By way of illustration, we examine a series of divorce cases followed by Ayang Utriza Yakin during a five-month period of fieldwork in Jakarta between February and June 2016. Officially, they present themselves as divorce trials; in reality, they are justified by one spouse’s lack of love for the other. Rulings motivate them by reference to Indonesian rules regarding

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divorce, which do not acknowledge “divorce for lack of love.” Let us consider a testimony in a divorce trial initiated by the wife (cerai gugat). We know from the protagonists’ many statements that this is the case of a marriage contracted in September 2015, which turned bad as early as December of the same year. It appears that the wife refused to live at her husband’s house because of his low income, that the husband threatened to take a second wife, that he accused his wife of having been unfaithful to him, and that he was asking for the return of the marital gift. Technically, this is a case that falls under Art. 19(f) of Government Decree N˚ 9/1975 and Art. 116(f) of the Compilation of Islamic Law of 1991: “Divorce can take place when husband and wife quarrel, when quarrels are continuous, and when any hope of living in harmony under the same roof seems impossible.” During the fourth hearing of the trial, the following interactions were observed: Judge: Witness: J: W: J: T: J: W:

J: W: J: W: J: W: J: W: J:

. . . They have been separated since December 2015. Yes. They parted because they quarreled? Yes. Did you hear their quarrels? What was their quarrel? They didn’t talk to each other. There was no compatibility between them. Why do they argue and why do they quarrel? Actually, the petitioner was not disposed to quit the parental home to live with her husband who’s a teacher in Depok. She doesn’t want to move there. OK. So, the husband asks his wife to live with him but she doesn’t want to. Is there any other reason besides this? What else? Oh yes, the husband wants to marry again. Oh, he wants to have a polygamous marriage and she doesn’t agree. Yes, a polygamous marriage. Another reason? The husband has never contributed financially to the maintenance of his wife since the beginning of the marriage. Never? Since the beginning of the marriage? Oh, OK. No, never. OK. Thus, from the beginning, there were already incompatibilities, disagreements, arguments between them, until their separation . . ..

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That’s all? Are there other reasons? That’s all, I think.

In this testimony, both the judge and the witness point several times to the relevant context: a judicial proceeding, a divorce trial, admissible causes of divorce such as the refusal to cohabit, the perspective of a polygamous marriage, the husband’s failure to pay maintenance to his wife, quarrels, incompatibilities, etc. All these elements are publicly relevant, inasmuch as they provide the protagonists with the basis for establishing the intelligibility of the interactions; they are also procedurally consequential, since, based on the judge’s question (which is articulated around the possible characterization of facts), the witness’s answers follow (substantiating or otherwise the potential characterizations), while the judge’s subsequent questions and the answers to them are conditional upon those initial witness answers. All this reveals that, from a praxeological perspective, context consists of all the constraints exerted, from the protagonists’ viewpoint and in a sequential manner, on the accomplishment of their practical activities (Dupret and Ferrie´, 2010). In the praxeological analysis of judicial reasoning in action, the question of the legal characterization of facts is particularly important. Characterization is, in judicial settings, this process consisting of relating the facts of a specific case to a legal rule defining the solution to be given to the litigation originating in these very facts. If one speaks of the specific case, it is precisely because the process of characterization subsumes one specific case into a generic category of which it is one instance. In legal theory, characterization is often presented as a syllogism whose major premise is the legal rule, with the minor premise the facts of the specific case, and the conclusion the application to the facts of the legal consequences established by the rule. In practice, characterization never proceeds in this formal and, so to speak, automatic manner (Lenoble and Ost, 1980). Only careful scrutiny of the characterization allows us to see how, in the contingency of every specific case, facts are enunciated and described, and the applicable rule is chosen in a bi-directional sequential order: from the general rule toward the specific facts, following the legal ideal according to which the whole of reality is divided into a grid by the law and every specific case finds a place in one category devised for this purpose; from specific facts toward the general rule, as American Realists, for whom facts are forced into a prejudged category instead of being characterized in a logical way, seem to assume.2 In that respect, we speak of legal relevance, to stress that the relating of facts and rules works as a process of selecting and matching both, in situation and not in the abstract, in

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a contextual and not purely logically constrained way. Let us go back to our Indonesian example to see the form it can take. In a second testimony, the following exchange took place: J: You know the petitioner? W: Yes, I’ve known her since she was very young, as I’ve been her father’s friend for a long time. J: Do you know the defendant? W: Yes, I’ve known the husband since the day of their marriage. J: OK. Did you know there was a problem between them? W: Yes, I did. J: What is their problem? W: The problem started from the very beginning of their marriage. Well, I must tell the truth as I’m testifying under oath. When she was eleven, when finishing her primary school, she went directly to study in a Quranic school. When she came out, she was somebody very simple and innocent. [. . .] When her father wanted to marry her, she didn’t see her future husband. [. . .] On the day of the wedding, at the time of the offer-acceptance (ijab-kabul)3, this is when she saw her husband for the first time. She cried because she didn’t agree to marry that man. Her heart refused him [. . .] It was at the time of the wedding. It was the very beginning of their marriage problem. J: OK. It was at the time of the wedding. And after the wedding? W: After the wedding, the husband tried and he wanted to see his wife, but she didn’t want to. J: Never? W: Never. J: They have never lived together. They have never been under the same roof. W: Never. J: Thus, they have never been together since the beginning of their marriage until today? W: Never. Indeed, her husband doesn’t please her. Her heart refuses him. J: OK. So, they have never been together since the very beginning of the marriage. In fact, they parted after the wedding day. W: Yes. J: Is there any other reason? W: No, I don’t know of any. In this testimony, we see how the protagonists orient to the legal characterization of the facts. Indeed, in Indonesian law, the absence of cohabitation

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constitutes the indication of an irreconcilable disunion, as can be seen from the aforementioned provisions. Without ever explicitly mentioning it in the testimony, the judge and the witness invoke, insist on, and come back to this specific circumstance and to the fact that it dates back to the wedding day. They do not do this for the sake of telling a complete story but because they are both attempting to build a legally relevant narrative, that is, a narrative built in such a way that it produces legal effects. They produce the testimony collaboratively, with the aim of producing a story that can fit the categories of the law. This can be called “acting for all practical legal purposes.” The teleology of judicial work articulates with the search for legal relevance and with a concern for procedural correctness. From a legal viewpoint, the latter means that the due process of law is conditional upon the respect for procedural forms: two levels of jurisdiction, respect for the rights of defense, publicity of hearings, etc. From a praxeological viewpoint, it means paying due attention to the fact that the protagonists in a case practically orient to procedural issues, in some cases to avoid being exposed to the censorious review of a superior instance, in others so as to block the process on procedural grounds. Such concern for procedural correctness is often marked by formality. This is the case with the requirement of verbatim transcription of the accused’s or the witnesses’ words. In theory, this requirement seeks to guarantee fidelity to the content of what was said. In practice, the story is often rewritten according to the legal relevance that the practitioner is aiming at. The same teleology leads first-instance judges not to take legally audacious stances, as it would entail the risk of being overruled at the appeal stage. In any case, it can be stated with some degree of certainty that if rulings systematically enumerate the procedural steps that were followed and the textual provisions on which they are based, it is not so much to describe what happened as to display the procedural correctness that will protect them from procedural errors. In our Indonesian case, for instance, this takes the form of a reminder that there was an attempt to mediate between the spouses, which is legally required: Considering that the court failed to reconcile both parties. The Court used the Supreme Court regulation N˚1/2008 regarding mediation. The court ordered the female and the male petitioners to attempt a mediation via a mediator, Mr Kadi Sastro Wirjono. This mediation took place on 8 March 2016, but it did not succeed in conciliating the said spouses.

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The praxeological approach is also a means of observing the double dimension, prospective and retrospective, that characterizes judicial work. Procedural correctness illustrates this perfectly. On the one hand, the reminder of the procedure that was followed offers a retrospective view of what was accomplished to solve the dispute. On the other hand, this reminder aims to display, with respect to a possible later trial, that things were properly done at the formal level. It is thus retrospective in the enunciation of facts and prospective in the uses that can be made of this enunciation. This double dimension can be found at all levels of judicial and, more broadly, legal work. Such is the case of the concept of “love” in Indonesian law. Love is a concept that is not easy to define and varies according to the many contexts in which it is used. Moreover, love is not a concept that belongs to the Indonesian law of marriage, which speaks, in Art. 1 of the Law N˚1/1974, of a “material and moral union (lahir dan batin, which corresponds to the Arabic zaˆhiran wa baˆtinan) between a man and a woman, as husband and wife, with the goal of forming a happy and eternal family or household based on faith in the Unique God”; and stipulates, in Art. 3 of the Compilation of Islamic Law, that it “has the aim to create a conjugal life made of quietness, fondness, and goodness (sakinah, mawaddah wa rahmah).” This concept does not even come from the Quran, which stipulates: “And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed, in that are signs for a people who give thought” (al-Ruˆm, verse 21). However, this is a concept alluded to in the Compilation of Islamic Law, in the chapter regarding the spouses’ duties, which stipulates, at Art. 77 § 2: “Both husband and wife must love each other, show reciprocal respect, be faithful to each other, and help each other physically and emotionally.” Although the legal definition of love is either vague or absent, the concept is nevertheless invoked by the wife in another trial that Ayang Utriza Yakin followed, in the same region of Jakarta. She claims “to have no feeling” toward the petitioner (tidak ada rasa) and “not to be in love” with him (tidak cinta), which led her to ask her parents to cancel the wedding, something they refused to do because of the advanced stage of preparations. This is why, according to her, she did not attend the wedding, being sick at the idea of marrying a man she “does not love.” She also refused to have intercourse with her husband after the wedding, because she “doesn’t love” him. For this woman, this “lack

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of love” prevented her from fulfilling her duties toward her husband. In this case, love is thus used as an argument both to define the relationship between spouses and to sustain the wife’s argument when she asked the judges to grant the divorce requested by her husband. In his reply, the husband, who is requesting a divorce, denies his wife’s allegations that their marriage is not based on love, and suggests an alternative characterization: the wife’s infidelity. To the question of knowing whether their marriage was void of love, he presents the opposing fact that they loved each other for three years before the wedding. Moreover, the period of the wedding preparation went without a hitch, as proved by the photo session and the distribution of invitations, until she suddenly requested, one week before the wedding, its cancellation. After the wedding, the spouses had no sexual intercourse, something she does not deny either and which constitutes a breach on her side, as wives have to fulfill the duties stipulated in Art. 83 §1 of the Compilation of Islamic law: “The main duty of a wife is to materially and morally devote herself to her husband.” Art. 84 §1 of the Compilation states that a wife “is considered as nusyuz (in Arabic, nushuˆz, that is, failing) if she does not comply with her duties as stipulated at Art. 83 §1, unless she has legitimate reasons.” Finally, the husband claims that the real reason for his wife’s change of mood is her extramarital relationship, which is proved by a series of pieces of evidence; infidelity is forbidden in Islam. It is interesting to observe how the trial proceeds as a succession of narratives and counternarratives, characterizations and recharacterizations, with, in the middle of the quarrel, the meaning given to a word that has no legal existence but is nevertheless pivotal in a legal argument. This is what Garfinkel (1967) calls the “documentary method of interpretation.” He means that a categorization that is used to describe facts that have already occurred serves, in a contingent way, to ascribe a word with a determinate meaning serving, at a later stage, as a basis for the characterization of new instances. This is more or less the same mechanism that is targeted by Hacking (1995) when speaking of a “looping effect”: the meaning acquired by a word in specific circumstances will have an impact on the later perception of the phenomenon it designates as well as the manner in which past perception of it is described. In our case, the word “love,” while alien to the vocabulary of Indonesian law, intervenes in the qualification of a relationship and, by so doing, serves as the basis, at least implicitly, for the judges’ legal characterization of the trial facts, and even possibly as a precedent for later instances of a similar nature. A prominent feature of contemporary judicial practice is the continuous production, throughout the process leading to the ruling, of documents accounting for each step of the procedure, collecting evidence, calling expert

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witnesses and recording their results, and listing testimonies, with the teleological and practical purpose of correctly accomplishing the “action of judging.” This is seen, among other things, in the written document of the ruling whose structure is wholly oriented toward the public manifestation of its procedurally correct and legally relevant performance. If, from a formal viewpoint, the ruling seems to recapitulate past facts as a basis for its present judgment, deeper analysis shows that it consists more of a present decision forming a basis for its future effects. It gives the ruling its polished, flawless aspect, which makes it useful for all practical purposes, rather than historically trustworthy.4 Thus, in our second divorce ruling, the judge proves less interested in establishing the reality of marital infidelity than in finding a reasonable basis for his ruling: the absence of the harmony that is necessary for marital life, as testified by the absence of sexual relations – which is acknowledged by the wife who therefore admits the breach of her legal duties. In other words, instead of looking for the truth, the judge prefers a motive that is easier to establish and manipulate. The organization of practices of referencing to law can be perspicuously observed in texts produced by legal activities. On reading the text of a ruling, it may be noted that the context of its production is absent. Indeed, legal documents are written for all legal purposes and tend therefore to hide the specific circumstances of their formulation. In other words, rulings are “polished” versions obfuscating the actions that led to their production. From actions to accounts of these actions, from oral exchanges to written narratives, from records and minutes to reports, from reports to rulings, huge transformations operate, creating gaps between what happened, what was recorded, and what received the force of law. However, a praxeological analysis allows us to compensate for the defects of formal texts and to recover the usages that governed the writing of a ruling, the formalization of its retrospective-prospective dimensions, its dialogical and intertextual constitution, assembling in a single document multiple documents and testimonies, the relating of diverging narratives, and the emergence of a master-narrative. One can then see how mundane events become legal facts, how terms with fuzzy contours are transformed into constraining legal provisions, how ordinary people change into parties in a case, and finally how commonsense morality can acquire the status of law. One of the big debates in jurisprudence and legal theory concerns the relationships between law and morality. Roughly speaking, one can say that this debate opposes the proponents of natural law, for whom legal validity always ultimately relies on principles having no legal grounding but only a moral, natural, and universal basis, and the proponents of positivism, for whom the validity of a norm is a matter of its formulation in formal and

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substantial conformity to other norms with which it constitutes a system. A legal system is a system of dynamic and static justification: dynamic in the sense that a norm is legal if it was adopted in a manner conforming to a habilitating norm; static in the sense that a norm is legal if its contents conform to a superior norm (Troper, 1994: 174). One of the concrete consequences of this controversy is that whereas, for the theoreticians of natural law, an immoral legal system cannot be considered as law, positivists consider that immoral norms can constitute law providing that these norms satisfy the conditions for legal validity. It is not the vocation of the praxeological approach to settle such a debate: true to its logic, it will tend to consider that it is not an issue that can be solved by theoreticians in abstracto; rather, it is a topic that must be re-specified in a manner that accounts for its treatment by actual people in context and in action. Consequently, the nature of the relationship between law and morality is a question of describing the means of understanding, defining and distinguishing, and relating what is taken as moral and legal. From this point of view, two major considerations emerge: on the one hand, legal – and particularly judicial – work is thoroughly structured, as any human activity, by general or specialized norms, so that one can speak of the normativity (or morality) of legal reasoning; on the other hand, the same legal work reveals, when considered in its practical dimension, the wide porosity of legal categories to normative and moral ones. The two Indonesian examples demonstrate this perfectly. Love acquires the status of a category which, without being thoroughly legal, is legally effective, although it originally has no legal status. Legal texts are invoked as bases for the judge’s position, but they are invested with a meaning that seems very different from that which initially inspired the legislative authority. The same judge does not feel himself to be invested with the authority to go beyond the scope of the text, so he gives a legal dimension to love only through its depiction as something formally different. In his assessment of the presence or absence of love, but also in the way he conducts his daily interactions, the judge never stops using commonsense categories. At the same time, he seeks to give these categories a legally relevant character. It may thus be observed that the relationship between law and morality is intimate, but that they converge in a specific way: the “passage into law.” We use this term to express the idea that law is permeable to a whole range of normative repertoires – including esthetics, ethics, truth, and authenticity – which it translates into legal language in order to give them legal effect. If norms are “the translation of value systems for action” (Heinich, 2017: 281), law is the positive and formal translation for legal action of all the values available in a given social environment.

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As stated elsewhere, law can be assessed in moral terms, with the consequence that, in this process, morality becomes law. This process of transubstantiating morality into law cannot be achieved unless based on standards and categories, formal in some cases, implicit in others, with a more or less open texture, through the accomplishment of a moral and evaluative work of fact description, law identification, and legal characterization. It thus appears that the normativity of cognition is permanently fueled by the cognition of normativity; and that the cognition of normativity cannot escape the specificities of the normativity of cognition. It does not imply, however, that these two repertoires are confused, for two main reasons: first, the uses of these two repertoires are embedded in contexts that are specific and often differentiated; and second, these repertoires are mobilized for all practical purposes and their intersection is only occasional and circumstantial (Dupret, 2011)

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par t i i

historical ontologies

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4 Politics Made into Law: Determinism and Contingency in Moroccan Constitutionalism

“A government of laws and not of men,” according to John Adams, the rule of law finds its expression in a specific document: the constitution. However, despite (or because of) being an integral part of nation building, the concept of constitution is relatively new. The Massachusetts constitution of 1780 represents the first document of this kind. The drafters of the American Federal constitution of 1787 and the French constitution of 1791 were “fully aware that they had created something very innovative” (Halpe´rin, 2014: 73). Although it did not appear in a vacuum – Montesquieu (1874, 1914) spoke, in De l’esprit des lois, of an “English constitution,” referring primarily to the Magna Carta of 1215 and to the Bill of Rights of 1689 – constitutionalism is a late modern concept that has an “historical ontology”; that is to say, its birth, life, transformation, and eventual death can be described (Hacking, 2002; see also Chapter 2). Despite its strong association with natural law, it emerged in parallel with legal positivism, including codified law. However, it also represents a very distinct phenomenon because of its political meaning and especially because of its association with major changes, or even upheavals, in political regimes (Grimm, 2016). Nineteenth-century constitutionalism was characterized by the dissemination of the American-French model, which gathered in one single document a bill of rights and a frame of government based on the separation of powers. The reasons for the success of this model varied, stretching from the adoption of a “talisman of modernity” to the implementation of a flexible yet effective tool of governance. In the Muslim world, Tunisia was the first to adopt a constitution (1861), rapidly followed by the Ottoman Empire (1876), Egypt (1882), and Iran (1906). Adoption of a constitution always paralleled these countries’ attempts to assert their national identities, transform their political structures, and preserve their independence from imperialist designs. While in Europe, the “long nineteenth century” (Hobsbawm, 1962) extended until 99 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:19, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.005

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the end of the First World War, one can argue that, in Muslim countries, it even reached the period of independence, which was characterized in all cases by the adoption of constitutional texts forming the basis of the “new state” (Ben Achour, 1980). While in the United States, the development of the constitution as an enforceable set of rules went on throughout the nineteenth century and was already complete by the eve of the Second World War, constitutional review did not exist at all in Europe until the end of the First World War and in fact, with the exception of Austria, its inception did not begin until after the Second World War. This was probably due less to the nonrecognition of the legal character of the constitutional texts than to the difficulty in implementing the principle of constitutional review: parliamentary supremacy was taken as paramount and “the constitution was not treated in the legal order as the ‘fundamental law’, which could radiate through the whole legal system” (Halpe´rin, 2014: 92). In countries with a federal structure, constitutional review was initially inspired by the necessity to arbitrate between federal and federated states. In countries with an administrative system of law and adjudication (e.g. the French Conseil d’Etat), it arose from the need to organize the judicial review of administrative regulations. After the Second World War, the principle of constitutional review was disseminated globally, based on the American model in Japan and India, and on the Austrian model in Europe and elsewhere in the world. The picture should be nuanced, of course, but it can be argued with confidence that the constitutional model was globally adopted. This does not mean, however, that it always accompanied political revolutions, as (newly independent) authoritarian and semi-authoritarian states were quick to understand the utility of fac¸ade constitutionalism (Scheinkonstitutionalismus). Whatever its form and degree of efficiency, however, constitutionalism has become a global phenomenon. This is the framework for our analysis of Moroccan constitutionalism. In his Fikrat al-dustuˆr fıˆ’l-Maghrib (The Idea of Constitution in Morocco), Mohammed Nabil Mouline (2017) set out to publish and comment upon all the documents and texts related to the idea of constitution that were published, albeit not always in an official form, in Morocco between 1901 and 2011. It shows that besides the officially promulgated Fundamental Law (1961), constitutions, and constitutional amendments (1962, 1970, 1972, 1992, 1996, 2011), there were several attempts at drafting memoranda (mudhakkira), pacts (mu‘aˆhada), and projects (mashruˆ‘) laying the groundwork of founding constitutional texts. All these texts, whether promulgated or not, reflect a double tendency: the deterministic dynamics of global constitutionalism on the one hand, and historical and local specificities on the other.

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Three periods of constitutionalism can be identified: long-nineteenthcentury reformist constitutionalism; independence-consolidating constitutionalism; and post-1990s liberalizing constitutionalism. All three periods correspond to dynamics that unfolded all over the world, but they also manifest specific characteristics that cannot be explained without paying close attention to events in, and the peculiarities of, Moroccan political, social, and economic life. Moroccan constitutionalism can thus be properly described in terms of a combination of global determinism and local contingencies. In order to make such a description, we will mainly concentrate on the ways in which the drafters identify the different powers, their separation, and their balance. Only in this framework of constitutional checks and balances can we eventually address the place of Islam in these different texts. Indeed, it is our contention that the issue of Islam in constitutions cannot be dissociated from the general concept and organization of the state, from close attention to the state’s constitutive powers and their position in relation to each other or from the degree of religious legitimacy of the head of state. 4.1 LONG-NINETEENTH-CENTURY CONSTITUTIONALISM: THE PERIOD OF REFORMS

It can be safely argued that, in its current meaning, the concept received its first complete expression with American independence.1 Constitutionalism thus accompanied the creation of a state and was conceived as a way to lay its foundations and design its architecture. The French revolution represented the second major constitutional experiment. In this case, constitutional drafting accompanied a revolutionary process, that is, a process through which a new regime was substituted for an old one. In both cases, the “fathers of the constitution” conceived of their task in terms of devising the building blocks of a new political entity that contrasted with the one it replaced. The concept of constitution was not invented in a vacuum. According to Carlo Fantappie` (2011), who studied the transformation of the monks’ professio, from a moral proposal to a solemn promise, and from an ethical proposition to a legal duty, the Rule of the Mendicant Orders can be considered as the ancestor of the contemporary concept. The word itself, which comes from the Latin constitutio and has both a medical and a legal meaning, referred to the organization of a whole. In a political sense, the British accumulation of various statutes, judicial precedents, conventions, treaties, and other sources started to be collectively referred to as the “English constitution,” for example, by Bolingbroke: “By constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from

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certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed” (Bolingbroke, 1771: 157). In continental Europe, it became popularized by Montesquieu and de Lolme. The latter is the author of Constitution de l’Angleterre (1771), whose 1775 English translation proved deeply influential on American constitutionalism. In France, the word was not understood in its political sense before the mid-eighteenth century, when it started to designate the “structure of the political body” and the “composition of a regime” (Valensise, 1987: 444). The expression “constitution de l’e´tat” (state constitution) only appeared in dictionaries with the new Swiss edition of the great Encyclope´die, in the sense of “Fundamental regulation determining the manner in which public authority must be exercised. In it [viz. the constitution] one can see the form through which the nation acts in its quality of political body” (Vattel, 1772: 189–91, quoted in Valensise, 1987: 445). In other words, the combination of English ideas and Montesquieu’s work, especially when it associates the ancient Greek notion of politeia (individual freedom) and the division of powers (Beaud, 2009: 10), pushed the modern concept of constitution to the foreground. American independence triggered a constitutional revolution. Such was not the case in nineteenth-century continental Europe (Halpe´rin, 2014: 91). There are many reasons for this, including, according to time and place, political instability, an inclination toward a monarchical system, opposition to parliamentary supremacy, a preference for codes, reluctance over federalism, and the absence of constitutional review. However, constitutional texts developed: “Many countries in the Old World and in the New World . . . were long familiar with a kind of ‘modern constitutionalism’ (contrasting with the old regimes prior to 1789), without ‘constitutional revolution’” (Halpe´rin, 2014: 92). The impetus for adopting constitutional texts was strongly associated with the increasingly globalized nineteenth-century belief in the virtues of systematization and efficiency and with their close association with the emerging political form of the nation-state. It is important to stress here that the identification of constitutions with (liberal) democracy is only a recent phenomenon. During the nineteenth century, the drafting of constitutions was motivated by the wish to build more ordered and efficient political systems. It was not of an essentially revolutionary nature but rather understood as a reformist attempt at rationalizing the state and making it more (fiscally) accountable. We owe the concept of the “long nineteenth century” to Eric Hobsbawm (1962). It nicely captures the processes that Europe and an ever more globalized world went through between the French revolution and the First World War. Kapil Raj and Otto Sibum (2015) extended the notion to the “very long

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nineteenth century,” stretching from the Treaty of Paris (1763) to the Treaty of Versailles (1919). This period corresponds to a complete redrawing of the world map. During this extended nineteenth century, new states and regimes started to make systematic use of constitutions as legal instruments. Both internal and external factors prompted non-Western constitutionalism. At the external level, it was conceived as a means of resisting foreign penetration. However, it would be a mistake to consider it only in terms of a reaction against infringements of national sovereignty. At an internal level, drafting constitutions was also “designed to shore up the state from the inside” (Brown, 2002: 16). It originated from elites and focused on the strengthening of governmental authority. Despite its French revolutionary origins, nineteenth-century constitutionalism was not revolutionary and could hardly be such. As nicely explained by Nader Sohrabi (2011: 18), “it was difficult, not to say a contradiction, to be both a constitutionalist and a revolutionary as one derived legitimacy from respect for the law, community consensus, stability, and continuity, while the other owed its legitimacy to the act of revolution and its spirit.” Muslim countries did not stand apart from this global phenomenon. Their involvement began in 1861 with the promulgation of the Qaˆnuˆn al-Dawla alTuˆnisiyya (Law of the Tunisian State), which was based on the 1857 ‘Ahd alamaˆn (Pledge of Safety), which was itself inspired by the Ottoman Khatt-i Sharıˆf (Noble Edict) of 1839. Using a mix of Islamic terminology (e.g. the term ahl al-hall wa’l-‘aqd to designate the members of the assembly) and Western concepts (e.g. the separation of powers), this Fundamental Law aimed to rationalize the country’s administration and to introduce some measure of consultation and accountability (Brown, 2002: 19). This text did not survive the establishment of the French Protectorate, in May 1881. The Ottoman Qaˆnuˆn-i Esaˆsıˆ (Fundamental Law) of 1876 is the second and probably most influential constitutional text in the Muslim world. Like its Iranian counterpart of 1906, the Ottoman Fundamental Law was a product of “negotiation with the global model, and a hybrid result of interaction, absorption, and adaptation to local and regional exigencies” (Sohrabi, 2011: 19). As in the case of Japan, the Ottoman constitutionalists considered that the political framework adopted by European powers was “the most streamlined, merit-based, rational, indeed ‘scientific’ system” (Sohrabi, 2011: 21) capable of achieving regeneration and self-strengthening. Drafted by Midhat Pasha and based on the Belgian and Prussian constitutions, “recovering an array of Islamic and traditional concepts, reworking them, and extending their meanings to put them to new uses” (Sohrabi, 2011: 40), it promoted a conception of, among other things, representative government, collective and individual rights,

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citizenship without distinctions of religion, separation of powers, and national sovereignty. However, it retained autocratic features that lasted until the end of Sultan Abdu¨lhamid’s reign. Egypt is also well known for its early constitutional text. Drafted by the Chamber of Deputies (Majlis Shuˆraˆ al-Nuwwaˆb), itself created in 1860, and promulgated in February 1882, al-Laˆ’ihat alAsaˆsiyya (the Fundamental Regulation) was an attempt, in a context of external pressure, to make the khedive more politically and financially accountable. This constitution was immediately abrogated, following the failure of the ‘Urabi revolt. Like most constitutional texts of the time, its goal was to “strengthen the authority of the state in the face of internal rebellion, fiscal crisis, and external penetration” (Brown, 2002: 33). A word should be said about the Iranian constitutional experience. It was supported by the intelligentsia, which “harbored a statist interpretation of constitutionalism” (Sohrabi, 2011: 288), “a scientific doctrine of state strength through rational administrative transformation” (id.: 16). Promulgated in 1906 and 1907, the Fundamental Law (Qaˆnuˆn-i Asaˆsıˆ) and its Supplement (Mutammim-i Qaˆnuˆn-i Asaˆsıˆ) described the rights and duties of the parliament, the rights of the people, the powers of the monarchy, the power of the government, and the organization of the judicial power, public finances, and the army. Several texts were drafted in Morocco before the Treaty of Fez, which marked the beginning of the French Protectorate. While aiming to modernize the country, these texts are not revolutionary but reformist in their spirit. Two main features characterize them: the affirmation of Morocco’s sovereignty and the search for a constitutionally framed balance of powers. In a regional and international context characterized by European powers’ pressure on the Sultan (reflected by several unequal treaties) and struggles for domination (e.g. the 1906 Conference of Algeciras), they reflect how Morocco strove to keep its independence, but also the very widespread conviction at that time that legal modernization was a prerequisite to maintaining the country’s autonomy. Actually, not all these texts can be characterized as constitutional. They look like memoranda, manifestos, statements, etc. Moreover, none of them was ever promulgated. However, they all express the Moroccan elite’s sensitivity to the vocabulary and ideas that were circulating during this period throughout the world and, in particular, in Muslim countries. This is the case with respect to the ‘Abd Allah b. Sa‘id Memorandum (mudhakkira), issued by the commission of scholars and notables appointed in 1901 by Sultan ‘Abd al-‘Aziz b. Hasan (1894–1908). In a flowery style reminiscent of the fiqh rather than of constitutional literature, this short (nineteen sections) and incomplete draft was an attempt to reform and rationalize the Sharifian

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institution through “apparently traditional means” (Mouline, 2017: 12). Measures include an interest in administrative record-keeping; the election of councils to oversee the interests of counties; civil servants’ appointment and salaries; the organization of commerce, agriculture, cities, and places of worship; the organization of the army; the appointment of judges and of a chief justice; and the proper maintenance of agricultural land. The 1906 ‘Ali Znibir Memorandum reflected the pressure under which Morocco was struggling to maintain its independence. Drafted shortly after the Algeciras Conference, it was called “Safeguard of Independence and Refusal of Colonial Manipulation” (hafz al-istiqlaˆl wa lafz saytarat alihtilaˆl), a name that reflects its focus on sovereignty. Consisting of a very long introduction – stressing the issues of independence and occupation and looking more like a manifesto – and thirty-one provisions, this text seems to have been influenced by Egyptian constitutionalism. As stressed by Mouline (2017: 16), this is the first text we know that uses “a set of expressions and concepts linked to the building of the modern nation-state, like ‘the Moroccan nation’ (al-umma al-maghribiyya), the ‘nation-state’ (al-dawla al-wataniyya), the ‘national feeling’ (al-shu‘uˆr al-watanıˆ), the ‘national bound’ (al-raˆbita alqawmiyya), the ‘national flag’ (al-raˆya al-wataniyya), the ‘national uniform’ (al-ziy al-watanıˆ), the ‘official language’ (al-lugha al-wataniyya), and ‘arbitrariness’ (al-istibdaˆd).” Contrary to the ‘Abd Allah b. Sa‘id Memorandum, it is written in a constitutionalist style, including concepts such as “executive power” (al-sulta al-tanfıˆdhiyya, Art. 8), the principle of “equality” (musaˆwaˆ, Art. 9), and the election of a senate (Committee of the Nation’s Notables, lajna min a‘yaˆn al-umma, Art. 1 and 25). A prominent feature of this text is also its concern for civil peace, especially among tribes, the refusal of foreign interference, the importation of modern sciences and techniques “promoting the progress of the Nation” (yazıˆd al-umma taqadduman, Art. 27), and the creation of institutions sustaining the “reform” (islaˆh) of the country (Art. 30). Again in 1906, another memorandum was submitted by the Ottoman Sublime Porte representative to the Sultan, ‘Abd al-Karim Murad alTarabulsi. Deeply influenced by the Persian, Ottoman, Tunisian, Egyptian, and Japanese constitutional experiences, this text advocates the modernization of the Sultanate’s institutions and especially the army, police, customs, education, and religious foundations. Among other things, this memorandum “proposes to draft a constitution, to legislate unified laws through the codification of the provisions of the sharıˆ ‘a, and to create a two-chamber Assembly of Deputies” (Mouline, 2017: 24). The text does not present itself as a fullfledged constitution but rather as a series of statements (bayaˆn) regarding the composition of the Assembly of the Nation (majlis al-umma), the composition

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of the army, the creation of an assembly responsible for religious foundations (ahbaˆs, awqaˆf), and the restatement of these principles in the shape of codified rules. In 1908, following Sultan ‘Abd al-‘Aziz b. Hasan’s abdication in favor of his brother ‘Abd al-Hafidh, a group of Fez scholars (‘ulamaˆ’) drafted a text called “The Conditional Allegiance (al-bay‘a al-mashruˆta).” Contrary to most of the Sultan’s subjects, who pledged allegiance unconditionally, these scholars formulated several conditions related to the maintenance of independence, the return of occupied lands, the revival of the teaching of religion, and the consultation of the nation in all important questions faced by the Sultan. In a manner recalling the Bin Sa‘id Memorandum, this text mixes explicit traditionalism and modern concepts inspired by Ottoman and Persian experiences, like “the contractual formula between the ruler and the ruled (al-sıˆgha al-ta‘aˆqudiyya bayn al-haˆkim wa’l-mahkuˆm), the limitations on the monarch’s powers (taqyıˆd sulutat al-‘aˆhil), and the confirmation of the Nation’s sovereignty (siyaˆdat al-umma)” (Mouline, 2017: 40). This vocabulary is typical of the specific constitutionalism that would develop later on in Morocco, especially in the field of the monarchy and its relations with the parliament and the people. Again in 1908, the newspaper Lisaˆn al-Maghrib published a draft “Constitution for the Sharifian Kingdom.” Consisting of ninety-three articles, this document was by far the most complete, innovative, and detailed text of this first constitutional phase. It provided for “the indiscriminate respect of all known religions” (al-adyaˆn al-ma‘ruˆfa) and “the right for their members to freely exercise their worship” (sha‘aˆ’ira wa ma‘aˆlima mu‘taqadaˆtihim) (Art. 5). It also recognized “individual freedom” (al-hurriyya al-shakhsiyya, Art. 13), which consists of “saying and writing whatever one wishes to” (Art. 14). It introduced “compulsory primary education” (al-ta‘lıˆm al-ibtidaˆ’ıˆ al-ilzaˆmıˆ) (Art. 15). It established a two-chamber Consultative Council (muntadaˆ alshuˆraˆ): the Council of Notables (majlis al-shurafaˆ’), made up of twenty-five members appointed for life by different bodies, and the Council of the Nation (majlis al-umma), elected but without clearly defined procedures. The Council approves ministers’ expenditure (maˆl al-dawla) (Art. 68) and mandates inspectors to supervise and control the work of civil servants (Art. 70). Interestingly, the draft explicitly forbids “any son of the Moroccan state” (ahad min abnaˆ al-dawla al-maghribiyya) from obtaining the protection (himaˆya) of any other state (Arts. 75–8), a provision that reflects the pressure exerted on what the text calls “the Sharifian Moroccan state” (al-dawla al-maghribiyya alsharıˆfa).

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This first generation of Moroccan constitutional texts focused on the issue of sovereignty, in a context marked by colonialist pressure, but also on reform, as it appeared to many people that the collapse of the state had made colonization possible in the first place. Morocco was colonized, albeit much later than Algeria or Tunisia, after the Treaty of Fez established the Protectorate of France in 1912. To a certain extent, this treaty embodies this striving for dual constitutionalism (stressing both sovereignty and reform), since it justifies the establishment of “a new regime in Morocco” (nizaˆm jadıˆd bi’l-maghrib) based on the need for “administrative, judicial, educational, financial, and military reforms” (islaˆhaˆt) (Art. 1). As rightly emphasized by Mouline (2017: 66), this new regime is characterized by its two-level organization: “the first one is based on traditional institutions and relations (the Makhzen), and the second concentrates on the new instruments of governance and control.” In the period between the establishment of the Protectorate and the achievement of independence, several draft constitutions were produced in which the nationalists mainly formulated the conception they had of a free Moroccan state. However, before the process was launched, an interesting text was published, in 1934, which emphasized the extension of reform rather than pressing for independence. It reflects an intermediate period characterized by both the emergence of the Nationalist Movement and the continuation of a reformist attitude requesting France to fulfill its legal duties, instead of a revolutionary stance emphasizing the colonizer’s lack of legitimacy. Drafted in both Arabic and French by the Moroccan Action Committee (alkutlat al-‘aˆmila al-maghribiyya, literally the Moroccan Acting Bloc), which was composed of men from the educated elite, bringing together leaders of the protest that followed the promulgation of the infamous Berber Dahir, in 1930, and members of the Young Moroccans movement, this manifesto was presented as the expression of the people’s demands (mataˆlib al-sha‘b): Our plan is neither negative nor chimeric. It has nothing subversive about it. Our stance with respect to the Protectorate is clear: We adopt the political principles as they emerge from the letter and the spirit of the treaties, from the messages and the official statements of the French government, as French legal doctrine defines them in this matter. The whole set of reforms that we submit for the Government’s attention seems to us to be compatible with the principle of the Protectorate as specified and confirmed in the texts we quote in support of our Plan.

Many important figures from the Moroccan Nationalist Movement were members of the Committee: ‘Allal al-Fa’si (Allal El Fassi), Muhammad b. alHasan al-Wazzani (Mohamed Hassan Ouazzani), Ahmad Balafrij (Ahmed

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Balafrej), Ahmad Makwar (Ahmed Mekouar). It had an Islamic reformist component, represented by ‘Allal El Fassi, and a modernist one, led by Mohamed Hassan Ouazzani (Abitbol, 2014: 446–85). Presented to Sultan Muhammad V, Resident General Henri Ponsot, and President of the Council of Ministers Pierre Laval at the same time, this text was backed by many important French political and intellectual figures. Its ambition was to coerce the French into applying the ultimate logic of their own words and commitments toward the modernization of Morocco. In a very detailed manner, it sought reforms: political (al-islaˆhaˆt al-siyaˆsiyya),2 social (al-islaˆhaˆt alijtimaˆ‘iyya), legal (al-islaˆhaˆt al-‘adliyya),3 economic and financial (al-islaˆhaˆt aliqtisaˆdiyya wa’l-maˆliyya). It also addressed a vast range of issues, including the respect of individual and public liberties (al-hurriyyaˆt al-shakhsiyya wa’l-‘aˆmma),4 the organization of religious foundations (al-ahbaˆs al-islaˆmiyya), public health (al-sihha al-‘aˆmma), real estate (al-nizaˆm al-‘aqqaˆrıˆ)5, tax and financial issues, and labor (al-‘amal). As to Moroccan identity, it provided stricter conditions regarding Moroccan citizenship (al-jinsiyya al-maghribiyya),6 sought the end of land grabbing and settlement as well as the promotion of modern agriculture, the abrogation of specifically Berber policies, a ban on evangelization practices, and the recognition of Arabic as the official language. In 1936, more demands were included in the manifesto, including public freedoms (press, movement, assembly; amnesty for political prisoners). They all pointed in the same reformist direction. However, they seemed excessive to the French authorities, who pronounced the dissolution of the Committee in March 1937; dissolved newspapers such as The People’s Action, the CAM’s (Comite´ d’Action Marocaine) official organ; deported Allal El Fassi to Gabon, and sent other leaders to prison in the Sahara. Subsequently, these same reformists would turn into radical supporters of independence, but they would do it in two different ways, which already prefigured postindependence Moroccan history. On the one hand, there was the Islamic reformist trend led by El Fassi and Balafrej, who represented a majority and were present in most cities and regions of the country. They founded the National Party for the Realization of the Demands (al-hizb al-watanıˆ litahqıˆq al-mataˆlib), which, in the early 1940s, transformed itself into the Independence Party (hizb al-istiqlaˆl). On the other hand, there was the modernist trend, mainly located in Casablanca, which founded the National Movement (al-haraka al-qawmiyya).

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4.2 SHORT-TWENTIETH-CENTURY CONSTITUTIONALISM: THE PERIOD OF INDEPENDENCE

While the reformist mood characterized the constitutionalism of the long nineteenth-century, the type of constitutionalism that accompanied the independence process in colonized countries proved much more radical. It had two main features. On the one hand, it was oriented toward the affirmation of national sovereignty and identity with respect to the former colonizer and other external entities. On the other hand, it described the force that emerged during and after the struggle for independence as predominant in the internal power game. In that respect, the constitutional mood can be described as much more revolutionary, even though, in the case of Morocco, the revolution proved rather conservative. In Western countries – with the exception of the United States which had made constitutional law an enforceable set of rules by the 1930s (Halpe´rin, 2014: 89) – post-First World War constitutionalism witnessed the initially timid, then global adoption of constitutional review. The latter was linked to the inclusion of an ever-growing list of human rights and freedoms going much beyond the classical bill of rights we find in earlier constitutions. It also accompanied decentralizing and federalizing processes. During this period, constitutionalism and democracy came closer to, and increasingly synonymous with, each other.7 In fact, in these countries constitutionalism became the means by which democracy became entrenched. In socialist countries, the goal was different and it is beyond the scope of this chapter to examine it, other than to emphasize the fact that socialist constitutions had an ideological rather than an organizational role. As nicely explained by Michel Camau (1974, 1976, 1978), constitutional texts have two main components: one is prospective, in the ideals they promote; the other is retrospective, in the description of a political organization. The respective weight of each of these two components is not the same at all times or in all places. While, after the Second World War, liberal constitutions tended to become increasingly organizational, socialist constitutions tended to be rather “programmatic.” In formerly colonized countries, the tendency was initially to emphasize the programmatic dimension of constitutions, in a kind of “performative” language that, by the sole power of its formulation, sought to create realities: political independence, national identity, popular sovereignty, social and economic development. The situation was contrasted, however, depending on whether, beyond the break with the colonizer, the newly independent state adopted a new political regime, as in the case of Arab republican constitutions, or perpetuated an old one, as with Arab monarchies. While the programmatic

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function of constitutions proved prominent in republican regimes, “monarchical constitutions in the Arab world have not been highly ideological documents” (Brown, 2002: 63). This statement should be qualified, however, in two respects. First, monarchical constitutions paid tribute to the principle of popular sovereignty, although this was done in such a way that the monarch was made the sole interpreter of the people’s will. Second, as we shall see in the last section of this chapter, they insisted on the Islamic component of the state in an ideological manner, that is, within the context of the Cold War, in a manner that, based on religious principles, excluded socialism and communism. It nevertheless remains true that monarchical constitutions were more pragmatic than programmatic, seeking to organize the monarch’s authority without limiting it, to make state structures accountable to monarchs without making monarchs accountable to them. In Section 4.1, we spoke of texts drafted between the Treaty of Fez and independence. While the Demands of the Moroccan Action Committee we examined were of a reformist nature, subsequent texts were clearly asking for the end of the Protectorate. In that sense, we can speak of attempts to revolutionize the political system. At the same time, and contrary to countries that established republican regimes, Morocco was a monarchy and Sultan Muhammad V was part of the National Movement, together with political parties including the Independence Party (hizb al-istiqlaˆl), that was born in December 1943. Between 1943 and 1944, several texts written by the Patriotic National Front (al-jibha al-qawmiyya al-wataniyya), the Independence Party, and the Nationalist Movement (al-haraka al-qawmiyya) requested independence. They cannot be characterized as constitutional, since, as rightly stressed by Mouline (2017: 98), they did not devote much space to the regime of government that should follow independence, beside the expression of their attachment to the monarchy and to the balance between authenticity and modernity. These requests did not represent the whole spectrum of Moroccan nationalist movements. Actually, there were some groups radically opposed to them because of their allegedly secularist nature. According to these groups, the only way “to access independence and restore the glorious days of the past was to elevate Islam not only as a faith but as a complete social system and an all-encompassing political regime” (Mouline, 2017: 106), thus translating a global Islamic tendency, which was exacerbated by the fall of the Ottoman caliphate. Such was the document drafted in 1954 by Muhammad al-Muntasir Bi’llah al-Kittani (Mohamed Mountassir el-Kettani), a member of the wellknown family of Syrian-Moroccan Islamic scholars (‘ulamaˆ ’) and the founder of the short-lived Party of the Caliphate (hizb al-khilaˆfa), whose failure led him to join the Independence Party despite “its total contradiction with his

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convictions and orientations” (Mouline, 2017: 107). His draft consists of half a dozen sections addressing a vast range of issues stretching from the creation of Greater Morocco and of the United Arab States (al-wilaˆyat al-‘arabiyya almuttahida) to the definition of the regime, presided over by a king in turn assisted by an assembly (daˆr al-nadwa) advising him on all legal matters within the framework of the sharıˆ ‘a, via all-encompassing Arabic and Islamic reform in matters of language, culture, and society. The last text to be published before Moroccan independence was the Memorandum of the Consultation and Independence Party. In a certain manner, this text proposes a direction that proved to be the exact opposite of that which was followed by the country. In that sense, it contains the germs of attrition and opposition that have lasted throughout the history of Morocco until the present day. Following the requests and with the outbreak of the Second World War, there was a general hope among national movements that France would swiftly grant Morocco its independence. However, this was not the case, despite the colonizer’s apparent offer to enter into discussions. At the same time, most Moroccan leaders and parties were not prepared to present any consistent project, with the exception of al-Wazzani’s Consultation and Independence Party which, in its 1947 Memorandum, presented a working program asking for a transitional period that aimed to “avoid the establishment of an authoritarian regime after an improvised independence, with a reactionary monarchy and a single party” (Mouline, 2017: 122). Its main proposals were, first, the implementation of measures to develop trust, such as the abrogation of unfair laws and the promulgation of general amnesty; and, second, the abrogation of the treaty establishing the Protectorate and its replacement with a new agreement recognizing Morocco’s independence and sovereignty, and resulting in a transitional period lasting approximately two years during which a government would be formed to ensure the “Moroccanizing” of public services, and the election of a National Assembly (whose first task would be to draft a constitution guaranteeing liberties and sanctioning the separation of powers). In other words, the Memorandum was asking for the establishment of a pluralist regime and a constitutional monarchy, a program that inevitably antagonized both the Palace and the Independence Party, and eventually found no support. At the constitutional level, nothing happened until independence, which itself followed a period of huge turmoil resulting, for example, in the Sultan’s exile to Madagascar. After the outbreak of the Algerian War, France had no alternative but to open negotiations with the nationalists and the monarch, resulting in the November 1955 Seine Saint-Cloud Declaration in which France acknowledged Morocco’s right to independence. It was officially

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promulgated on April 7, 1956. “A new era started in the country’s history, one of the main features of which was the struggle between the monarchy and the Independence Party for control of the political game” (Mouline, 2017: 136). The constitutional issue was necessarily at the heart of this, since the former wanted to maintain its supremacy, whereas the latter wanted a text asserting the people’s sovereignty. The monarchy eventually won, something that becomes clear when reading the Royal Covenant (al-‘ahd al-maliki) through which Muhammad V gave himself wide powers, for example, through the interpretation of key institutional principles,8 but also placed both the executive and the legislative powers under his supervision. Morocco had to wait until 1961 for its first constitutional text. This is explained by the balance of the political forces at the time of independence. As nicely shown by Michel Camau (1971, 1973), the latter notion could not be separated from the concept of democracy. It was indeed contradictory to request independence in the name of liberty and not to consider its institutional consequences when organizing the newly independent state. Consequently, Muhammad V and his heir, the future Hasan II, had to work toward the building of representative institutions, at the heart of which is an elected parliament. A parliament is not a democratic institution per se, as it can be dominated by an elite that over- or underestimates the people’s preferences (Manin, 1995). In other words, authoritarian regimes can accommodate parliaments, provided that the electoral process and the elected representatives’ votes remain under control. Moreover, the Moroccan ruler owed his power neither to the colonizer nor to the people. In Morocco, contrary to what happened in Tunisia, the Protectorate’s main interlocutor was the Sultan and not the Nationalist Movement. The problem for the Moroccan monarch was not, therefore, the creation of a representative system, since that did not deprive him of power, but controlling the elections and those who were designated as representatives. This explains why Morocco did not elect a parliament in 1956, when it obtained independence, although Muhammad V created a National Consultative Assembly that very same year. Among its seventy-six members, interestingly, only twenty-two were avowedly political activists, while the rest were representatives of socioeconomic and sectorial (e.g. religious) interests; and only ten out of the twenty-two politically minded members belonged to the Independence Party. In other words, the need to both respect the democratic promise and bypass the potential alternative leadership of the highly popular Independence Party led the King to designate a nonelected assembly. Using the same logic, the Fundamental Law of the Kingdom of Morocco (al-qaˆnuˆn al-asaˆsıˆ li’l-mamlaka al-maghribiyya) and the first Constitution of the Kingdom of Morocco (dustuˆr al-mamlaka al-maghribiyya), which were

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promulgated in 1961 and 1962, respectively, were drafted by committees that were not elected but appointed by the King. The adoption of the Fundamental Law closely followed the death of Muhammad V and the accession to the throne of Hasan II, who sought to consolidate his power through, for example, the assertion of its constitutional legitimacy. Conceived as a provisional text, it consists of nineteen provisions that do not seek to organize the country but only to establish its monarchical, Islamic, Arab, international, and territorial nature, beside some considerations about the dignity and the rights of the citizens. Although of a different kind, the 1962 Constitution was not drafted by an assembly either, and certainly not an elected one, but by experts who relied heavily on the recently promulgated Constitution of the French Fifth Republic. Officially adopted by referendum in December of the same year and containing 110 articles, the 1962 Constitution reflected the monarchy’s authoritarianism, organizing the secondary role of the government, which is accountable to the King (Art. 64); the marginal role of the parties, limited to citizens’ participation and organization (Art. 3); the limitation of individual and public freedoms, which are recognized but cannot be exercised except in accordance with the law (Art. 9); and the absolute powers of the King (Arts. 24–35), who occupies a supra-constitutional role (Art. 19) and is given a sacred status (Art.23). While the Independence Party had a large majority in 1956 and could offer an alternative to the monarchy, it suffered from internal attrition, including the scission of its leftist wing that led to the creation in 1959 of the National Union of Popular Forces (NUPF). When Hasan II succeeded his father in 1962, the balance of power had changed and it seemed to the King that the forces devoted to him could win the vote or, at least, that the Istiqlal could not win it. Moreover, shortly before the elections, a confederation of parties called the Front for the Defense of Constitutional Institutions (FDCI), which supported the royal leadership, was formed, a game that would prove most successful throughout Moroccan constitutional history. The polls were nevertheless disappointing, as, despite the FDCI winning the election, it received exactly the same number of seats as the Istiqlal and the NUPF, meaning that no real majority emerged. In 1965, the King decreed a state of exception, abrogated the Constitution, and suspended Parliament, using his powers of decree and bypassing the political parties until 1970, when he submitted a new constitutional text to a referendum. The latter proved even more authoritarian, as it actually constitutionalized the state of exception, overriding the principles of representative government and giving the King the majority of powers in his quality of Commander of the Faithful and guarantor of the permanency of the state. Its most noteworthy provisions include the removal of

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immunity from deputies if they challenge the King or Islam (Art. 37),9 the establishment of stricter quorums for motions of no confidence or censure of the government (Arts. 73–4), the merger of the upper and lower chambers of the parliament (called the Assembly of Deputies, majlis al-nuwwaˆb), and the extension of the King’s prerogatives (Arts. 25–8). Two aborted coups, in 1971 and 1972, convinced Hasan II that a system entirely focused on security could not work indefinitely, as some of the security services might be tempted to play their own game, and not the King’s. This is how, with the drafting and adoption of the 1972 Constitution, he started to reintroduce political parties. He did this unilaterally, however, as the aim was obviously not to share power with political parties but to lessen the monarchy’s dependence on the security apparatus. In constitutional terms, this represented a moderate limitation of the King’s powers, whose absolute executive competence to issue decrees (Art. 29 of the 1970 Constitution) are transferred to the Prime Minister (Art. 62 of the 1972 Constitution). The same holds true with regard to legislation, which is a competence belonging to Parliament and which is extended in the 1972 Constitution to matters of nationalization, privatization, institution building, the status of magistrates, and public services (Art. 45). Despite its promulgation after a referendum showing 98.75 percent popular approval, the 1972 Constitution did not really come into force for five years. During the intervening period, the King ruled alone, using various means including the patriotic fervor ignited by the issue of territorial integrity and the decolonization of Spanish Sahara. In 1977, what was called at that time “the democratic series” began, with local and parliamentary elections, which were controlled by the Ministry of Interior and appointed representatives submitted to the Palace and ready to serve in a “registration chamber” (Mouline, 2017: 172). From that time until the beginning of the 1990s, Hasan II sought to establish an authoritarian equilibrium that was no longer founded on the exclusion of political parties or on the domination of a totally subservient party – as it would mean excessively exposing the King to politics – but that would prevent the emergence of dominant powers within the partisan game. Based on a leadership practice developed since the time when independence was achieved, the Moroccan monarch had an advantage over other political forces in terms of substantial executive capacities. The issue at stake was, therefore, on the one hand to maintain a situation where it is impossible for these forces to constitute an alternative, while, on the other hand, to preserve the King’s sole leadership. In that respect, political pluralism was the greatest aid to the King’s authoritarian objective, as it impeded the creation of coherent and

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stable majorities. During this period, faking of elections consisted of limiting the amplitude of the parties’ scores, even the most royalist. It was much more effective to induce political attrition among the parties, in a zero-sum game, than to forbid parties, a solution that always creates a basis for strong claims and opposition. 4.3 NEW CONSTITUTIONALISM: LIMITED PLURALISM AND ACCOUNTABILITY

In Europe, constitutional law has become a major domain of law, political science and jurisprudence. This was not the case during the long nineteenth century and only to a limited extent during the short twentieth century. However, the “judicialization” of constitutional law, that is, the submission of legislation to constitutional review, deeply affected its nature, making it much more efficient and even more accountable. The “political conception of the constitution” (Pfersmann, 1998: 73) was replaced by a “legal conception of the constitution.” In France, the extension of the Constitutional Council’s jurisdiction during the 1970s and early 1980s, together with the development of charters for the protection of human rights, prompted this change. For many authors, the very fact that a dedicated judge now oversaw respect for the constitution transformed it into constitutional law sensu stricto. In other words, “judicialization” meant “juridicization.” Moreover, it also meant that constitutions – because of the emphasis on, and extension of, fundamental rights – evolved from texts overseeing the relationship between governing authorities into texts overseeing the relationships between the state and its citizens (Beaud, 2003: 258–60). In non-Western countries, the end of the Cold War in the late 1980s marked the beginning of a new constitutional era, with the disappearance of the predominantly programmatic constitutions and the worldwide transformation of constitutional texts from political instruments into legal status for states (Beaud, 2009). Constitutionalism became associated with the transition process from authoritarian to democratic regimes. It was also characterized by a strong federalist tendency, the broadening of the bill of rights included in the text, the extension of constitutional review, and a tendency to become more procedural. However, even when designed to frame a radical transition, drafting of constitutions looked like “rebuilding the ship at sea” (Elster et al., 1998), that is, using available institutions in order to create new political realities. This process has a strong contingent character. Institution building has unintended consequences: reshuffled institutions were not designed for their new purposes; new institutions cannot guarantee the direction of their

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future use. Despite significant trends at the international level, national particularities have made it more difficult to capture features common to all constitutions. It is as if the acceleration of globalization increased the need to better anchor institutions locally. This double movement has been captured by the neologism “glocalization.” While liberal constitutionalism went quasiglobal, its enactment became to a great extent local. France exerted a major constitutional influence on many Muslim countries. Its status of former colonizer is among the most obvious reasons why the constitutions of North and West African countries drew so much inspiration from the model of the Fifth Republic. However, this mimetic argument is only partly valid. It highlights the fact that the French model was readily available in those countries, but it does not explain why, from among the many French models, they chose to borrow the 1958 Constitution. To what was called “hereditary Gaullism” by one of the most famous French constitutionalists, Maurice Duverger,10 one should perhaps add “functional Gaullism,” in the sense that this text was of a hyper-presidential nature. The “Fifth Republic” is a regime of “rationalized parliamentarism” (Le Roy, 2009: 554), that is, a regime in which the rights of the parliament are contained and the authority of the head of state predominates. Moreover, this constitution is more concerned with strengthening the state than with protecting its citizens. This constitutional philosophy suited the drafters of constitutions in Muslim countries very well, be they republican or monarchical, who were seeking to legally establish the ruler’s supremacy. This holds true in the field of constitutional review, which was initially limited in France to a priori review, was confined to the provisions of the constitution itself, and could be initiated only by state institutions. From 1971 onwards, it extended to texts referred to by the preamble of the 1958 constitution, it was opened to a posteriori review, and it could be initiated by individual citizens.11 This later development was only selectively translated into the constitutions of Muslim countries. Many factors contributed to the opening of a new constitutional era in Morocco from the early 1990s. The end of the Cold War is certainly one of them, since the alliance with Western powers was no longer sufficient to make the American and French godfathers close their eyes to blatant violations of human rights and overt neglect of democratic principles. It is also possible that King Hasan II was already anticipating his forthcoming succession and thinking about the need to transmit power to a politically stable, balanced country. Several memoranda were drafted by political parties, among which one was submitted to the Palace in 1992 by the new Democratic Bloc (al-kutla aldıˆmuˆqraˆtiyya), which consisted of the Independence Party (hizb al-istiqlaˆl), the Socialist Union of Popular Forces (al-ittihaˆd al-ishtiraˆkıˆ li’l-quwaˆt al-

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sha‘biyya), the Patriotic Union of Popular Forces (al-ittihaˆd al-watanıˆ li’l-quwaˆt al-sha‘biyya), the Progress and Socialist Party (hizb al-taqaddum w’alishtiraˆkiyya), and the Organization of Popular Democratic Action (munazzamat al-‘amal al-dıˆmuˆqraˆtıˆ al-sha‘bıˆ). Despite their far-from-revolutionary nature (Mouline, 2017: 184), the Bloc’s demands received little attention from the Palace, which had no intention of loosening its grip. After some dilatory measures, amendments to the Constitution were nevertheless drafted and approved by referendum in 1992. Only a few of the opposition proposals were taken into consideration and these few were not really implemented, but a small degree of opening up toward civil society can be observed, which translated into a somewhat relaxed political and social atmosphere. Among the new provisions, there was the creation of the Constitutional Council (almajlis al-dustuˆrıˆ), responsible for constitutional review (Arts. 76–9),12 and of the Economic and Social Council (al-majlis al-iqtisaˆdıˆ wa’l-ijtimaˆ‘ıˆ, Arts. 91–3). Both Councils could be seen as moving toward the King’s selfproclaimed intention to implement a state that would abide by the rule of law and respect human rights. The processes that started in the early 1990s continued throughout the decade, all the more so because the two main factors that had contributed to the political, and consequently constitutional, inflections had radically intensified. Negotiations started between the Palace and the opposition eventually leading to the appointment of a government of consensual alternation (hukuˆma tanaˆwub tawaˆfuqıˆ). Meanwhile, Hasan II had unilaterally submitted constitutional amendments to a referendum. These were approved in August 1996, with a Soviet score as usual (Ferrie´, 2000). The 1996 amendments introduced changes in the areas of public freedoms and human rights, in the relationships between the legislative and executive powers, the reform of both the administrative and the judicial systems, the supervision of elections and the creation of new bodies such as the Supreme Audit Council (al-majlis ala‘laˆ li’l-hisaˆbaˆt, Art. 96–99). In fact, it was the mode of designation of members of Parliament that proved crucial. The pre-1996 system involved two-thirds being elected directly and the remaining third indirectly. This meant that, in practice, the parties comprising the National Bloc could not be in command. The amendments divided the Parliament into two chambers, the Chamber of Representatives (majlis al-nuwwaˆb), entirely elected by direct universal suffrage, and the Chamber of Counsellors (majlis al-mustashaˆrıˆn), who were indirectly elected, within the framework of an almost egalitarian bicameralism. This second chamber could overthrow the government. Thus, by converting the portion of the former Parliament that had been indirectly elected into a second

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chamber, the King could reduce the scope of electoral victories. At the political level, however, the Constitution did not fundamentally change the nature of the regime and the relationships between the King, the government, and the Parliament. What was called “consensual alternation” amounted in fact to the repentance of parties which, up to that point, had never overtly accepted undivided monarchical leadership with respect to public affairs. For these parties, it had some specific advantages, including the exercise of responsibilities, albeit limited, and, for some individuals, amnesty and return from exile. At the same time the regime undoubtedly liberalized itself, its opposition, eventually coopted, vanished. With the 1996 Constitution and the consensual alternation government, Morocco’s new political architecture was established. Alternation was understood differently by the two protagonists. The National Bloc understood it as a means to implement reforms and rebalance power, with a government benefiting from a real electoral legitimacy. The monarchy saw it as the opportunity, in exchange for relatively significant concessions, to make the opposition accept its leadership. It took eight years to be fully implemented. Despite its obvious and drastic limits, this process profoundly changed the political scene, as it created consensus regarding the monarchy and gave access to top jobs to people who had hitherto been confined to the opposition. The King agreed to give opposition forces the prime-ministership and ministerial portfolios, while the Prime Minister agreed not to choose the Ministers of the Interior, Justice, Foreign Affairs, or Religious Affairs. In other words, his competence was confined to socioeconomic matters, but this was not insignificant, as it allowed him to undertake urgently needed social and human rights reforms.13 This trend was accentuated with the accession of Muhammad VI to the throne. Designated at the “Royal Workshop,” human development received much attention and this hugely contributed to the monarchy’s popularity and legitimacy, as well as to the opening up of the social and political arena, although it also contributed to a depoliticization of the debate (see Bennani-Chraı¨bi et al., 2004). At the same time, a degree of social, religious, and cultural pluralism was promoted, including the creation of a Royal Institute for Amazigh Culture in 2001, and the drafting of a new Family Code in 2003. Numerous institutional changes had for a long time hinted at a reorientation of Moroccan governance before major demonstrations broke out in February 2011, in the wake of the Arab Spring. These included the work of the Advisory Committee on Regionalization, the creation of the National Council of Human Rights and of the Economic, Social and Environmental Council. Indeed, the King started his speech of March 9 with the regionalization process,

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announcing a new constitutional reform. The scale of the reform in the royal speech significantly defused uncertainty about the orientation of the regime and the King’s will to go through with the ideas to which he was committed. In other words, it defused the February 20 Movement by proposing a major reform in the relationship between the rulers and the ruled. In fact, the February 20 Movement proved to be an opportunity for the monarchy: that of being able to accelerate the reforms based on an explicit demand and benefiting from the mediatization of a movement which, although not precisely representing “the population,” had managed to impose itself as expressing some of the latter’s expectations. The reforms then emerged as a consensual political necessity and, implicitly, as a way of avoiding the major crises being experienced by other countries in the region. The new Constitution,14 drafted by a constitutional committee whose members, although appointed by the King, were for the first time publicly known and representative of the different sectors of the society, was adopted by referendum and promulgated in July 2011. It has three essential characteristics: the delimitation of a broad scope of action in favor of the head of government who will have the necessary means to carry out his task and, above all, to control the parliamentary majority supporting him; the assertion of the powers of arbitration and influence of the sovereign; the establishment of independent bodies responsible for the protection and development of rights. This separation is less about separating the executive, the legislative, and the judiciary than about delineating spheres of influence. This means that the government and the parliament are functionally linked rather than opposing or balancing each other. The head of government is necessarily chosen from among the members of the party that came first in the ballots. This is a parliamentary logic. He has the right of dissolution. This is the rationalization of parliamentarism, all the more necessary since Moroccan governments have always been coalitions. The right of dissolution will help to make the head of government the true “chief” of his majority. It will also provide the opportunity to commit the government to a bill, which is a strong means of coercion with respect to parliament, since overthrowing the government almost certainly means calling an election. The rest depends on electoral law. In themselves, these measures already lay the foundation for a strong parliamentary system; but this system is only one component of the constitutional architecture, whereas elsewhere it usually represents most of it. From this point of view, the 2011 Constitution is truly innovative. Moreover, it differs widely from the previous ones, which aimed, first and foremost, to protect the monarchy from the government and the parliament (although there was not much real risk to the monarchy). It aims, on the contrary, to consolidate a zone

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of autonomous government in which the head of government is, de facto, directly responsible to the people, through elections. It is his/her obligatory appointment from among the representatives of the party that comes first in the elections that establishes this logic, which is close to the British and German parliamentary systems where voting for a party means at the same time choosing the leader of the executive. The electors know who will be the head of government and the latter knows that he can only stay there with their support, since the King cannot name or dismiss him freely and he cannot hope to keep his position, even with the support of a coalition, if his party does not come first. This is a very strong weapon given to voters in return for the powers granted to the head of government. However, this provision was also at the center of a crisis, after the 2016 parliamentary elections, when the leader of the PJD (Parti Justice et De´veloppement [Justice and Development Party]) proved unable to form a coalition because of a strong opposition to him personally. He had to let another member of the winning party take his seat and form the new government. The parliamentary logic of the text is, in fact, limited by the powers of the sovereign. We must think of them in the same way as the presidential powers that were designed at the beginning of the French Fifth Republic (between 1958 and 1962), at the time when the President was not only the effective head of the parliamentary majority but had a strong historical legitimacy. His powers were seen as a means of better protecting the country’s fundamental interests by not placing them at the center of partisan negotiations. This conception is close to the spirit of constitutionalism, which consists in not letting all decisions depend on the majority. In the same vein, the establishment of a Constitutional Court, backed by the broad declaration of rights in the Constitution and to which the citizens can turn, guarantees the existence of an independent mechanism affording protection of rights. In the aftermath of 2011, the task remained of transforming this architecture into reality.15 This was where matters proved to be most complicated. The undeniable advances contained in the text largely depended on their implementation, including the incorporating Acts and rulings of the Constitutional Court. Although the 2011 Constitution is in line with Morocco’s reformist trend, accelerated by the February 20 Movement, the local version of the Arab Spring, which the ruler has seized as an opportunity to engage in consensual political remodeling, the country remains far from the constitutional monarchy that its moderate opponents have been demanding for decades. Generally speaking, in a manner that has become classic in Morocco’s modern history, the way in which institutional changes took place benefited both the country’s stability and the monarchy’s sovereignty. However, it is less

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certain that they were successful with respect to an important purpose of state institutions: conducting good public policies. If we wish to formulate a sufficiently robust hypothesis to explain this underperformance, we must turn to the overall functioning of the executive. The Moroccan system must again be considered as a presidential system, that is, a system where the head of state has preeminence over the other executive institutions, the head of government, and the government itself. He does more than arbitrate; he determines the major policy directions to be followed by the country and chooses a large proportion of those who will implement them. If it does not have an absolute majority in parliament – as is, for example, the case of the President of the French Republic – there is not in the parliament, as we have seen, any party capable of promoting a political project that is opposite or merely different from his. In addition to fulfilling the role of president in a presidential regime, the King has the advantage of duration and independence from election. This accumulation of benefits, difficult to reconcile with the regime’s stated desire for democratization, led the monarchy first to choose the head of government from among the members of the party that came first in the elections, in 1997, and then to constitutionalize this principle, which partly secures the head of government’s independence, in 2011. In Morocco, the head of government is not a “lackey” of the head of state but cohabits with him, although the partnership is unequal. Moreover, the head of government does not necessarily have an orderly majority behind him; he only belongs to the party that came first in the elections. The ministers from the other parties are less dependent on him than he is dependent on their parties. In short, he is not in a position of strength to arbitrate and decide. Symmetrically, the King, although infinitely better placed, no longer has a central representative in the government. He dominates, rather than leads it. It follows that arbitration is difficult to issue because authority is segmented. A minister can very easily bypass or block the head of government. Under these conditions, it is easier to decide on the plan for highways than to implement their day-to-day development. It seems that the stability of the political system has been won at the expense of its effectiveness. Nobody is there to ensure the continuity and the constancy of the public policies desired by those running the state. 4.4 ISLAM AND CONSTITUTIONALISM

When addressing the history of constitutionalism in Muslim contexts, it would be misleading to start from Islam, the reference to its norms and tenets, and its institutional organization. It is not because such societies are predominantly

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Muslim that the Islamic frame of reference imposes itself, at least exclusively, in the analysis of their social and legal developments. As we hope to have demonstrated, constitutionalism is, first and foremost, a “glocal” issue in which politics and law are closely intertwined. Notwithstanding this, the study of constitutionalism in Muslim societies does have an Islamic dimension that must be accounted for.16 For most of the twentieth century, Islamic constitutionalism was subordinated to the overriding goal of building a nation-state. Thus, in the Arab context, one observes the inclusion of the objective of “creating a unified Arab state” (Art. 1 of the Iraqi Constitution of 1970), but also the primacy of “defending, consolidating and preserving socialist gains” (Art. 59 of the Egyptian Constitution of 1971). However, the failure of nationalism, the 1967 defeat, the lack of freedom, and the total lack of success of authoritarian modernization policies were all factors that facilitated the emergence of a political Islamic vision, which was partly translated into constitutional texts.17 Indeed, the return to the forefront of the religious reference was largely sponsored by the ruling regimes, something that may be called “State Islamism,” which is a technique that seeks to ensure stability for the system that coercion fails to fully provide and to give it legitimacy, therefore making Islamist demands ineffective. In fact, the dual fact of ideological convergence of nationalism and Islamism and instrumental appropriation of Islamist rhetoric by regimes in power explains the inversely proportional size of the victory of Islamist groups in the rise of the so-called “Arab Spring,” and the return to the use of Islam and sharıˆ ‘a repertoires. From this point of view, the constitutional uses of the Divine Law draw not on a Muslim conception of politics but on a natural method of policy-making that uses an Islamic frame of reference. The term “Islamic law” has become unfit to designate both the law of a Muslim majority country and a range of mechanisms that do not belong to the continuity of doctrine (fiqh) but rather to techniques specific to contemporary law-drafting and constitutionalism. A particular phenomenon is observable today, among others, in the constitutions of Muslim majority states: referencing Islam, the sharıˆ ‘a, or the fiqh. Here, it is no longer a question of codifying Islamic normativity, but, most importantly, of referring contemporary legislators to Divine Law in order to inspire their work. There will therefore be provisions making Islam the religion of the state, providing that the head of state is a Muslim or using Islamic normativity as the inspiration for positive law. With the transition movement initiated by the overthrow of the Tunisian regime in January 2011 and the beginning of the drafting of new constitutional

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texts, this issue has taken on a new urgency, especially since Islamicconservative political forces have emerged as winners of the elections. However, the concern with political consensus often seems to have prevailed over the desire for religious hegemony, and ideological pragmatism to have prevailed over the utopian ideal. One of the reasons that can help to explain the ease with which this pragmatic trend has emerged is no doubt the plasticity of the reference that is represented by the sharıˆ‘a and its ability to function as a flexible resource rather than as a set of binding rules. Many state constitutions in countries with predominantly Muslim populations refer to Islam. Generally speaking, this is illustrated at four levels: the Preamble, the determination of the religion of the state, the principle of conformity of the legislation to the principles of the religion, and the conditions to be met by the head of state. The inclusion of Islam as the religion of the state is an ancient practice that dates back to the 1950s.18 Some constitutions reserve high positions for Muslims, and access to the throne in monarchies requires Muslim parentage. Many constitutions also limit the scope of certain rights and freedoms in respect of sharıˆ‘a, as they affirm the centrality of the family based on religion and Islamic values. Numerous basic texts have enshrined the normative value of sharıˆ‘a, the principles of the sharıˆ ‘a, or Islamic fiqh, but have differed on how much space to give it. Prior to independence, with the exception of Kettani’s Reform Party project of 1954, Moroccan texts concentrated on Islam for identity, ideological, and organizational reasons. With respect to identity, it was important to assert the Islamic character of the country, especially in the face of non-Muslim colonial pressure. Article 4 of the 1908 Lisaˆn al-Maghrib draft constitution, for instance, stated that “[t]he religion of the Sharifian state is Islam and its doctrinal school (al-madhhab al-shar‘ıˆ) is the Maliki school.” However, nonMuslims who were “subjects of the Sharifian state” were considered to be Moroccans (Art. 12), although they could not compete on an equal basis for public positions (Art. 17). Later drafts proved more egalitarian or, at least, readier to guarantee fair representation to Jewish citizens (1934 Manifesto, Arts. 31–40). It was equally important to situate the legislation with respect to its Islamic background, all the more so after the colonizer’s attempts to differentiate Berber and Arab jurisdictions. In that respect, the Lisaˆn alMaghrib draft states that legislation cannot “contravene religion or the Quran” (Art. 54). The 1934 Manifesto calls for “the drafting of a single Moroccan code (qaˆnuˆn) inspired by Islamic doctrine (fiqh), Sultanate decrees, and local customs (‘amal), and the implementation of this code through sharıˆ ‘a and Makhzen courts (al-mahaˆkim al-shar‘iyya wa’l-makhzaniyya” (Section 4, Art. 2).

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Ideologically, Islam was often used as the cement of Moroccan nationalism, together with the definition of the country’s boundaries and the King’s religious status. It was generally referred to as the Ash‘arite version of the Sunni Islam Maliki doctrine. In the Lisaˆn al-Maghrib draft, Islam is the religion of the Sharifian state and the official sharıˆ‘a school is that of Maliki (Art. 4). Formerly, in the ‘Abd al-Karim Murad Memento, Islam was presented as the reason why the Sultan should not submit to European requirements: “The glory of the King cannot be achieved but through the sharıˆ ‘a and the sharıˆ ‘a has no strength but through the King” (Art. 3). Organizationally speaking, the status and the powers of the Sultan were always of prime importance. No constitution ever considered the possibility of Morocco being anything other an Islamic state ruled by a Muslim leader. The Protectorate reinforced this feature, which is unique in the context of Sunni Islam. In the Lisaˆn al-Maghrib draft, the Sultan was called “Imam of all Muslims” (Art. 6: imaˆm al-muslimıˆn) to whom all the Sultanate’s subjects owe obedience “because he is the heir to the Noble Blessing” (Art. 7: warıˆth albaraka al-karıˆma). Some constitutional drafts also address the issue of social reforms, including education, which must include Islamic institutions (e.g. the Qarawiyyin, Section 5, Art. 2 of the 1934 Manifesto) and an Islamic program (primary and secondary schools must include “teaching in Arabic, Islamic culture, and Moroccan geography”: Section 5, Arts. 6 and 12 of the 1934 Manifesto). After independence, the place of Islam and the religious powers of the King received their formal definition, which did not change until 2011. In the Preamble to the 1962 Constitution, Morocco was defined as an “Islamic state having full sovereignty.” Article 6 states that “Islam is the religion of the state, which guarantees everyone the liberty to exercise their religious affairs.” The country’s motto is defined as “God, the Nation, the King” (Art. 7). More importantly, Art. 19 defines the powers of the King: Art. 19: The King is the Commander of the Faithful, the symbol of the unity of the Nation, the guarantor of the permanency and continuity of the state; he is the protector of the sanctity of religion, the observer of the respect of the Constitution. The protection of the rights and liberties of the citizens, associations and organs belongs to him. He is the guarantor of the independence of the country and of the integrity of the kingdom within its true borders.

The King’s religiously legitimized supra-constitutional status is reinforced by the sacredness of his person: “The person of the King is sacred and his sacredness cannot be violated.” (Art. 23).

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Most importantly, Article 108, by stating that they cannot be subject to constitutional amendment, froze “the monarchical regime of the state” and “the texts related to the Islamic religion.” Although the numbering of these provisions sometimes varied, with the noticeable exception of Article 19, these provisions did not change for half a century, until the 2011 Constitution introduced a significant amendment. Usually, there are two main ways to address Islam: as a frame of reference and as a distinctive domain of competences. References to Islam in the 2011 Constitution case are both prolific and without concrete implications. Article 3 states that it is “the religion of the state,” while recognizing “the free exercise of religion.” Although freedom of conscience is not recognized in the Constitution – despite its inclusion in an earlier draft – Article 25 states that “freedoms of thought, opinion and expression are guaranteed in all their forms.” However, the predominance of Islam is not coupled with a reference to Islamic normativity (sharıˆ ‘a or fiqh). Islam, the state religion, is primarily a national frame of reference. Article 1 reads: The Nation (umma) is based in its public life on five constants consisting of tolerant Islamic religion (al-dıˆn al-islaˆmıˆ al-samaˆh), national unity with multiple tributary constituents (al-wahda al-wataniyya muta‘addida alrawaˆfid), constitutional monarchy, and democratic choice.19

The articles of the Constitution that refer to Islam almost always emphasize the principles of tolerance and openness, what Yousra Abourabi (2019) calls “Golden Mean Islam.” Thus, unlike situations where the head of state lacks religious legitimacy, one characteristic of the Moroccan constitutional system is that the identification of the Islamic normativity as a legal reference is superfluous. The 2011 Constitution is no exception. The 2011 Constitution differs from previous texts in the dissociation that it establishes between the functions of the King as “Head of State, the supreme representative, symbol of the unity of the Nation, guarantor of the permanency and continuity of the state and supreme referee between its institutions” (Art. 42) and the King as “Commander of the Faithful” (amıˆr al-mu’minıˆn). Article 41 states, in effect: The King, Commander of the Faithful, ensures respect for Islam. He guarantees the free exercise of religion. He chairs the Higher Council of ‘Ulamaˆ’, responsible for studying questions that are submitted to it. The Council is the only body empowered to give officially approved religious consultations (fatwaˆ) on matters referred to it which it does based on the principles and precepts of Islam-tolerant designs. The powers, composition and procedures of the Council are established by royal decree (Dahir, zahıˆr). The King

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exercises, by royal decree, religious prerogatives inherent to the institution of the Commander of the Faithful conferred exclusively by this article.

In other words, the Constitution distinguishes the two “bodies” of the King (Kantorowicz, 2016) and seeks to reduce the possibility of confusing the powers of the one with the other. In the course of a development that, as Hassan Rachik (2003) underlines, marks the secularization of the function of Sultan that began with the establishment of the Protectorate and was pursued by the Nationalist Movement, this allows us to imagine, over the long term, a deepening demarcation of the two functions, where the executive role of the head of state becomes even more a role of arbitration, while his role as the supreme religious authority would be exercised in a strong and extensive way. For now, however, the King exercises the powers of Commander of the Faithful in an exclusive manner. The differentiated devolution of royal powers is accompanied by a maximum definition of his powers in the field of religious regulation. The question, then, is to know what exactly the Commandery of the Faithful is. It is not the subject of either an illustrative or an exhaustive list of the powers that are related to it. We can talk in this respect of a principle of subsidiarity: everything that is not explicitly outside the religion is likely to be attached to it by the will of the Commander of the Faithful. Recent history has provided an example of this type of connection, when the King committed himself to the reform of the Family Code (mudawwanat al-usra). The regulation of this legal domain does not strictly belong to the realm of religion, but Mohamed VI placed it under the umbrella of Commander of the Faithful. One can imagine a number of areas where the same mechanism would be activated, and neither the parliament nor the executive or the Constitutional Court can do much to oppose it: freedom of conscience, abortion, death penalty, heritage, public organization of fasting in Ramadan, legality of extramarital sexual relations, Islamic finance, etc. The Moroccan system is unique in that it is able to narrow the normative field of sharıˆ ‘a. As noted by Mohamed Mouaqit (2012, 2015), it operates in a manner that is inversely proportional to the centrality of the Commandery of the Faithful. Where, as in Morocco, the symbolism of the Commandery is constitutionally strong, the normativity of sharıˆ ‘a is less politically relevant, “as if the strength of the former had a compensatory effect on the weakness of the latter.” Morocco is a case of overdetermination of monarchical order at the expense of sharıˆ ‘a order. The power of the King enhances or undermines its normativity depending on whether he wants to take advantage of it or, on

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the contrary, contain it. When it comes to nationalizing the legal order through the Islamization of its sources or defeating left-wing political forces, the trend is toward an opportunistic exploitation of this resource. On the contrary, when it comes to stemming the Islamist surge, the trend is to establish limits on the normativity of the sharıˆ ‘a through the use of the Islamic Commandery. 4.5 CONCLUSION: CONSTITUTIONALISM AND THE POSITIVIZATION OF LAW

The state is a social collectivity whose members share a specific relationship defined and structured by a normative order (Troper, 1994: 150). In that sense, the state is a hypostasis, embodying the entire legal order (Kelsen, 1960, quoted in Troper, 1994: 145); it cannot be distinguished from what constitutes it as a collectivity. On the one hand, if the state is a concept, it cannot be the object of empirical studies (id.: 7), but only of studies of a conceptual order (Wittgenstein, 1975; Winch, 1990; Hutchinson et al., 2008). Like any concept, it expresses an idea and takes on a stipulative character (Troper, 1994). On the other hand, the concept of state does not correspond to an object named “state” that one can find in its natural form. In other words, the state does not preexist its conceptual formulation: the concept of state is coextensive with the state itself (Troper, 1994: 8). None of this precludes the fact that this concept has a history (Hacking, 2002) whose empirically observable embodiments, including constitutional texts, can be studied. Moreover, this concept translates into texts, institutions, and practices whose formulations, activities, and developments can be examined. It is thus possible to simultaneously study the historical ontology of the concept and the praxeology of its sentient manifestations. The concept of constitution belongs to the concepts generated by the law. It is an essential component of any modern legal system. In its Kelsenian conception, constitutionalism corresponds to the positivist idea of a legal system made of inferior norms taking their validity from superior norms and ultimately based on a fundamental, nonpositive norm (Kelsen, 1960). In Michel Troper’s conception, the system consists of norms embedded in one of many pyramidal relationships, each crowned by a jurisdiction stating in an interpretive way the norms that stand at its top (Troper, 1994: 94). In both conceptions, constitutionalism accompanies the modern institution of the state.20 To exist, the legal system must possess efficiency and an institutional nature. Efficiency refers to the idea that the law of a community is adhered to

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and accepted by this community. The institutional character is the idea that the system, which claims its authority and supremacy, is endowed with instances in charge of regulating the conflicts born from the application of the system’s norms (Raz, 1979: 42). This is precisely what the constitutional object contributes to. Since it is the product of an authority having the power to enforce it, the constitution is the cornerstone of an effective legal system. Since it defines the authorities entitled to state the law, in a legislative or precedential manner, the constitution organizes the institutional functioning of the system it establishes. Joseph Raz (1979: 105) considers that only norm-applying institutions are indispensable for the existence of a legal system. Norm-creating institutions should be added, for at least two reasons: first, because the implementation of norms supposes the identification of already existing norms but also the creation of new norms (possibly derived from already existing norms), in which sense the norm-applying institution in charge of implementation is also, and necessarily, a norm-creating institution (as shown by Kelsen, 1960); and second, because the authority of a norm-applying institution is based upon the norm that established, that is, created, its authority. It may happen that norm-applying and norm-creating institutions coincide, but neither is superfluous. These institutions maintain relationships among themselves that are not only relationships of power but are also based on formal constraint. Both legislators and judges are bound by a logical necessity of coherence, proceeding from the objective value conferred upon certain propositions contained in legislation and rulings and in their relationships (Troper, 1994: 101).21 It is precisely because the law is systemic that norms, for example, constitutional, can exist independently of the reasons that oversaw their formulation. Frederick Schauer (1991) speaks of entrenchment. Such entrenchment allows the constitutional text to survive the circumstances of its creation and to live an autonomous life, possibly with a few amendments. The constitution is the location par excellence of Herbert Hart’s “secondary rules,” that is, habilitating rules (of recognition, change, and adjudication). In that sense, the constitution represents the very specificity of the concept of law,22 which consists of the association of primary and secondary rules. The addition of secondary rules to primary rules transforms a prelegal world into a legal one (Hart, 1961: 119). Legal validity is the claim that a rule was adopted in accordance with the methods established for that purpose; it thus concerns the adoption of primary rules according to secondary rules. However, the adoption of secondary rules itself depends, at least originally, on a factual situation: effective authority. In that sense, the rule of recognition cannot be

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legally valid or invalid. Like Kelsen’s Grundnorm – on which the logical unity of the positive legal system rests without its being itself a rule of positive law (Murphy, 2005: 215; Raz, 1979: 124) – secondary rules are not based on a criterion of legal validity, but on a criterion of effectiveness. While, generally speaking, in a legal system, a norm cannot derive its existence except from a superior norm, the constitution (or at least the constituting authority) is, specifically speaking, a nonpositive norm that authorizes the adoption of positive norms subordinated to it and does not depend itself on any lawcreating organ (Raz, 1979: 124). To summarize, the law23 is a kind of exercise of political power whose specificity resides in the nature of the relationships between legal norms (Troper, 1994: 158). This form of political power is neither eternal nor universal. On the contrary, it appeared in seventeenth- and eighteenth-century Europe, at the same time as the modern concept of state. In this positivist conception, the law and the state are coextensive. They correspond to a normative order presenting both static and dynamic hierarchies: static in the sense that a norm is valid if and only if its content conforms to a superior norm; and dynamic since a norm is valid only if the process of its creation conforms to a superior norm. Such a stipulative conception has a price: it implies that such historical experiments as feudal law and Roman law must be excluded from the concept. It also offers a valuable heuristic gain: understanding the law and the state as specific forms of political power (Troper, 1994: 196). The idea of constitution is thus embedded in this both conceptual and historical framework. Paradoxically, constitutionalism was originally, in its eighteenth-century version, based on the “theory of natural law” (“jusnaturalistic”) idea that a constitution aims to pursue a goal that is just in nature, and that this can be achieved by means of a Newtonian, mechanical structuring of the whole of society (Troper, 1994: 206–10). From the nineteenth century onward, however, constitutions were transformed into an instrument expressing the positivizing of law, through a process in which norms acquire their efficiency not because they correspond to the order of nature but because they are formulated by a political authority. Constitutions therefore became a fundamental component of the rule of law understood in its formalist version (Tamanaha, 2004: 91). In a manner similar to the codification process, through which the law is transformed into a product of legal will, constitutionalism becomes the “revolutionary” expression of a change tending to the systematization of law (Halpe´rin, 2014: 73) and to its prospective, nondeclarative usage (Tamanaha, 2004: 57). One can speak of the power-enhancing capacity of the constitution (Holmes, 1988: 233). Finally, with the affirmation of individual rights, the

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emergence of the welfare state, and the advent of constitutional review, the idea of constitution moved in a more substantive direction, addressing not only the state for the sole purpose of formal regulation but the whole of society, with theoretical horizon of individual and social justice based on natural law (Tamanaha, 2004). This positivization-cum-“jusnaturalization” movement corresponds rather to the positivizing of natural law itself. Through the phenomenon of legal globalization, it became universal. In its positivist version, constitutions became useful tools in the hands of rulers, including in authoritarian contexts where, rather than limiting the state, it was used to serve and empower the government. This is how the constitutional form took root in Muslim and particularly in Moroccan soil. This is not necessarily the same kind of constitutionalism that went on through the twentieth century, from the first projects of the early 1900s to the 2011 Constitution, as we have made clear throughout this chapter: the first phase was articulated with the sovereignty of countries facing European pressure; the second phase accompanied independence, seeking to stabilize both the “new state” (Ben Achour, 1980) and the authoritarian regime by making the state’s political authority more effective and its ideological basis more explicit (Brown, 2002: xiv); the third phase corresponded to the controlled liberal opening up of the regime, marking the advent of a new type of constitutionalism centered on good governance and human rights. Throughout this process, the constitutional text imposed itself as the indispensable instrument of the “new state’s” political and legal reform. This is a kind of “heresthetism,” that is, the presentation of choices and preferences, of a constitutional nature in our case, as resulting from obvious and necessary formal constraints (Riker, 1986). Addressing the issue of Islamic legal revivalism, Leonard Wood (2016) showed that (for example) lawyers started to consider that it was desirable to present the rules of sharıˆ‘a and fiqh in the form of positive law. This holds true with regard to the constitutional form in general and to the constitutionalizing of Islam in particular. Today it is commonly accepted that Islam and sharıˆ ‘a are better framed by constitutional texts. In that sense, the categories of constitutional law have become the ordinary channels of understanding and formulating public norms, including in the domain of Islam, with the “transformative” consequences this has on ways of thinking about institutional organization. “Non-constitutionalist constitutions,” to quote Nathan Brown (2002: 10–11), can nurture many objectives: first, the expression of sovereignty, with the constitutional form so well established today that even authoritarian regimes feel compelled to pay tribute to it, and to the democratic legitimacy that seemingly accompanies it; second, the affirmation of the ideological

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foundation of the regime, whose hypertrophied character in certain constitutions has been demonstrated by Michel Camau (1976); and third, the definition of the state’s authority, that is, its organizational description, with the purpose of effectiveness and efficiency that is characteristic of the formalist version of the rule of law. Contrary to what can be observed in other countries in the region, the Moroccan constitutional process is not characterized by the “distortion of its conceptual universe, which is that of constitutionalism, or the weak legal tenor of its organizational content” (Ben Ahmed, 1987: 19). As Brown (2002) remarks, it is rather the opposite that should be emphasized, that is, the fact that these texts have proved to be truthful descriptions of the relationships between state institutions, of the nature of the regime, and of the hierarchy of norms. Besides, the constitutional form has imposed itself, in the heresthetic manner already alluded to. The propensity to reform the constitution that formed part of the response to the Moroccan Arab Spring of 2011– the February 20 Movement – testifies to this: constitutionalism is not merely the transplantation of a model of political power organization. There exists a deeply anchored political will to base the state and its institutions on fundamental texts, according to the constitutional mood of the times.

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5 The Legal Reification of the Mind: The Development of Forensic Psychiatry in Egyptian Law and Justice

In a letter dated December 13, 1843,1 the chief doctor of Cairo Civil Hospital, Dr. Saillomy, reported that, on the French Consul’s request, he visited a certain Christophe Zambelli, a French prote´ge´ who was detained at the Consulate after his arrest and transfer by the Egyptian police for the murder of a Sardinian citizen, Mr. Biaginni, for the purpose of establishing his “state of mental alienation” (un e´tat d’alie´nation mentale). In Dr. Saillomy’s own terms: We actually found the patient in a state of non-febrile delirium (de´lire non fe´brile), and all the research we could conduct in that respect confirmed our opinion that the patient is currently affected by a bout of monomania (acce`s de monomanie) that relates to his state of detention. That is, in his delirious mania (de´lire maniaque), he is under the influence of the obsession with the idea that he deserves, and must soon endure, capital punishment. Considering that, according to reports from several people, he had already presented unequivocal signs of bouts of alienation (signes non e´quivoques d’acce`s d’alie´nation) two years previously, that he was treated last year by Doctor Cugini for delirium tremens; that indeed the immoderate consumption of alcoholic liquors in which the patient habitually indulges is a very strong predisposing cause of these mental afflictions (affections mentales), we are disposed to believe that, although Mr. Zambelli does not find himself in a state of permanent alienation (e´tat d’alie´nation permanente), he could suffer from a bout of monomania because of his immoderate consumption of alcohol, and that at this moment he is positively afflicted with a bout of monomania developed under the influence of his situation of being accused. Considering that, in the place where he is detained, the patient cannot receive the medical help that he needs, and also that long-term observation and continuous surveillance are indispensable to positively determining the normal state of his mental faculties (faculte´s mentales), we conclude that he must be transported to the Azbakiyya Establishment for the Insane 132 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.006

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(l’Etablissement des alie´ne´s de l’Esbe´kie´) where he should remain as long as his condition requires.2

This document provides evidence that, as early as 1843, the concept of “mental alienation,” as coined by the French “alienist” (psychiatrist) Pinel in 1803, was used by consular and medical authorities in Ottoman and khedival Cairo to explain some individuals’ specific condition and to justify legal decisions pertaining to them.3 Although clearly part of the legal system applicable to European citizens and prote´ge´s, and thus standing apart from the system applicable to the vast majority of native people, Mr. Zambelli’s story and the documents that account for it testify to the emergence in Egypt of new psychiatric institutions and of the modern psychiatric nosography. Addressing the issue of forensic medicine in modern Egypt, Khaled Fahmy (2018) tells us the comparable story of two parallel, though interwoven phenomena that led to the transformation of the law: the building of the Egyptian nation-state and the development of medical expertise. His thesis can be summarized as follows. In order to establish its control, the new Egyptian state needed to give its nascent bureaucracy the means and the authority to act, which supposed the development of a set of appropriate legal rules. This represented a fundamental change in the system and, consequently, in its terminology with the crafting of new concepts in the guise of ancient terms. “Having at their disposal this machinery of a modern state, the khedives were able to tighten their grip on Egypt’s population in a way undreamt of by the Mamluk warlords and never achieved by the Sublime Porte” (Fahmy, 2018: 274). The Ottoman Empire was the source of inspiration for the codes and institutions providing continuity with the ruler’s justice (siyaˆsa) that had been formalized by Islamic doctrine (fiqh). This justice was not, therefore, considered to be culturally alien or devoid of authenticity. However, “for while siyaˆsa has always been a component of sharıˆ ‘a, never before had its rules and procedures been so systematized and its records so well kept as in khedival Egypt” (Fahmy, 2018: 278). We contend that these transformations reflected the impact, through circuitous channels, including the reforms in the Ottoman Empire, of both civil law and modern scientific ways of thinking. In other words, what Egypt was undergoing in the legal domain can be best characterized by what we call the “positivization” of law and science. This holds true for the sciences of the mind and, consequently, forensic psychiatry. Although the mind was a question of medical concern in premodern, e.g. Muslim, societies and was the object of doctrinal categorizations, the very science of psychiatry and its corollary pathologies and the kinds of patient concerned were invented in the

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nineteenth century, when the mind was transformed into an object of knowledge. Egypt participated in the movement that saw the invention of psychiatry and therefore created psychiatric hospitals, specialized personnel, specific vocabulary, and scientifically relevant categories into which people suffering from “mental illness” could be placed. This dynamic had an impact on law and justice, as it gradually influenced, by way of medical expertise, the ways in which individual responsibility was assessed and sanctioned. This chapter partly follows this transformation of the understanding of the mind through the words and concepts used by Egyptian courts, from the late nineteenth to the mid-twentieth century, to characterize mental states and to attach legal consequences to them. 5.1 POSITIVIZING THE WORLD

Describing the history of law and science in modern Egypt equates to describing it in the early global world. It is indeed striking to observe the extent to which Egypt was part of a movement that was in no way confined to the Old Continent. This means that, instead of thinking “through the lens of westernization, or, in its alternative phrasing, the impact-of-the-West” (Rubin, 2011: 2), it would be better to find “an alternative to a homogenous, ahistoric modernity” (Rubin, 2011: 5). This can be found in the concept of “multiple modernities” (Eisenstadt, 2000), which addresses the indigenization of modernity worldwide. Rubin criticizes this pluralist solution based on the fact that it keeps describing modernity as originating in the West and only subsequently spreading to the rest of the world (Rubin, 2011: 5). Although it might appear counterintuitive not to recognize the continental epicenter of the phenomenon of modernity, it is absolutely true that the quest for the original merit and authenticity is futile and largely misses the phenomenon, that is, the various local and endogenous experiences of modernity (Harootunian, 2004: 39–40). This holds true for both law and science, which we want to address in general terms before turning to the specific case of Egypt. Addressing the issue of law and science in the modern world means ordering or reordering events, a` la Foucault, through the analysis of the words that were used to make them into objects of knowledge in their own production sites (Hacking, 2002: 71). This reveals, through an “archeology of knowledge,” the great divide at which point one tradition was transformed into another (Hacking, 2002: 75). Let us take two archetypical examples of such transformation. Beccaria’s treatise, Delli delitti e delle pene (On Crimes and Punishments), first published in 1764, represents a clear attempt to introduce the precision, clarity, and incontestability of mathematical calculation into

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the field of morals (Hart, 1982: 40). Such “moral arithmetic,” to use Bentham’s term, refers to the utilitarian perspective according to which Beccaria radically condemns the recourse to redemptory and exemplary penalties, advocating punishments that are subject to rational criticism. Both Beccaria and Bentham “insist on the uselessness of the traditional savageries of penal law” (Hart, 1982: 46). Both “insist that the punishment to be used should be the least which is sufficient to counterbalance the advantage men hope to derive from their crimes” (Hart, 1982: 46). As a consequence, they insist that criminal law, as devised in this utilitarian way, “should consist of general enactments of the legislature and that these should be both as comprehensive and as clear as possible and that judicial law-making and discretion even under the name of interpretation should be reduced to the minimum” (Hart, 1982: 47–8). Beccaria’s ideas, as well as Bentham’s, which are obviously the product of the Age of Enlightenment, fundamentally contrast with the Ancien Re´gime propensity to manifest the sovereign’s power through the “spectacle of the scaffold” (l’e´clat des supplices, Foucault, 1975). On the contrary, they establish a new conception of punishment that still forms the basis of modern criminal law: the principle of certainty of the penalty, according to which the efficacy of a punishment is related to advance knowledge of it; the principle of proportionality, according to which the harshness of the punishment must be proportional to the gravity of the crime, according to a mathematical scale; the principle of legality, according to which neither crime nor punishment can exist without legislation that makes them applicable to all (Ogien, 1995: 11). Another example, this time drawn from medical science, is that of sexuality. As shown by Davidson (2001: 72), there was, during the second half of the nineteenth century, “a virtual explosion of medical discussions about the sexual perversions.” Medical thinking in relation to sexual perversion was predicated upon the notion of sexual instinct, of which perversion was a functional disease. It appears from the first medical use of the concept of perversion, in an 1842 dictionary, that perversion and function were inextricably connected and mutually dependent (Davidson, 2001: 73). The AustroGerman psychiatrist Krafft-Ebing, the famous author of Psychopathia Sexualis (1886), classified anomalies of the sexual instinct into four categories, including perversion (paresthesia), which was itself divided into sadism, masochism, fetishism, and contrary sexual instinct (Davidson, 2001: 74). In order to determine functional disturbances, one had to define what the normal function was, which was, in an “unargued unanimity” (Davidson, 2001: 74), the perpetuation of the species, that is, reproduction, with the consequence that “any expression of [sexual instinct] that does not correspond with the purpose of

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nature – i.e. propagation – must be regarded as perverse” (Krafft-Ebing, 1965: 52–3). Sexual instinct, its functionality – natural reproduction – and its pathological counterpart – perversion – are all concepts that were surreptitiously adopted during the nineteenth century and eventually normalized, that is, were “taken as so natural as not to need explicit statement” (Davidson, 2001: 76). Foucault’s archeology is the method that shows how the conceptual vocabulary of “sexuality” was invented and developed. This vocabulary continued to be – and sometimes remains – pervasive in medicine and law (see Chapter 8), until it was eventually overturned by the introduction of other conceptual resources, Freudian in this case, “altering the rules of combination for concepts” (Davidson, 2001: 90) and opening up opportunities for new conceptualization. The process of positivization affected Egypt very early in the nineteenth century. Addressing both criminal law and forensic medicine, Khaled Fahmy (2018) argues that, in between one type of historical scholarship praising Egypt’s accession to Enlightenment-inspired modernity and another type lamenting the break with the authentic tradition embodied by the sharıˆ ‘a, there is a third way, examining from a “bottom-up” perspective the many bureaucratic, sanitary, administrative, and judicial practices that led to deep upheavals in the country. Instead of essentializing the sharıˆ ‘a and assimilating it into a kind of authentic Islamic normativity that had been altered by modernist transformations, he suggests an empirical perspective, historicizing the sharıˆ‘a in two ways. On the one hand, he stresses the importance of the partly ignored branch of the sharıˆ ‘a called siyaˆsa, the ruler’s justice, which completes, rather than contradicting, legal doctrine (fiqh) (p.83). On the other hand, he denies the Euro-centered account of Egyptian legal modernization, which rather underwent “a steady process of bureaucratization” (p.92) that sought to establish centralized administrative, police, and judicial control over the population. According to Fahmy (2018), although the ruler’s justice perpetuated an Islamic legal tradition, its bureaucratic methods gradually pushed Egyptian law toward a complete transformation (p.103). While creating siyaˆsa councils alongside sharıˆ ‘a courts and promulgating codes of law, Egyptian authorities did not sideline the fiqh but complemented it, in at least three ways: giving police departments and governors the power to initiate legal action; broadening the evidential system to include circumstantial evidence and reasonable doubt; and increasing deterrence through the development of prison sentences (p.125). In this way, Egyptian law “embraced quintessentially modern practices” (p.128). Fahmy (2018) addresses another issue, that of the creation of a public health service using the principles of Lavoisian chemistry to exert its control in

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matters of food and food supply. He shows how modernity, adopting a utilitarian conception, replaced the classical market-police (hisba) institution with that of public-service doctors, with an ever-growing concern for issues of hygiene, the creation of teaching institutions, and the development of market control policies (p.222). This hygienist development pervaded both city planning and medicine in mid-nineteenth-century Egypt, in a radically different manner from that of colonial India, for instance, where urban policy was designed “to seal the cordon sanitaire” (Prashad, 1994: 255), separating the colonial elite “from the swampy, malarial grounds of the native population” (Prakash, 1999: 133). In Egypt, instead, there was “a basic, fundamental belief in the possibility that the poor could abandon unhealthy practices and adopt more hygienic ones” (Fahmy, 2018: 170) and that “modern medical practices were supported by numerous verses from the Quran and hadiths of the Prophet” (p.171). Egyptians were not perceived as having a racially or religiously “non-civilizable mentality” and the country was not therefore viewed as a diseased environment. Health and hygiene were considered in terms of noncolonial reformist modernity. Science and especially medicine were mobilized by the judicial system in that respect. Fahmy shows that forensic expertise was required to play a major role in the scientific confirmation of causal links established by the police (p.257). It must be noted that, fundamentally, “the structure of the medical report mirrored the argumentative style of the siyaˆsa council” (p.266). Science, justice, and the legal uses of science converged toward a common modern epistemology with the purpose of “making Egypt more efficient and manageable” (p.268). 5.2 MODERN PSYCHIATRY

Throughout history there have been various expressions for “madness” depending on the people’s worldview and specific attitude toward it. However, psychiatry, as a specific branch of medicine specializing in “mental health” and the treatment of “mental insanity,” psychiatrists, as doctors specifically in charge of its diagnosis and cure, and psychiatric patients, as a special kind of human beings suffering from “mental illness,” do represent a transformation (Mayers, 1984: vii) – actually, an invention (Que´tel, 2009: 193) – that occurred in the nineteenth century, when “groups who represented, even exemplified, social and physical disorder, were brought under the control of an increasingly rationalized and expanding State” (Mayers, 1984: vii). This does not mean that the subject of madness had not been intellectually addressed earlier but mainly that “mad people and madness had [hitherto] walked separately” (Que´tel, 2009: 193). It should be stressed that

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the subject of madness was deeply influenced by the Age of Enlightenment tendency toward the mathematization of nature, which in medicine took the form of nosologies, including, for example, a typology of “the lesions of the understanding” (Boissier de Sauvage, quoted in Que´tel, 2009: 213), and of treatises systematizing the issue of madness (see Le Camus, La Me´decine de l’esprit, 1753, and Battie, A Treatise on Madness, 1758). England was in many respects a model, as it had built hospitals specialized in the treatment of “lunatic or mad persons,” like Bedlam and, later, St. Luke, where “the study and the practice of one of the most important branches of medicine” could be carried out (Battie, quoted in Que´tel, 2009: 234). Although the word “psychiatry” was coined around 1802, what can be called the birth of psychiatry around the 1800s appears at first glance as a mere episode. Indeed, it does not correspond to a radical emergence or to the production of something purely new. And it cannot be assimilated with the creation ex nihilo of a medically-inspired discourse on madness. The latter pre-existed it for a long time. (Swain, 1976: 1217)

With Philippe Pinel, head physician at the Salpeˆtrie`re hospital from 1795 to 1826, however, “positive psychiatry” (and some of its associated concepts, like “mental alienation” and “alienist”) found a prestigious father, who established psychiatry thanks to a major theoretical breakthrough involving “a therapeutic relationship with the [alienated] subject who is somehow aware of his alienation and defends himself against it” (Swain, 1976: n.102). In this new way of thinking, mental alienation was no longer considered an absence of reason but a “simple disturbance, a simple contradiction within reason” (Hegel, 1817, as quoted by Que´tel, 2009: 254). The next step in the development of psychiatry came with the development of institutions specifically devoted to the insane, asylums. In the French context, which was also a major source of inspiration in Egypt until the British Protectorate in 1882, Jean-Etienne-Dominique Esquirol deserves a special mention, since he “wrote after the establishment of the ‘principles’ developed in [Pinel’s] Treatise on Mania; but also before the definite transformation of the ways and means of a moral treatment gradually induced and imposed through the experience of the grand hospital, which eventually prevailed at the Salpeˆtrie`re” (Gauchet and Swain, 1980). One of the major outcomes of this process is the idea that madness can be cured and that lunatics are patients who must be protected and treated, for example, by their isolation in a rational environment managed by an “alienist” (Khouri, 2005: 106). This idea created an ambiguity: “lunatics must be prevented from causing harm (including to themselves), but they must also be treated”

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(Que´tel, 2009: 277). Consequently, two types of authority were called upon to make statements regarding their cases: on the one hand the administrative and judicial authorities and on the other the medical authorities. This ambiguity has continued to pervade the status of the insane until today. Under Muhammad ‘Ali’s son ‘Abbas, who reigned as the Ottoman governor of Egypt from 1848 to 1854, the Nasiri “moristan” (Desgenettes, 1809–28), which had been founded by the first Mamluk dynasty, fell into ruins and its inmates were progressively transferred into one specialized department at the Azbakiyya general hospital (the same as in the Zambelli story), where they stayed until the creation of the Bulaq asylum in 1856 and then the al‘Abbasiyya asylum hospital in 1880. This transfer also suggests the transformation of lunacy from, according to Western-psychiatry-trained alienists, its assimilation with possession to the clinical conception of it, comprising a specific etiology, diagnostic, and therapy (Khouri, 2005: 107). From that time onward, psychiatry in Egypt developed at the pace of psychiatry in Europe, which was characterized by the creation of a new care system claiming to be based on a new medical science. Psychiatry was developed by both French and Egyptian doctors, together with Muhammad ‘Ali’s project of modernizing Egypt as a means to consolidate his dynastic power (Fahmy, 1997). With the British Protectorate (1882) came British alienists, who brought to Egypt the experience of nonrestraint and neuropsychiatric orientation characteristic of their asylums, together with the Victorian legislation that governed psychiatric practice in the United Kingdom (Khouri, 2005: 113). “The British self-consciously, deliberately and systematically introduced to Egypt specific principles and forms of treatment – medical, legal and administrative – to deal with the insane” (Mayers, 1984: ix). The number of asylum inmates was taken by many alienists as a criterion of civilization, and Egypt scored poorly in that respect: 300 inmates, in 1889, compared with 84,407 in the UK (Khouri, 2005: 114). One of the main principles of nonrestraint was that lunacy could be cured. British alienists nurtured the hope that the pathway to civilization would make it necessary to build many more psychiatric hospitals and that there would be a progressive change from “‘lunatics’ to ‘patients’, from the treatment of insanity to the treatment of mental disease” (Khouri, 2005: 117). This is how, under Warnock, who created a Department of Lunacy within the Ministry of Interior Affairs, lunacy became the sole competence of the alienist who was alone in being capable of assessing an individual’s “dangerousness.” The latter development explains why, “on the one hand, psychiatric expertise was introduced into Egyptian courts and, on the other, leaflets were produced aiming at increasing awareness among prison, school, conscription

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and police directors so that they could distinguish between ‘simulated’ and ‘true’ diseases” (Khouri, 2005: 115). There has always been a close relationship between psychiatry and law. As early as 1838, French law decreed that public asylums were to be administered and staffed by specialists appointed by the Ministry of Interior. The director of a State asylum was henceforth obliged to reside in the establishment and ensure that the provisions of the law with regard to the admission and discharge of patients were fully carried out. Admission was either compulsory by order of the police if the patient was dangerous, or else voluntary. Voluntary admission required a doctor’s certificate testifying to the mental condition of the patient. (Mayers, 1984: 6)

This law was the model for other European legislation, including that in the United Kingdom (1845). In the early twentieth century, a circular established that any person who had committed a misdemeanor was to be suspected of insanity and thus detained in a public asylum (Mayers, 1984). Nineteenth-century medical expertise in Egypt contrasted radically with the use of expert witnesses in institutions where the fiqh was applied. According to Fahmy (2018: 257–61), four features distinguished siyaˆsa medicine from sharıˆ ‘a expertise: First, this new medical expertise . . . was based on determining a causal link between visible bodily injury, on the one hand, and organ malfunction or death, on the other. . . . [The] second feature of siyaˆsa medicine was its textuality. . . . The third contrast (was that) medical experts were one of the central, permanent components of the siyaˆsa system. . . . The fourth and final difference between siyaˆsa medical expertise and sharıˆ ‘a court medical expertise was that the former was not deployed to uphold social hierarchies [and worked] as a substitute for torture.

Psychiatric expertise was part of this broad trend toward forensics. As we observed with the Zambelli case introducing this chapter, modern psychiatric categories were used by medical experts as early as 1843. In a case reported by Fahmy (2018: 110), a doctor from the Azbakiyya Civilian Hospital speaks of “strong psychological tribulations (al-infi‘aˆlaˆt al-nafsaˆniyya al-shadıˆda)” among the possible causes of miscarriage.4 And in another case reported by Fahmy (2018: 259), a forensic doctor is sent to check whether the deceased’s wounds were self-inflicted and thus corroborate his sister’s testimony according to which he had been “very depressed” in the days prior to his death. Forensic medicine, including psychiatry, had entered the practice of Egyptian law. Whereas “any lunatic, accused of having committed some offense, could only be admitted to the asylum by written order of the Parquet” (Mayers, 1984:

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158), the determination of insanity and of degrees of dangerousness was soon to be obtained from a medical doctor (Mayers, 1984: 160). The same trend to authorize only alienists to diagnose cases of insanity “also extended to judicial proceedings involving non-criminal cases” (Mayers, 1984: 161), like Probate Councils responsible for cases of juvenile inheritance and guardianship. 5.3 EGYPTIAN CASES

The Egyptian legal system as we observe it today is the result of a process that has lasted for over two centuries. During the nineteenth century, Ottoman governors, viceroys, and khedives strove to give the legal and judicial system a “modern” tone largely inspired by Western models (Hill, 1987; Reid, 1981; Ziadeh, 1968; Botiveau, 1989; Brown, 1997b; Dupret and Bernard-Maugiron, 2002). In less than a century, this system gradually evolved “into a much more complex and sophisticated type of justice administered by a fully-fledged judiciary” (Peters, 1999: 379), before being replaced by a French-type court system. From the late 1870s onward, mixed courts (mahaˆkim mukhtalita) and indigenous courts (mahaˆkim ahliyya) operated, together with religious courts (mahaˆkim shar‘iyya), mainly for matters related to personal status. The latter were progressively stripped of their jurisdiction and, by 1956, were finally absorbed into a unified system of national courts. The nineteenth century was also a time of intense codification. In Egypt, decrees and laws regulated criminal matters as early as 1829. Although a new penal code was promulgated in 1852 that was largely identical to the 1851 Ottoman Penal Code (Peters, 1995), French law had a massive input into Egyptian law at the time of the promulgation of the Mixed and Indigenous Codes of 1876 and 1883 (Hoyle, 1986, 1991; Goldberg, 1998).5 Other codes, written by French and Italian jurists for the most part, followed the same trend. The Civil Code promulgated in 1948 constituted an attempt to establish a civil law that took the systematic form of a code but asserted its adherence to Islamic legal principles. New laws were passed continually and judicial institutions, crowned by the Court of Cassation (created in 1931), the Supreme Constitutional Court (created in 1979), and the Supreme Administrative Court (1946), produced an impressive body of jurisprudence. In this process, the law became indisputably Egyptian, that is, a national law whose formal structure brings it into the family of Roman-Germanic civil law. For the purposes of this chapter, we have selected four cases showing the existence and spread of modern psychiatry and its vocabulary into Egyptian courts, where they were transformed into forensic categories. We leave for later study the many cases we found that show how classical fiqh concepts were

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endowed with new meanings. These cases are of course not representative in themselves of a general phenomenon in Egyptian legal history and we should remain cautious about overextrapolating. However, this sample provides a fair idea of three interrelated tendencies: the creation of new institutions, the invention of a new legal language and style, and the development of psychiatric forensics. In a ruling dated March 17, 1897, the Mixed Court of Appeal of Alexandria issued a ruling regarding a certain “Comte Firmian,” an Austrian prote´ge´ who was accused of the murder of a certain Panayotti Pappa. As we rely on excerpts of this ruling published in the Journal des Tribunaux de la Re´forme en Egypte (Vol. 22, 1896–7), we do not have access to the details of the case but only to what was considered significant and relevant for selection and publication. Here follows the translation of these excerpts originally written in French. SUMMARY Murder; Dismissal order; Public liability The dismissal order from which the perpetrator of a murder benefited before the criminal court cannot bind the civil court, from the point of view of the pecuniary compensation which could be granted to the victim’s beneficiaries, especially since the report from the doctors responsible for the mental examination of the accused did not formally and absolutely conclude that he was not responsible. COUNT VIRGILE FIRMIAN Av. Fatica, PANAYOTTI PAPPA HOUSES AND CONSORTS Av. Sterlin, against GEORGES NUNGOVICH Av. Lemoine THE COURT ... On the responsibility of Count Firmian; Whereas while appreciating at its true value the report by the doctors charged by the Consulate of Austria-Hungary of Cairo to examine the mental state of Count Firmian, as well as the dismissal order, made by the Public Ministry of Vienna and from which Count Firmian benefited, it should be borne in mind that it was then a question of assessing the mental state of an individual accused of murder; [Whereas] the mental illness of the current respondent could modify this dismissal order (which moreover is not binding on the mixed jurisdiction) without excluding any civil responsibility, responsibility that may be considerably reduced but which subsists given that there is no clear proof that the perpetrator of the act prosecuted by the law was unaware of his actions;

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Whereas the Court, by examining the facts and circumstances of the case and studying the medical report, could not acquire absolute certainty that Count Firmian, at the time when he killed Panayotti Pappa, had no awareness of what he was doing; [Whereas] the doctors themselves take care to note in their report all the difficulty presented by the examination and appreciation of the mental state of a person whom they did not know, who had come to Cairo as a tourist only a few days before the unfortunate event and on the previous life of whom they could collect only very incomplete data; [Whereas] it has been seen that Count Firmian was an eccentric man, but that nothing, absolutely nothing, suggested, until the evening when he killed Pappa, that we were dealing with a man deprived of his reason; [Whereas] the doctors opined, inter alia, that the complete cure of Count Firmian would be unlikely; that on this point however their appreciation seems to be contradicted by the facts, since it is not disputed that currently he is not locked in an asylum and that he is not even provided with a curator; Whereas, in these circumstances, the Court believes that it should rally to the appreciation of the first judges and rule out the absolute irresponsibility of the respondent in civil matters; ... FOR THESE REASONS: Confirmed. Alexandria, March 17, 1897. President, M. BELLET This excerpt reflects a typical case of a Mixed Court ruling. Presided over by Chief Justice Bellet, a French judge appointed to the Mixed Court of Appeal of Alexandria,6 it is written in French and uses the language, style, and lexicon of “Civilist” positive law. It is published in a journal that chose cases which its editors considered important and representative, through excerpts selecting what was taken as significant within these cases. The presentation of facts is limited to what is necessary for the understanding of the case and the stress is put on the legal principles on which the court based its argument. Each case is preceded by a summary concentrating on these principles. The fact that the case was published in a kind of compendium is in itself interesting, as it reflects a specific mode of law-making that proceeds in a cumulative, systematic, codebased, and judicially developed manner. Regarding the issue of the psychological condition of legal subjects, this case reveals the use of specific lexicon and institutions. It speaks of “mental state” and “mental illness,” a language that belongs to nineteenth-century psychiatry. It considers people “unaware of their actions” and therefore “civilly irresponsible,” which refers to a specific, Kantian conception of action, agency, and responsibility. It refers to a “medical report,” which is

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characteristic of a positivist conception of nature, assessing the mental state of the person on the basis of “data,” which refers to a certain conception of evidence. It characterizes a person as “eccentric” and “[non]deprived of his reason,” something that refers to an emerging taxonomy. This report is drafted by “doctors” speaking of “complete cure,” which refers to the idea that lunacy is an illness that can be medically treated. It opposes “medical opinions” and “facts,” referring to the principle of positive law according to which judges are not bound by medical expertise. Finally, it refers to a specific institution called an “asylum,” that is, a medical institution dedicated to the “treatment” of “mentally ill” patients (see Mayers, 1984). In a ruling dated November 23, 1904, the Mixed Court of Appeal of Alexandria issued a ruling regarding a certain Dr. Be´rard, whose nationality, though certainly not Egyptian, is unknown (but probably French), who had issued a forensic report regarding the “Demech spouses,” who claimed to have suffered intellectual and moral disorders following a railway accident from which they escaped without any apparent bodily damage. As with the former ruling of the Mixed Court of Appeal of Alexandria, we rely on excerpts published in the Journal des Tribunaux de la Re´forme en Egypte (Vol. 30, 1904–5). Therefore, we have access only to excerpts of the ruling, which we translate from the French. SUMMARY Expertise; delicate work; research needed; costs and fees; contestation; inadmissibility To make it the basis of a challenge to his costs and fees, one cannot fairly reproach an expert charged with the most delicate and difficult mission of trust (such as the examination of intellectual and moral disorders caused to people by a railway accident), for not having limited his task and for having yielded to personal as much as professional scruple which led him to make a decision only after long, patient and manifold searches. RAILWAY ADMINISTRATION Av. Schiarabati Bey, against EDGARD BERARD Av. Sheridan THE COURT, Whereas the expert assessment made and reported by Dr. Be´rard, in execution of the summary order of August 4, 1903, was entrusted to him on the occasion of an action for compensation directed by the Demech spouses against the Railroad Administrations; that following the catastrophe of the railway from Alexandria to Cairo, which occurred on June 3, 1902 near Hadra station, the Demech couple who were on the train where the collision occurred, but who seemed to have experienced no apparent damage, however

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claimed that their state of health had been profoundly altered by this accident and that this had resulted in a notable weakening of their forces and faculties and in a serious threat of the abbreviation of their lives; Whereas it was therefore not the role of the assigned expert to find bruises, injuries or fractures, or to diagnose a specific disease, clearly characterized by manifest symptoms, but to study the general state of the complainants, to collect and verify the facts of physical suffering and of intellectual and moral disorder alleged by them, to compare their present state with their previous state and to declare with certitude whether the observed disorders could be attributed exclusively to emotion and to the shock caused by the accident of June 3, 1902; Whereas, in such a study, in order to reach a certain and reasoned result, the expert must necessarily carry out a prolonged examination for a certain time, attentive and repeated visits, and also resort to multiple investigations and even testimonies of relatives of the two patients; Whereas in the presence of the reported expert assessment and the minutes which preceded it, one cannot arbitrarily qualify this study as too long and too meticulous; [Whereas] one cannot fairly reproach an expert charged with the most delicate and difficult mission of trust, during a debate of exceptional importance for both parties, for not having limited his task and to have yielded to personal as much as professional scruple, which led him to make a decision only after long, patient and manifold searches; [Whereas] the tax order made by the President of the Court of Alexandria and maintained by the judgment of June 18, 1904, pronounced in accordance with the provisions of art. 87 of the Code of Civil Procedure, therefore seems sufficiently justified; FOR THESE REASONS: Relating the law applicable to the appeal, declares it ill-founded; accordingly confirms the judgment under appeal and orders the appellant to pay the costs. Alexandria, November 23, 1904. President, A. KORIZMICS. This is again a ruling issued by the Alexandria Mixed Court of Appeal, under the presidency of Chief Justice Korizmics, a judge holding Austrian citizenship.7 What was said about the former case in terms of publication, language, and selection can be repeated here. It reflects the acculturation of the Egyptian legal system, which became, through the establishment of such Mixed Courts, more and more influenced by French legislation (including the partition of legislation into a specific set of codes8), the development of case-law and its organization in compendia systematizing the legal principles on which rulings are made, and the development of a “Civil law” judicial style (characterized with the formula “whereas,” corresponding to the French “attendu que” and the Arabic “haythu anna”), with also a European and even an American contribution.9 Interestingly,

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this ruling also refers to judicial fees, which are established according to the Mixed Code of Civil Procedure and follow a graduated scale. The same holds true for the expert, who is “assigned” by the court, whose “report” is submitted in writing, and whose conclusions are the outcome of forensic investigations. One can point to several features of the ruling and beyond to the whole legal system in their relationship to psychiatry. There is, first, the insistence on medical expertise, which should be adequate to the assessment of the parties’ “intellectual and moral disorder” and can therefore require a “prolonged examination” to reach “a certain and reasoned result.” Second, forensic examination is the outcome, in the field of mental disorders, of an investigation of a person’s “present state” who is “sick” and has his/her “faculties weakened,” as compared to his/her “previous state.” Third, this is the vocabulary of psychiatry at a certain point in its “ontological history,” when psychological troubles were referred to as “moral.” On December 13, 1927, the Indigenous Court of Appeal of Egypt issued a ruling in an inheritance case. As with the cases published in the Journal des Tribunaux de la Re´forme en Egypte, we do not have access to the complete ruling of the court but only to some legally relevant excerpts published in the Arabic journal al-Muhaˆmaˆ (No. 8(4–5), January–February 1928), which we translate from the Arabic. The Muhama Journal, January-February 1928 P. 492, Ruling 321 Indigenous Court of Appeal of Egypt December 13, 1927 Appeal – Acceptance – Insanity (junuˆn) of the appellant after the verdict is announced – Intermittent insanity – Its provision (hukmuhu) – Request for it to be evidenced by the [Public] Prosecution – Obligation to state the facts (bayan al-waqaˆ’i‘) – Their acceptance – Appendix to the case Legal principles 1- Insanity is of two types: permanent (mutabbaq) and intermittent (mutaqatti‘). The provision of the law in this latter type is that the actions (altasarrufaˆt) that take place in a state of recovery (haˆlat al-ifaˆqa) are to be completely governed by the provision for the sane person (al-‘aˆqil). If the verdict is announced to the insane (al-majnuˆn) while he is in a state of recovery, and he remains in this state until after the deadline for the appeal, his right to it is lost. 2- The facts a party wants to establish as evidence must be the facts of, and related to, the case (Articles 177 and 178 [of the Code of Criminal] Procedure). Therefore, one cannot accept as evidence the request by the heirs of the insane to establish the return of insanity to their legatee, as long as they do not indicate the date of the return of insanity to their legatee, and not the established facts that occurred to him and indicated his insanity.

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The Court: On the subsidiary plea regarding the non-acceptability of the appeal because of its reception after the deadline. Whereas there is no dispute between the litigants about [the fact] that the appealed judgment was announced to the person against whom the judgment [was issued], the legatee of the appellants, on March 10, 1924, and that the legatee died on August 1, 1925, and that the heirs did not appeal it until December 14, 1925. Whereas they claim that their legatee was, during the period that elapsed from the date of the announcement and before, in a state of dementia (‘uth), until he passed away. They rely for this on the certificate they submitted which is extracted from the records of the asylum (hospital for the insane, mustashfaˆ almajaˆdhıˆb) dated December 28, 1925, which indicates that Michael Salameh (legatee of the applicants) was in the aforementioned hospital afflicted with “mania” (maˆnyaˆ), on March 29, 1922, that he was discharged from it in April of the same year, and that he returned to it on July 24, 1924, and stayed there until August 18, 1924, when he left in an improved state (mutahassinan). Whereas insanity is of two types: permanent and intermittent. The provision of the law in this latter type is that the actions that take place in a state of recovery are to be completely governed by the provision for the sane person. Whereas it appears from the certificate (shahaˆda) from the hospital where he died, he mentioned that the condition of insanity inherited by the appellants was of the second type, i.e. a sporadic insanity. Therefore, his actions that took place before the insanity returned to him, that is, until the day he entered hospital the second time, which is on July 24, 1924, must be considered as legally valid. And [whereas the period that] extended from the date the judgment was announced to him on March 10, 1924 to that date, was the legal period for the filing of the appeal; and it was not filed, so that the appeal took place after the deadline. Whereas the appellants claim that the return of madness occurred throughout the appeal period, even before the judgment, and they demand that this be established by testimony (bi’l-bayyina). Whereas they do not prove precisely the date of the return or the tangible facts (al-waqaˆ’i‘ al-mahsuˆsa) that occurred in relation to him, from which one could determine that there was an indication of an absence of understanding, so that, if this were true, they would not have been late in requiring his return to the hospital as it was. Whereas, accordingly, the subsidiary plea is valid and must be accepted. (Appeal of the heirs of the late Mikhail Effendi Salameh, which was attended by Mr. ‘Abd al-‘Aziz Bey Malkiya against ‘Atiya Effendi Ibrahim, and His Excellency Mr. Labib Effendi [?], No 494 of the judicial year 43. Department of His Excellency Husayn Darwish Pasha, and on his side Monsieur Soudan and His Excellency Mustafa Muhammad Bey, Advisors) This ruling is issued by Egypt’s Indigenous Court of Appeal. Indigenous Courts were set up shortly after the creation of the Mixed Courts and dealt with cases that concerned Egyptians only. They were endowed with their own

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codes, although these consisted largely of Arabic translations of the Frenchwritten Mixed Codes.10 Through the Muhaˆmaˆ journal, which worked as a compendium, selecting the most relevant cases, these court rulings provided cumulative case-law on the basis of which Egyptian law gradually developed. To quote and summarize Leonard Wood (2016: 75), there were seven ideological tenets underlying this publication of the Egyptian Sharıˆ‘a Bar Association, whose first issue was released in September 1929: regret for the “lethargy that had ostensibly infected Islamic juridical science”; admiration for European juridical science; the argument that “Franco-Egyptian laws” were not suitable for Egypt; the sharıˆ‘a’s comprehensive suitability for all places and eras; the necessity of reforming Islamic jurisprudence; “the view that Islamic positive laws should replace Egypt’s Franco-Egyptian laws” through revivification, reorganization, and codification; and the assignation of responsibility for this task of “Islamizing” the legal system to jurists. This journal became the main vector through which the rules of the sharıˆ‘a were “organized into manifestly European and Franco-Egyptian categories” (Wood, 2016: 86). The style of the ruling reflects the style of Mixed Courts rather than that of, for instance, the Council of Judgments (majlis al-ahkaˆm) that was at work until the creation of the Indigenous Courts.11 The ruling is introduced with a summary of the main legal principles on which it is based and with keywords allowing it to be indexed. It is structured through “whereas” paragraphs presenting the building blocks of the legal reasoning that led to the Court’s decision. The lexicon is already that of present-day Egyptian law, which indicates that the stabilization process was already completed by the late 1920s. Regarding forensic psychiatry, this ruling consists of old terms invested with new meanings (e.g. “junuˆn,” which is better translated by “insanity” than by “madness,” and whose nosology is established, between permanent and intermittent; the classical “‘uth,” which takes the modern meaning of “dementia” in contemporary psychiatric nosology). It is also made up of new terms directly transcribed from ancient Greek and Latin, like “mania” (maˆnyaˆ), which mark a clear departure from the terminology in use in the classical fiqh.12 The use of these terms expresses a movement of legal scientizing, with systematic recourse to forensic expertise. It also reflects the emergence and transformation of psychiatry, which is a specifically modern medical science. In that respect, the ruling illustrates the conception of insanity as a disease to be cared for in a dedicated hospital (the asylum, i.e. a hospital – mustashfaˆ – for lunatics – al-majaˆdhıˆb), a disease with states (“haˆla”) that can improve (“mutahassinan”) and from which one can recover (“al-ifaˆqa”). The High Probate Council (al-majlis al-hasbıˆ al-‘aˆlıˆ) issued a ruling on January 11, 1931, in a case of alimony involving a man hospitalized for mental

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disorders. We do not have the complete ruling but only excerpts published in al-Muhaˆmaˆ (No. 12(7), April 1932), which we translate from the Arabic. High Probate Council 308 January 11, 1931 Interdiction – for dementia (‘uth). Paranoia (al-baraˆnuˆyaˆ) disease. Among mental illnesses. Necessity of interdicting (hujr) the sick person (al-marıˆd). The legal principle The disease of paranoia is a chronic (muzmin) mental illness (marad ‘aqlıˆ) known as delirious madness (al-junuˆn al-hadhayaˆnıˆ) and it is always accompanied by delusions (tasawwuraˆt) and hallucinations (takhayyulaˆt) according to which he – i.e. the patient – is persecuted (mudtahad) by others. Delirious means that this may even be from people who are far away from him, and it may be accompanied by delusions of greatness (‘uzma) and importance (ahammiya). He may imagine that he is a great man or that he is a king who must be obeyed and respected. This is accompanied by a lack of mental powers (al-quwaˆ al-‘aqliyya). The person who is afflicted with it must be interdicted. The Council Whereas the attorney of the appellant urges the Council to say that his client is detained in the asylum (hospital for the insane, mustashfaˆ almajaˆdhıˆb) although he is not afflicted by (a kind of) madness (laysa lahu jinna) that requires him to be so detained. Whereas, the Council considered commissioning the [Public] Prosecution to inquire from the asylum about the condition of the appellant and the mental illness that he might have. The response came that the man is afflicted by the disease of paranoia, a chronic mental illness known as delirious madness and always accompanied by ideas and hallucinations that he – i.e. the patient – is being persecuted by others. Delirious means that this persecution may even be from people who are far away from him, and it may be accompanied by ideas of greatness and importance. He may imagine that he is a great man or that he is a king who loves to be obeyed and respected. All this is accompanied by a lack of mental powers. However, his attorney insisted on asking that an examination (kashf) [be conducted] on him and that his case be investigated (tahqıˆq) by a court forensic doctor (bi-tabıˆb shar’ıˆ al-mahaˆkim). The Council acceded to his request and appointed the forensic doctor to visit him. The report from the psychiatrist (the doctor for the insane, tabıˆb al-majaˆdhıˆb) arrived. He tested (ikhtabara) the man’s condition (haˆla) and he interviewed him for a long time in the

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presence of the attorney who represents him. The result was that the man was undoubtedly crazy. Whereas, therefore, the appealed decision must be sustained. Whereas the appellee Muhammad ‘Abd al-Hafiz pledged to the Council that he would pay monthly to his father’s wife, Mrs. Khadija, half a measure of wheat and one pound for their alimony, to her and her daughter Siham, who are provided for by the interdicted person, and that he would also pay them one Egyptian pound every four months for their clothing. Appeal of ‘Abd al-Hafiz Muhammad Hisab against Muhammad ‘Abd alHafiz No. 86 of the year 1929–1930, with its original membership except that His Excellency Sheikh Taha Habib replaced His Excellency Yusif Bey Bashtli, Member. This ruling is issued by a Probate Council. Probate Councils (al-majaˆlis alhasbiyya) were created in 1873 by Khedive Ismail as small-scale jurisdictions in charge of the financial interests of people lacking full legal capacity, such as minors and the insane. These councils were included in the system of indigenous courts, and authority originally belonging to the sharıˆ ‘a judiciary was transferred to them. Their jurisdiction was enhanced in 1896 and 1925 (Shaham, 1997: 12; Wood, 2016: 33). Written in Arabic by a judicial institution whose competence was encroaching on that of Sharıˆ ‘a Courts, the ruling follows the style of Mixed and Indigenous courts. It is probably one of the most revealing cases demonstrating the transformation of sharıˆ ‘a-based provisions into Egyptian positive law. Its publication in the Sharıˆ‘a Bar Association Journal shows how worthy of interest these court rulings were for lawyers in the Islamic court system.13 This ruling explicitly refers to the institution of forensic medicine, using the term “court forensic doctor” (tabıˆb shar‘ıˆ al-mahaˆkim) to designate the “psychiatrist” (tabıˆb al-majaˆdhıˆb) in charge of “investigating” (tahqıˆq) and “examining” (kashf) the man’s “mental powers” (al-quwaˆ al-‘aqliyya) and “condition” (haˆla) in order to establish a “report” (taqrıˆr). This clearly concurs with what Khaled Fahmy (2018) established regarding the changing nature of forensic medicine in Egypt (see Section 5.1). It also exemplifies the “profound changes in the fields of law, medicine, and politics that Egypt had witnessed [. . . which translated into the alteration] of such terms as mahkama, majlis, qaˆnuˆn, shar‘iyya, and siyaˆsa” (Fahmy, 2018: 270). In this process, “shar‘ıˆ” developed beyond the predicate “related to the sharıˆ ‘a,” acquiring the meanings “legitimate” and “legal.” Regarding psychiatry itself, new terms are used beside older ones. This is the case with “paranoia” (al-baraˆnuˆyaˆ), which is presented as a “disease” (marad)

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with a nosography: “chronic” (muzmin), with “delirious” (hadhayaˆnıˆ) episodes, accompanied by “delusions” (tasawwuraˆt) and “hallucinations” (takhayyulaˆt) of “persecution” (mudtahad), “greatness” (‘uzma), and “importance” (ahammiya).14 In other words, late-nineteenth-/early-twentieth-century psychiatric vocabulary has permeated not only medical circles, embodied by the forensic doctor, but also the judiciary. Incidentally, it shows the extent to which medical reports have a double nature, both scientific and legal, intended to establish their truth value for all judicial purposes (Dupret, 2005). 5.4 CONCLUSION

Khaled Fahmy’s (2018) book on Islamic law and forensic medicine in modern Egypt is a model of a historically based argument regarding the fundamental legal changes that Egypt underwent from the early nineteenth century onward. However, in his desire to restore balance to the idea that we have of the law of the period and, in particular, its relationship with the tradition of sharıˆ ‘a and with Western influence, he goes one step too far and ends up throwing out the baby with the bathwater. Eurocentric, Islamist, and Foucauldian theses all leave a lot to be desired, each in their own way, by tending to neglect the continuity of which the ruler’s justice (siyaˆsa) was part, and Fahmy precisely and rightly opposes this: no Egyptian legal Middle Ages, until the massive transplantation of European law (which should itself be strongly qualified); no radical break with authentic Islamic tradition, whose heritage would have been brutally and painfully erased; no dislocation of the Islamic discursive tradition by the Leviathan of the modern state. The question is to assess whether it was necessary, in order for Fahmy to present and demonstrate this thesis, to overlook the obvious. If local factors prevailed over exogenous factors, in the choice of a modern state of a bureaucratic type, endowed with codified positive law and a three-level judicial system, centered on the materiality of the evidence, on the utilitarianism of the penalties, and on the control of the population, the fact remains, obviously, that among the available resources and models – most certainly through Ottoman mediation (itself in a phase of complete reform) – the French positivist model played a major role. It was neither a colonial nor a really imperialist encounter but the need, stimulated by local developments, to seek sources of inspiration and forms of response, in vogue at the time, likely to contribute to the establishment and development of an independent modern state. These sources and these forms were part of the “Civilist” legal dynamics engaged in Europe toward the end of the eighteenth century, what could be called the movement of “positivization of the law,” whose dissemination gradually affected the

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whole world, beginning with the Ottoman Empire of the Tanzimat. In other words, the use of civil law doctrine, of the codified form, and of law as a means of governance were not ends in themselves but the route perceived to be necessary for the construction, in a spirit of continuity, of the modern Egyptian state. As illustrated in the Zambelli case which opened this chapter, the categories of modern psychiatry were already in use in mid-nineteenth-century Egypt. As argued by Fahmy (2018), positive law and a centralized judicial system were operating long before the creation of Mixed and Indigenous Codes and Courts. This means that profound changes were at work, contrary to what is claimed by a contributor to the Livre d’Or arguing about the legal chaos prevailing in Egypt before the judicial reform (Pangalo, 1932: 65). However, the adoption of these codes and the creation of these courts proved crucial to the evolution of Egyptian law, both procedurally and substantially (Lendrevie, 2004, 2008). Whereas they prolonged what had been initiated by the ruling dynasty throughout the century, they also achieved a radical break in style and content. This had an impact on institutions, techniques, lexicons, and epistemology. This passage to modernity, which was desired, designed, and implemented by the Egyptian rulers and elite, created new “actants” (Latour, 2009), among which codes and judicial precedents were prominent, along with new kinds of institution and people (Hacking, 2002: 103ff.): public prosecutors, forensic psychiatrists, mentally ill people, criminals. By the time of the fall of the monarchy, the system was fully equipped and firmly established. The Egyptian Court of Cassation (mahkamat al-naqd) was created in 1931 to review all matters falling into the jurisdiction of Indigenous Courts. With the unification of the judicial system in 1956, all civil courts were placed under its control, with the exception of the Council of State, created in 1946 to adjudicate in administrative matters. Once the Court of Cassation had been created, we have access to the legal principles it established. The sociohistorical study of such case-law has still to be conducted, but it clearly appears from a rapid review of it that the language and, beyond that, the modes of working and reasoning were settled (see Dupret, 2011), as shown in the following excerpts: Insanity or mental deficiency referred to in Article 62 of the Criminal Code and according to which the exclusion of liability is conceived are those [states] that make the criminal at the time of committing the crime unconscious of, or unable to make a choice in, what he does. The assessment of this is a question that depends on the facts of the petition, on which the trial judge decides discretionarily (Request N˚. 510 of Judicial Year 28, June 9 1958 Session).

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A person suffering from the state known as ‘psychotic personality’, which, from the scientific point of view, is considered as a psychological illness, is not deemed, within the realm of law, to be suffering from insanity or disorder of the mind, in which case he might have been considered to be lacking consciousness of or choice in his action (Request N˚. 2313 of Judicial Year 31, November 28 1961 Session).15 It is established that mental illness, which is characterized as insanity or mental disorder and by virtue of which there cannot be any legal liability, is an illness that in itself prevents consciousness and awareness. Most psychological illnesses and states, in which people do not lack consciousness and awareness, cannot be considered as a cause for absence of liability. The court is not obliged to appoint a technical expert in this case to define the extent of the illness from which the accused is suffering and its effect on his criminal liability, except in purely technical questions where its [power of] appreciation is impossible (Request No. 3 of Judicial Year 33, March 26 1963 Session).

Egypt had now become a full-fledged member of the Civil Law family.

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6 From ‘Urf to Qaˆnuˆn ‘Urfıˆ: The Legal Positivization of Customs

In a similar manner to “Islamic law,” the expression “customary law” is conceptually problematic. There are many studies addressing the issue of customary law in Islam, but almost none of them conduct prior exploration of the concepts upon which it relies and the implications that the use of these words can have with respect to the findings emerging from these investigations. These words and concepts are generally taken as synonymous, while their historical ontology, to borrow from the philosopher Ian Hacking, reveals how much their uses must be differentiated and related to very specific and sometimes revolutionary transformations in the domain of normativity and law. In this chapter, we are interested in the mechanisms through which some customs are, to borrow Otto’s (2010) felicitous term, “incorporated” into legal systems. This process of incorporation testifies not to the hybridity of such systems but to their capacity to integrate a diversity of sources into one single language. If we were to use a musical metaphor, we would say that the piece called Islamey by Mili Balakirev is not a hybrid of Islamic and Russian music but one Russian composer’s musical understanding of certain elements of Asian folklore. In order to make our demonstration, we will start by clearing up some of the conceptual confusion surrounding the use of terms related to the notion of custom, by exploring some of the jurisprudential literature that addresses the distinctions among custom, customary law, and the customary sources of law. Turning to the Islamic world and normativity, we will also conduct a very broad review of studies addressing the question of ‘urf (generally translated as custom) in history, both inside and outside classical doctrine (fiqh). Taking the specific case of Morocco, we then concentrate on the colonial period, colonial interest in customary law, and the rejection of such law in the nationalist discourse and in the first decades following independence. Finally, again in Morocco, we focus on the specific case of al-kadd wa’l-si‘aˆya, which offers 154 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.007

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a striking example of the transformation of a local custom into a positive legal provision. Among other things, it shows how there needs to be an authority to make customs binding and a positivizing process to transform a custom into law. In conclusion, we suggest some analytical caution regarding the concept of legal hybridity in order to better ascertain the historically contingent character of positive law. 6.1 CUSTOM AND CUSTOMARY LAW: CLEARING THE MIST AROUND CONCEPTS

Richard Robinson says with great perspicacity: “We should probably acknowledge the arbitrary element in language more than we do; for that would encourage us to invent new sounds for our new names, instead of taking an old sound and thus creating a new ambiguity” (Robinson, 1969: 138). This sounds very much like Wittgenstein’s prudential remark regarding the necessity of clearing the mist surrounding our conceptual usages. Concepts are abstractions of features characterizing something that can be expressed with different words and in different languages (Bennett and Hacker, 2003). If one considers that the word “law” is a concept, the question is to know to which common abstraction many words are referring (see Introduction and Chapter 1). Some insights into the concept of positive law might provide us with a heuristic start to the analytical definition of habit, custom, and convention. In that respect, Bernard Murphy’s Philosophy of Positive Law offers an important starting point, although his thesis is very contentious and deeply problematic (Murphy, 2005). Positive law, Murphy claims, is generally understood, in the Common-Law community, as the law enforced by courts, referring to a certain kind of source and content, which is enough for practical legal purposes. If one aspires to a deeper account, the notion extends to the law laid down by an authority and distinct from the principles of justice and morality. In this reading, positive means two different things: in the first sense, it is an empirical and descriptive claim about the origins of law (its authority: in contrast to custom, positive law finds its source in some authoritative enactment); in the second sense, it is a normative claim about the content of the norm as lacking intrinsic moral necessity (its force: in contrast to natural law, positive law lacks intrinsic moral force). In this latter sense, positive law is distinct from the natural (natural law) and the normal (customary law): positive law regards what is deliberately stipulated, not what is divinely or tacitly established. Henceforth, customary law falls between two stools, being neither natural nor deliberate.

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A custom is a norm in both meanings of the word. First, it is a regular, normal way of doing something, a norm in its descriptive, statistical sense. It is also a prescriptive, normative practice in the sense that any breach in the horizon of “normality” against which it works will induce a kind of “repair” (see Garfinkel, 1967; also Dupret, 2011). As Murphy (2005: 53) argues, philosophical jurisprudence proceeds from three fundamental concepts of order and three allied concepts of law: order that is intrinsic to human nature (natural law), order found in informal practice (customary law), and order that is deliberately stipulated (enacted law). In this triangle, custom is a norm in both senses: habit and convention, which, if logically independent, are practically enmeshed, as “custom naturalizes convention just as it conventionalizes human nature” (p.54). According to Murphy (2007: 67), custom relates to law in very different ways depending upon whether we focus upon the dimension of habit or convention: “If we are focused on conventions, then custom is but one source of our legal conventions; but if we are focused on habits of tacit knowledge and skill, then all law rests upon custom, in the sense that the interpretation and application of law rest upon deep reservoirs of tacit know-how.” However, such a statement creates deep confusion. First, as clearly shown by Watson (1993), customary law seldom emanates from habitual conventions. Second, habits which are referred to in the legal concept of custom, not to speak of customary law, are not habits for the interpretation of legal rules (interpretive habits) but prelegal norms whose status can be made legal through interpretation (substantial habits). Third, custom and customary law have nothing to do with an interpretive competence and a background of understanding. Acts of interpretation or application of law are based not on tacit or customary habits but on ways of interpreting or interpretive practices. Fourth, it is wrong to say that custom is not only a source of law but also a consequence of law. In this case, we do not speak of custom but of legal practice, that is, an action oriented to the legal rule of which it is a practice. Fifth, it is wrong to say that customary conventions do not cease being customs when they become enforced by the law. As we shall see, legislated custom is statute, not customary law; its sources may be customary, but its nature has become statutory. Sixth, it does not make sense to say that, because legal conventions survive only by becoming customary – a claim that is itself questionable, since legal conventions survive by being applied – the growth of law means the growth of custom. Interpretive practices, which are not merely conventions, draw their authority not from the fact that they are habitual – while this is the source of any custom’s authority – but from their capacity to solve problems and from the institutional source from which they emanate.

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According to Roman jurist Ulpian (quoted in Watson, 1985: 44), a habit is made normative by the tacit consent of the people. According to Julian (quoted in Watson, 1985: 45), custom is law because the people accept it as law. This is what we call opinio necessitatis, that is, the fact that people follow a rule because they believe it to be a rule of law.1 Viewed in this way, custom becomes law when it is known to be law, is accepted as law, and is practiced as law by people who share the same law. Such a perspective raises a number of questions, for example, what happens if there is a change of practice? Two possibilities may be envisaged: one is that the past custom is remembered, in which case the outmoded practice must cease to be law before a different law can begin to emerge. This is, however, logically difficult: if opinio necessitatis is at the root of customary law, the possibility of desuetude is hardly acceptable. The alternative is that the past custom is not remembered. In this case, no subsequent contrary practice has, as a law, replaced previously existing customary law. This is a case where new law was created. It thus appears that opinio necessitatis excludes the possibility of changing customary law, unless one endorses Savigny’s Volksgeist as preexisting individual behavior (Kletzer, 2007). John Austin (1954) proposes another thesis regarding customary law. According to the author of The Province of Jurisprudence Determined, customary laws are moral rules turned into positive law through the action of the state, either directly by statutes or circuitously by tribunals. In other words, “customary behavior does not make law but through legislation or judicial decision.” There are arguments for and against this thesis. On the one hand, it does not explain why positive morality lacks the character of law. It also runs against the Common Law doctrine according to which judicial decision does not make law but expresses it. On the other hand, there are many arguments militating in favor of this thesis. First, customary law does not grow from a general conviction of law. If judicial decision plays a fundamental role in determining the rule, especially in the absence of official redactions of the customs, the legal rules are nevertheless often uncertain and there is a reluctance to generalize from cases and to extract principles applicable to other situations. Moreover, those appointed to judge will often make decisions on the basis of their own opinion of what is fair and reasonable rather than search for a definite legal rule. Second, customary law is often borrowed from elsewhere. It is a standard practice for one jurisdiction to accept the law of another system as its residual custom. Court decisions are essential in this process: by adopting the rules in the books, whatever their origin, they declare the rules to be customary. We can conclude this discussion with Austin’s thesis as to the importance of judgments in creating customary law. Note that accepting

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Austin’s stance regarding customary law does not imply acceptance of his whole theory of law as command. Indeed, it is far-fetched to equate consent, acceptance, and tolerance with a command, although it is equally misleading to underestimate command as one of the main components of the “force of law” (Schauer, 2015). Alan Watson (1985: 62) formulated some general remarks regarding customary law, which prove heuristic in understanding its nature, the process of its formulation, and its place within a positive legal system. According to Watson, the extent of a customary rule is frequently unclear. Moreover, there are frequent cases for which the preceding custom or its existence is unclear, something that does not prevent judgments from being given as if according to custom. The unofficial writing down of custom was often treated as giving evidence of a preexisting rule. In the same way, the decision of a tribunal claiming to be based on custom carries weight as a statement of this custom as law. It is a general phenomenon that customary behavior without any tribunal support is not accepted as having the normative status of customary law. In other words, it is the official recognition of normative behavior as customary that makes it customary law. In this process, borrowing from other legal systems is frequent. Not all institutions are legal institutions; not all rules are legal rules. A social institution becomes legal when it has been given legal effectiveness and when it is regarded from the legal point of view (cf. Troper, 1994). This means that the concept of law must exist before an institution or a rule is regarded as legal. There is nothing legal without the self-conscious representation of some institution or rule as legal. It is such legal consciousness that permits the institution or the rule to acquire the autonomy with respect to the “social” that it needs in order to exist as legal (cf. Luhmann, 1993). Law takes on a life of its own from this moment onward: that is, when factual situations come to be determined according to a standard treated as having its own existence; when there ceases to be a necessary, entire congruence between the standard and society; and when the decision is regarded as authoritative because it is issued by the right person. In other words, the resolution of disputes comes to be achieved according to a standard that is “entrenched” from purely social influences (cf. Schauer, 1991). These standards are the categories used in judicial reasoning, which is itself dependent on many other ways of doing that one might call legal practices. And the judges are the individuals who are entitled to adjudicate on the basis of these standards. It is this specific status of the legal within the social that allows legal borrowing and transplantation. Borrowing is often done from noncustomary systems to customary ones, at different rates, because of the lack of precision and clarity of the latter and

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because of the capacity of the former to fill gaps. Borrowing often implies the importation of the terms, tenors, and forms of borrowed legal institutions. It frequently happens independently of particular developments in the borrowing society, on the basis of the legal tradition of the legal elite, and from a system in which the law is written down to one in which it is not. Once it has been established that custom becomes customary law because of its enactment by a court and that custom becomes statute law because of its being legislated (cf. Watson, 1985), the issue of custom in law is necessarily an issue related to the use in law of pre- or nonlegal norms. In other words, it is an issue of the use in formal law of pre- or nonlegal normative practices as the basis for legal norms (cf. Schauer, 1991: 18). It makes sense to consider the issue of customary law in the general framework of a legal system, that is, within an articulate system of norms claiming to be comprehensive, supreme, and open to absorbing other sets of norms (Raz, 1980). It is precisely this absorption within a legal system that makes customary law so different from customs. In other words, customary law is custom viewed through the cognitive lens of positive law. It deeply changes the nature of customs. When the law shapes customs, customs change in nature: they are transformed into law, independently of the fact that, historically, many legal norms proceeded from customs. The fact that legal norms originally emanated from customs does not in any way mean that they carried this original customary nature along with themselves. The genealogy of the law has no necessary connection with its current nature. If, as Cicero claims, “law evolves from the principle of nature, through custom, to the deliberate stipulations of statutes” (quoted in Murphy, 2007: 75), it means that positive law incorporates nature into nurture on a “one-way ticket.” It is nothing more than juristic fiction to pretend that some laws are not created but are found in the practices of a people: in order to become considered as law, norms must be directly identified as such by an official instance, notwithstanding the pretense of this instance to have discovered a preexisting law. Customary law is not a subset of custom (Murphy, 2007: 76) but a subset of law, which sometimes selects existing customs, sometimes revives customs that are no longer alive, sometimes even invents or imports customs from elsewhere, always through the deliberate choice of specific enforcement by someone in a position of authority. As nicely phrased by Ibbetson (2007: 174), when speaking of medieval law, identifying a law as customary meant having a backward-looking reason for a forward-looking conclusion: the more the conclusion was desired the flimsier might be the reason provided for treating it as law. Contrary to Murphy, who claims that a court enforces customs because, as a class of customs meeting established criteria (expectation, reliance, and harm), they

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can be regarded as already lawful – this is the juristic fiction – the positivists like Austin are right to say that particular customs are lawful by the sole force of their enforcement by a court (customary law) or legislation by a legislative authority (statute law). 6.2 ISLAMIZING AND POSITIVIZING CUSTOMS

According to Coulson (1964: 131), Islamic ideology required that, when Islam was embraced, norms of behavior crafted on the basis of past experiences and contemporary needs of society should be abandoned and replaced by religious law as it was crystallized in the classical doctrine of the tenth century. The outcome was a strong tension between doctrinal sharıˆ ‘a and established custom. Although custom was not formally considered to be among the four recognized sources of doctrine (usuˆl al-fiqh), it nevertheless found its way under their aegis (Coulson, 1959: 13). First, it should be said that many preIslamic Arabian customs (not “customary law,” as Coulson says) were ratified and embodied in the Qur’aˆn and the Tradition. Moreover, it even seems that some customary practices that were in conflict with principles derived from the two main scriptural sources found their way in thanks to the authority of consensus. Joseph Schacht has argued that the role of custom in the formation of the fiqh was infinitely more important than suspected: “not only was the retention of custom in regard to matters on which the Quran and the Sunna were silent a basic feature of the body of doctrine current in the ancient schools of law in the second century of the Muslim era, but the criterion of local custom was, on occasions, strong enough to override the reported practice of the prophet himself” (as summarized in Coulson, 1959: 14), although “any conscious knowledge of their real origin was gradually lost” (Coulson, 1959: 15). It is true that classical usuˆl al-fiqh preserved only a very limited trace of the principles that governed the elaboration of the fiqh in the formative period. However, concepts like the consensus (ijmaˆ‘) of the people of Medina were one of the formal ways in which customs of a specific place could become Islamically normative; moreover, ‘urf (literally, “what is known of something,” and thus approximately “custom”) was always considered as a source, albeit secondary, of Islamic normativity. At a doctrinal level, thus, custom is given limited attention and a limited function. At a more practical or local level, however, the principle of the “rule of sharıˆ ‘a” never applied in an absolute manner. Needs generated by practice made it necessary to find accommodation or to allow local usages to persist, as one can clearly see in the field of commerce (see Kuran, 2011). Authors like Coulson (1959) and Anderson (1954) were able to state that, during the 1950s,

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matters of land tenure were, in Muslim Africa, “regulated by customary rules and practices.” Coulson gives the example of the agricultural contract of khamessa, under which the laborer receives one-fifth of the produce of the land on which he works: “Contrary though this contract may be to two fundamental principles of Sharıˆ ‘a doctrine – namely that rent should not consist of foodstuffs and that its amount should be known and determined – it is nevertheless universally recognized by the Sharıˆ ‘a courts in N.W. Africa” (Coulson, 1959: 17). However, Coulson comments, such recognition is due not to the integration of custom as such but to a compromise between doctrinal speculation and practical necessity. Although Coulson confuses custom, customary law, and statute law legislating custom, the point remains that custom provided either for an important source of normativity or even for substantial rules. If we refer to the particular example of fourteenth-/fifteenth-century Tunis, which is nicely investigated by Jean-Pierre van Stae¨vel (2008), it is striking to observe the number of references to ‘urf and ‘aˆda, generally expressed in the form of “the habitual way of doing among us in Tunis . . .” (wa jaˆrat al-‘aˆda ‘indanaˆ bi-tuˆnis) (van Stae¨vel, 2008: 342). The term ‘urf expresses the idea of a local usage giving birth to knowledge and thus to recognition (“what everybody knows”). The other term, ‘aˆda, refers to the habitual practice of people, the ordinary course of things, social practice validated by habit. Van Stae¨vel insists on distinguishing between custom in the sense of usages and mores, and custom understood as a source of authoritarian norms. In fiqh language, ‘urf and ‘aˆda have the value of either a source or a proof (van Stae¨vel, 2008: 343). Yvon Linant de Bellefonds (1965: 25–6) speaks of “legitimate usages.” It is important, from this perspective, not to see custom either as opposed to the fiqh or as the mere expression of rurality but as a widespread source of legitimate normativity. It seems equally important to observe that the notions of ‘urf and ‘aˆda extend to “normal ways of doing,” a kind of ordinary know-how, the value of which is normative only through the intermediation of expertise. One could speak here of a professional deontology. In that sense, while it is probably the case that ‘urf and ‘aˆda received, in Maliki doctrine at least, a more articulate and clearer sanction than was generally claimed (van Stae¨vel, 2008: 345), it is perhaps more as a reference to the “norms of the art” than to a binding legal source. A point that deserves special attention is the evolution of the vocabulary. In its formative period, the Maliki fiqh incorporated social realities through the use of local norms which it referred to as sunnat al-naˆs (the good practice of the people), ‘amal al-naˆs or amr al-naˆs (the people’s way of doing), or al-ma‘ruˆf (what is known and recognized as good). When the

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standardization of doctrine imposed by the science of the sources of doctrine (usuˆl al-fiqh) became generalized, it became necessary to theoretically justify the absorption of social norms. Maliki jurisconsults looked for means to give customs and practices some normative authority. Through the technique of the fatwaˆ, the term ‘aˆda became systematically used and acquired a normative, technical meaning (van Stae¨vel, 2008: 346). While ma‘ruˆf fell into disuse because of its lack of precision and sunna progressively referred to the Prophetic Tradition, ‘urf and especially ‘aˆda came to refer to norms and practices coming from daily life (the statistical sense of the norm) and generating obligations (the normative sense). It seems confusing to consider these norms legal in the same way as it is dubious that medical ways of doing are in themselves legal. Conceptually, it would be better to call them habitual ways of doing likely to become normative if so declared by a recognized authority. In other words, these usual practices can work as sources of obligations: repeated usage creates a normative presumption (Berque, 2001 [1944]). In any case, usual practice (‘aˆda) is observable as an argument that parties refer to, culminating in al-Mazari’s (d. 1141) fatwaˆs in which ‘aˆda appears as a source of knowledge for muftis in search of a solution regarding a given problem (van Stae¨vel, 2008: 348). As to the authority given to custom, Maliki jurisconsults derived it from Quran VII:99: “Practice forgiveness! Command ‘urf!” While it used to be a reference to ma‘ruˆf as something that is known and recognized, it transformed into a reference to ‘urf in its technical sense of custom, even making it – although not uncontroversially – a source of doctrine (asl) (van Stae¨vel, 2008: 354). The phenomenon of ‘amal, in Morocco and elsewhere in North Africa, deserves special attention. The principle is that, beyond the qualities of “dominant” (mashhuˆr), “preferable” (raˆjih), or “weak” (da‘ıˆf) that are attributed to opinions among doctrinal schools, there is a fourth quality that can be recognized, that of a constant implementation of a specific opinion by judges in a given place: “For, although it was theoretically incumbent upon the qaˆdıˆ to apply the dominant opinion of the school, a qaˆdıˆ might, in a given case, adopt a ‘preferable’ or even ‘weak’ opinion in order to avoid a particular harm or out of consideration for the public interest, and this opinion might then find consistent favour with the courts” (Coulson, 1964: 22). This implementation of an isolated opinion (qawl shaˆdhdh) among the courts of a specific place developed outside the bonds of fiqh and operated on the basis of local, constant, customary practices. It gave court decisions the force of precedent, as the recognition of local custom gradually established itself in judicial practice. According to Louis Milliot (1953: 176), the legal rule, originally

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6.2 Islamizing and Positivizing Customs

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based on custom, became based on judicial precedent. Etty Terem (2013: 448) speaks also of “muftiship as a form of local interpretation.” Customary legal systems went through significant transformations, especially from the nineteenth century onwards. In the context of Egypt, two main factors are often put forward: Islamization and sedentarization. According to Ron Shaham, for instance, “the sedentarization process of the Bedouins [brought] them closer to normative Islamic law, which gradually [took] the place of customary law” (Shaham, 1993: 192). According to Layish and Shmueli (1979: 31–2): The relation between custom and sharıˆ ‘a extends over a whole gamut of grades according to the stages of transition from a nomadic to a sedentary society. These grades may be divided into two main categories. In one of these, custom reigns supreme, free from the control of the sharıˆ ‘a; this supremacy is not absolute, though, for customary law as we know it today has for centuries been influenced by the sharıˆ ‘a, especially in the fields of contracts and obligations. The other category reflects the assimilative power of the sharıˆ ‘a over custom in tribal arbitration and especially in the sharıˆ ‘a court. The protagonists in the contest between custom and sharıˆ ‘a are the arbitrator and the qaˆdıˆ. The former shapes the customary norm in voluntary private jurisdiction; he is, in fact, the creator of customary law. The qaˆdıˆ applies the sharıˆ ‘a within the framework of the taqlıˆd, the legal doctrine established by the Hanafi school. He indeed bears the brunt of the islamization of custom, for the sharıˆ ‘a court is the principal daily meeting-place of sharıˆ ‘a and custom, especially as far as the litigants are Bedouin. . . . The results of the confrontation of sharıˆ ‘a and custom thus depend on the degree of orthodoxy, religious and secular education, and social philosophy of the ‘ulamaˆ’ and on their understanding of the islamization processes of a tribal society undergoing sedentarization.

One can wonder whether these authors did not miss an important point when speaking of the Islamization of customs, which is the process of state building, administrative and judicial centralizing, and legal positivizing that took place during the nineteenth and twentieth centuries in Egypt and Palestine. Indeed, the factor of sedentarization itself reflects this process, of which it is an outcome. At stake was the invention of Islamic law and, via Islamic law, the invention of customary law. In other words, what Layish and Shmueli (1979) call the Islamizing of custom actually refers to the global process of legal positivizing. This process of the legal positivization of customs can be observed everywhere. According to Leonard Wood (2016: 98), speaking of India: “Already in the late eighteenth century, agents of British authority began producing

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technical works to inform British personnel of the laws and customs of Indian Muslims.” Quoting French author Nicolas Perron, who, in the introduction to his 1898 translation of an important fiqh treaty, spoke of the necessity to change “laws and customs,” Wood (2016: 115) shows how, in the specific case of Egypt, the ideas of the famous nineteenth-century German Romanist Friedrich Carl von Savigny (d. 1861), and especially his evolutionary theory, according to which law, as a jurist’s creation, begins as custom and then evolves into state law, influenced the also famous early-twentieth-century French comparatist Edouard Lambert (d. 1947) whose “focus on custom as the fount of human law” (Wood, 2016: 135) included religion, for example, Islam, and its “customary origins,” with the consequence that “custom should be revived as a source of law in present-day Muslim legal doctrine” (Wood, 2016: 145–6). Lambert’s evolutionary theory made its way into Egyptian legal thinking, and prominent scholars such as Chafik Chehata (d. 1971) considered that Islamic doctrine (fiqh) “had begun with custom, then was transformed into formalized casuistry . . . [and now needed to be elaborated into] general principles” (Wood, 2016: 245). This process of legal positivizing continued in Egypt throughout the nineteenth century and culminated in a comprehensive theorizing of law, which took the form of codes (the Civil Code being its banner) and of general theorizing of law in its relationship with the sharıˆ ‘a. These codifying and theorizing endeavors pursued at least two goals: devising one single system providing Egypt with a systematic, all-encompassing legal framework and judicial apparatus; and making the fiqh enter the frame of modern positive law so as to safeguard its survival and relevance. Regarding custom, it had the direct consequence both of formalizing its status as a source of law and of largely equating it to Islamic norms. The case of Egyptian civil law is of special interest here for at least two reasons. On the one hand, ‘Abd al-Razzaq al-Sanhuri, the drafter of the Civil Code, must be considered, together with the authors of the Ottoman Mecelle, the representative par excellence of the enterprise of codifying the sharıˆ‘a that transformed it into “Islamic law.” On the other hand, Article 1 of the Civil Code makes first custom and second the sharıˆ ‘a subsidiary sources of the law. It stipulates that “in the absence of any applicable legislation, the judge shall decide according to the custom and failing the custom, according to the principles of Islamic sharıˆ‘a. In the absence of these principles, the judge shall have recourse to natural law and the rules of equity.” (see Chapter 8) Guy Bechor (2007), who contributed the most detailed study of Sanhuri’s Civil Code, quotes Egyptian jurist Muhammad ‘Abd al-Jawad Muhammad on ‘urf, “an unbroken chain of behavior of human beings in a particular field, whereby

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6.3 Customary Law in Colonial Morocco

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they believe that this behavior has become binding for them” (Bechor, 2007: 278, quoting Muhammad, 1991: 138), while ‘aˆda is a collective practice that does not meet the criteria of ‘urf and is therefore less binding. There are two criteria. The first one is material: the custom must be general, ancient, sustained, and not contradictory to general law and order. The second criterion is moral: the custom must be recognized as binding by the people and breaches of it punishable.2 If custom is thus highly esteemed in theory, it must be noted that in practice it is regarded with suspicion because of its uncertain and fluctuating character. According to Bechor (2007: 280), “a form of dissonance emerged between custom, which dictated the rhythm of Egyptian society, and positivist Egyptian civil law, which used custom sparingly.” The relationship between sharıˆ ‘a and custom was also fuzzy and controversial: they were sometimes confused and eventually the hierarchy between the two was reversed (especially since 1971 and the constitutional provision that made the principles of the sharıˆ‘a one (then the) main source of legislation). Enid Hill (1987: 80) argues that the judicial interpretation referring to ‘urf actually relates to Islamic law. Nevertheless, formally speaking, ‘urf has gained a prominent status in the Egyptian Civil Code. The definition given to it in the Explanatory Memorandum (1949, as quoted in Bechor, 2007: 281) is as follows: ‘Urf is the well-rooted popular source that is connected directly to society. It is considered as a natural means of action for society in cases in which there is no solution in written law. Accordingly, this source is and will remain a complementary source, alongside legislation, and its scope is not limited solely to transactions of a purely commercial character, but also includes the transactions of the Civil Code and the other sections of private and public law.

In practical terms, however, it remained up to the judge to acknowledge the existence of some custom. In sum, we see how much the Civil Code’s conception of ‘urf and sharıˆ ‘a conformed to soft legal pluralism and positivist principles: when taken into consideration by the judge, custom becomes customary law; and when legislated, it becomes statute law. 6.3 CUSTOMARY LAW IN COLONIAL MOROCCO

In the treaty that France concluded with the Sultan of Morocco in Fez on March 30, 1912, the French committed themselves to assisting in modernization and reform, but also to respecting the religious institutions within the framework of a protectorate (see Chapter 4). Colonial administrators and metropolitan policy-makers saw themselves confronted with the questions of

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the applicable law. Several answers were possible, such as transplanting metropolitan law, or questioning local scholars and rulers and imposing their views (cf. Bras, 2015c; Buskens, 2014). Marshal Lyautey, the highest representative of the French Republic, opted for the latter solution and this resulted in an early recognition of the customary law of the Berbers in a decree (zahıˆr) by the Sultan, on September 11, 1914. The dahir berbe`re of May 16, 1930, confirmed and developed the 1914 decree. The formal incorporation of Berber customs as law within the framework of the Protectorate resulted in a situation of official legal pluralism (cf. Buskens, 2010). The Moroccan legal system was divided into a “modern” part in which French law applied and a “Sharifian” system, consisting of “Islamic law,” Sultanic decrees, “customary law,” and “Jewish law,” embedded in the political framework of the protectorate regime. Whereas the modern part worked with legal codes, in accordance with the French model, there was no codification of the Sharifian rules. The aim of the system was order and control via indirect rule. Lyautey based this policy on a notion of “authentic Moroccan culture.” He employed scholars to reconstruct this traditional culture, creating the Institut des Hautes Etudes Marocaines in Rabat covering many fields, including law. The tribes were the social basis of the customary law policy, with the jmaˆ‘a (council of elders) as an administrative body, complemented by the customary court as a judicial institution. French officials oversaw the workings of these bodies. The colonial administrators and scholars, of which Robert Montagne is a prime example, understood the tribe as key to the imposition of order in these acephalous societies, which tended toward “anarchy” because of their strong “egalitarianism.” Oppositions played an important conceptual role, such as between makhzan, the Sultanic state apparatus, and sıˆbaˆ, dissidence or disorder, between urban and rural areas, between Arab and Berber, and between sharıˆ ‘a and ‘urf (l‘urf, izerf or azerf in various Berber languages), between Islamic and customary law. Administrators and researchers captured these differences in maps and lists, such as the Liste des tribus (List of Tribes) or the Organisation territoriale du Maroc a` la date du 15 mars 1940 (The Territorial Organization of Morocco as at March 15, 1940), which indicated the distribution of Arabs and Berbers and the areas with “Tribus de coutume berbe`re” (tribes following Berber customs) falling under customary courts. The practice of colonial legal administration involved control and registration of decisions and other forms of information. One of the material traces are the many alwaˆh, documents on wood from Southern Morocco, on which French stamps were placed in order to confirm their incorporation into the new legal system and their acceptance as legal proof.3 Through these acts of inscribing, recording, and archiving, French administrators and scholars

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6.4 From ‘Amal to Mudawwana

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transformed observed normative practices into customary law. Their writings constituted a canon of customary law for practical use in the administration of the tribes considered to be “of Berber custom.” Although the Maghreb has a long tradition of written rules, publicly accessible or not, ordering settled life, the French colonial approach transformed the understanding by applying categories taken from Napoleonic law and by encouraging people to write down rules at their request, thereby fixing rules from a particular point of view. On the basis of these “raw” materials, which were in fact carefully edited and put into a French-style legal conceptual framework, researchers compiled comprehensive overviews of the “customary law” of specific tribal groups. For instance, the linguist and ethnographer Georges Marcy worked from 1938 to 1946 on the compilation of Le droit coutumier Zemmouˆr (1949). The book is based on a deep understanding of the language and ethnography of the Berber Zemmour tribe, a study of legal decisions taken by the courts, and of available literature. Its analysis entirely complies with the legal categories of Roman and French law, explaining local institutions and rules in a way that makes them easy to understand for anybody with some knowledge of metropolitan law (cf. Bousquet, 1952). These writings created a clear picture of Berber customs as law that became publicly and uniformly accessible through the culture of the printed word. Another example is the linguist and jurist Louis Milliot, who came at Lyautey’s request to construct a proper understanding of Islamic law as practiced in Morocco, then to be fed into a proper colonial administration of justice. He “discovered” the existence of the phenomenon of ‘amal, whereby judges could introduce customary practices into Islamic jurisprudence at a practical and a theoretical level, which he considered characteristic for the Maghribi understanding of sharıˆ ‘a. His work became the foundation of the reform of the Islamic judiciary and the creation of an Islamic Court of Appeal, of which he edited and annotated the most important decisions in three volumes (Milliot, 1920–4). Milliot would become the supreme authority on Islamic and customary law, publishing the main introduction to Islamic law in France (2001 [1953]) and finally in 1958 becoming the president of the prestigious Acade´mie internationale de droit compare´ in The Hague. 6.4 FROM ‘AMAL TO MUDAWWANA: THE PLACE OF CUSTOM IN MOROCCAN POSITIVE LAW

At first sight, decolonization in 1956 implied a radical rupture with the rule of the Protectorate. Independence meant unification of the legal system. The official legal pluralism that structured the protectorate system, with its odious distinction (at least for the reformists) between sharıˆ ‘a and ‘urf, was

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immediately abolished. All Moroccans would live under the same law. Allal El Fassi, the leader of the Istiqlal party (see Chapter 4), strove to create new legislation based on “Islamic law,” understood according to Islamic reformist ideals. This meant purifying Islamic law of all later additions and customary elements, which hampered the accomplishment of social justice. The first move toward the Islamization of the legal system was the codification of Islamic family law, carried out between 1956 and 1958, a step the French had never dared to take. The new understandings of the committee of which Allal El Fassi was the reporter, laid down in the Code of Personal Status (mudawwanat al-ahwaˆl al-shakhsiyya), offered a conventional though positivized summary of traditional Maliki jurisprudence, with some moral admonishments to men to treat their spouses and children fairly. The new code was nevertheless meant to be the symbol of the new cultural and legal unity of the kingdom, guided by Islam (cf. Buskens, 2014). For Allal El Fassi, the codification of family law was just a first step toward the Islamization of the entire legal system. It also proved to be the final step. A Code of Nationality, abolishing the premodern distinction between Muslims and dhimmıˆs, protected Jews and Christians, and made all Moroccans into equal citizens. Soon criminal law and the relevant procedures were codified, according to French models, with only minimal references to notions of Islamic public morality. In 1962, Morocco got its first Constitution, which declared the country to be an Islamic state, while following French models of public law (see Chapter 4). During the 1960s and 1970s, further legislation to unify the legal system and the judiciary would follow, making Arabic the only language to be used in the legal process, but taking French law as a model (cf. Buskens, 2014). In all these changes, one thing was clear from the outset: the Moroccan legal system no longer gave any role to customary law, nor to legal pluralism, except for granting the Jewish community its own internal law in family affairs. It is through the prism of codification according to Islamic and French models that we can understand the sporadic reference to custom in contemporary Moroccan law. For example, Article 231 of the Code of Obligations and Contracts states: “Every pledge (ta‘ahhud) must be fulfilled in good faith (bihusn al-niyya). It is not only compulsory to do what the signed statement stipulates, but also all the extensions to the obligation stipulated by legislation, custom (‘urf) or equity (insaˆf), according to what its nature requires.” References to custom are also made in other provisions of the same Code, generally together with other words like “commercial” (Art. 25: al-‘urf al-tijaˆrıˆ), “local” (Arts. 516, 581, 615: al-‘urf al-mahallıˆ), “agreement” (Arts. 234, 235, 276: al-ittifaˆq aw al-‘urf ), or “obligation” (Art. 242: al-iltizaˆm aw al-‘urf).

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In the Family Code (mudawwanat al-usra), there are also several references to custom (‘urf), generally together with “usual practice” (‘aˆda) or “practices” (‘aˆdaˆt), in matters related to betrothal (Art. 5: khutba) and alimony (Art. 189, 205: nafaqa). However, as Justice Bouhya explained, the main route through which custom enters the field of family law is Article 400, which makes reference to the prevailing opinion in Maliki fiqh compulsory in cases where the legislation remains silent on a specific issue (see Chapter 8). Fiqh maxims are often used in this type of case, for example, “what is known as a custom is like what is stipulated as a condition” (al-ma‘ruˆf ‘urfan ka’l-mashruˆt shartan). For instance, it is said that “mortgage is a customary witness in the assessment of a debt” (al-rahn shaˆhid ‘urfıˆ ‘alaˆ qadr al-dayn). In its ruling of November 11, 2001, the Supreme Court stated: “Custom is like a legal rule the judge must know and must follow spontaneously. The burden of its proof does not lie with the parties to the request.”4 While this statement makes custom something that is naturally included in Moroccan positive law, other rulings promote a much more relative understanding of the concept. It is therefore clear that customs are integrated into Moroccan law, both as statutes and as precedents. Our question is, however, to determine how this integration occurred. In order to answer this question, we are going to concentrate on the specific case of al-kadd wa’l-si‘aˆya (Mouaqit, 2016). Al-kadd wa’l-si‘aˆya means “effort and quest.” It is the Arabic translation of a Berber word (tamezzalt), which is best expressed in colloquial Moroccan as haqq shqa’. It means the right to which one is entitled due to one’s hard labor. The existence of this right is established in the Souss region as well as in many rural Berber areas. It was also widely practiced in the country of the Ghomara, in the northern area of the Rif. However, its precise origin cannot be established. The right of al-kadd wa’l-si‘aˆya is related to work carried out by the wife and its consequences for her rights. Originally, it corresponded to the protection to which a foreigner is entitled from a group in exchange for his work; he may take his wife from the group in exchange for a nuptial gift consisting of his work scheduled over several years. This principle was extended to the wife who is working and contributing to the group through her work. In this case, it is the social and legal recognition of the wife’s work. It is this aspect that came to be considered as al-kadd wa’l-si‘aˆya by the Islamic doctrine (fiqh). Ibn ‘Ardun the Great (d.1584) is the author of a fatwaˆ (doctrinal expertise) extending the principle of al-kadd wa’l-si‘aˆya to the case of the wife whose husband has deceased. He was a scholar (‘aˆlim) operating in Chefchaouen, in the northern area of Morocco (Rif). The question he had to answer was whether the rural wife who is, through her work, at the service of her husband, is entitled, on her husband’s death, to a right on the product of the harvest, or is

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her right limited to her fiqh-stipulated inheritance right. His fatwaˆ duplicates a well-known principle, although it extends it to the wife whose husband has died. In terms of the fiqh, the problem consists of the cumulation of two rights: inheritance (one-eighth in case of direct progeny, one-quarter in case of no offspring) and al-kadd wa’l-si‘aˆya, the payment of the latter having to be taken as a priority from the overall inheritance (tarika). In other words, the wife’s work is considered by Ibn ‘Ardun as a debt against her deceased husband. It is specifically the development of al-kadd wa’l-si‘aˆya into a family issue that made it controversial. It was said that there was no doctrinal basis for issuing the fatwaˆ. As long as the question was circumscribed to the domain of rights in exchange for work, there was no theoretical obstacle; as soon as it became an issue of inheritance, it faced the established norms of the fiqh. According to Islamic doctrine, the conjugal association is conceived in purely affective, reproductive terms, and each of the spouses remains independent regarding his or her estate (istiqlaˆliya al-dhimma). The husband is responsible for the maintenance of his wife (nafaqa), with the consequence that the conjugal association is not transformed into a patrimonial one. In other words, while the family as conceived of by Islamic doctrine consists of an association created for the purpose of procreating, in which the wife does not work and is maintained by her husband, the customary model of family consists of a working association between husband and wife, in which the wife directly contributes to the common wealth. Opponents of the fatwaˆ argued that there should be no compensation for the wife’s work if it runs against the inheritance rights of the heirs. For its proponents, al-kadd wa’l-si‘aˆya was to be understood in the sense of acquests, that is, the wealth accumulated in common by the two spouses starting from the date of their marriage.5 According to Mouaqit (2016), there are two conflicting logics: the rural rationale, which recognizes the wife’s work as a right in a corporate situation; the fiqh rationale, which recognizes the wife’s individual ownership but denies her capacity to be compensated for her work within the family. This conflation of corporate rights and family rights takes on another dimension with the positivization of the Moroccan conception of normativity through the influence of French law and through the deep transformations of Moroccan society (urbanization, schooling, nuclearization of the family, out-of-family work by females). In terms of patrimonial rights, this development found, to a certain extent, in the practice of al-kadd wa’lsi‘aˆya an adequate basis for legitimizing the acceptance and the recognition of a principle of equilibrium and equality between spouses. From a principle of compensation for the wife’s work in the collective framework of an extended corporate family group, al-kadd wa’l-si‘aˆya became a subjective right to equal

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6.5 Conclusion

171

status and a principle for enhanced inheritance rights of women within the nuclear family. Before the adoption of the new Family Code in 2004, the right embodied by al-kadd wa’l-si‘aˆya was already recognized, but only as a local custom. In a ruling of May 4, 2003, the Court of Cassation stipulated that it could not be invoked by the wife in cases where it corresponded to “a custom unknown in the region of the two spouses.” The family law reform that led to the adoption of the new Family Code of 2004 crystallized this development through, for example, the rejection of women’s custody and the proclamation of their free will, and by the same token the recognition of the wife’s contribution to the conjugal wealth thanks to her work (with a direct reference to the right of al-kadd wa’l-si‘aˆya). Article 49 of the Code consecrated this principle: Each of the two spouses has an estate separate from the other. However, the two spouses may, under the framework of the management of assets to be acquired during the marriage, agree on their investment and distribution. This agreement is indicated in a written document separate from the marriage contract. The ‘aduˆl (Islamic notary) inform[s] the two parties of these provisions at the time of the marriage. In the absence of such an agreement, recourse is made to general standards of evidence, while taking into consideration the work of each spouse, the efforts made as well as the responsibilities assumed in the development of the family assets.

According to M’hamed Boucetta, second president of the Commission for the Reform of the Mudawwana: “It is normal in these times where the wife both works and takes care of her household, that she be not deprived of part of her goods.” This inclusion of the principle of al-kadd wa’l-si‘aˆya in the code “transformed the wife’s right to a share of the conjugal patrimony from a custom in vigor in certain regions of Morocco to a right stipulated by the law” (Court of Appeal of Laayoune, December 16, 2008). Some courts do even consider now that “the wife’s right to the wealth accumulated by the husband during the wedlock period finds its basis in Islamic religion and law. This right guarantees financial compensation to the wife in the case of dissolution of wedlock, in exchange for the efforts she has made and the care she has taken alongside her husband” (Casablanca Court of First Instance, April 24, 2006). 6.5 CONCLUSION

By exploring the concepts of custom and customary law, as well as investigating the specific case of al-kadd wa’l-si‘aˆya in Morocco, we have acquired

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a much better picture of what law is and is not. We have also gained a much better understanding of its plural sources and the nonpluralistic ways in which it is implemented, and of the many places where laws interfere with each other and the very few places where they remain totally autonomous. Norms, laws, and legal practices are no longer confused with one another. A given set of norms is not necessarily law, and law is no longer diluted in the all-encompassing and little-analyzed category of “social control.” Many practices can be characterized as legal practices, and not as parallel social, normative, or legal fields. Legal practices are those practices that develop around an object of reference identified by the people as law (and that can be state law, tribal law, customary law, or folk law, or any law recognized as such). In other words, a legal practice is everything that is done in a way in which it would not be done if the referring law did not exist. All this suggests some remarks regarding the concepts of legal pluralism and legal hybridity. First, we must come back to the old distinction between weak and strong legal pluralism (see Griffiths, 1986). This is about the difference between the plurality of sources in one and the same law, and the plurality of laws beside and beyond state law. Whatever good reasons there are to be critical of state law and state centralism, the question is whether it is conceptually meaningful to characterize any more or less systematized set of norms as “law” or whether it is more coherent to reserve this value-free (in the sense of not particularly desirable or undesirable) appellation to the specific historical concept that was born with the rationalist ideology and became globalized for reasons that have to do with the efficacy of what Foucault identified as power techniques. Our contention is that what is called strong legal pluralism is not about law but about nonlegal norms. On the other hand, weak legal pluralism is about law. It shows convincingly how law absorbs other normativities into one single body; in other words, how it imposes the framework of positive legal cognition on norms originating in various regions of human and social life. This soft conception of legal pluralism is often that which is involved in debate about legal hybridity (see Chapter 1). What we said about customs and customary law is directly connected to this difference between weak and strong legal pluralism. Considering customs as a legal system would mean adhering to the strong conception, with all its conceptual pitfalls. Considering that custom is only a source of law and that only customary law can be considered as law (a pleonasm, indeed!) means adhering to the weak conception, with the conceptual clarification that this involves. This latter perspective is deflationary, in the sense that it strips the

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concept of law of its metaphysical clothing and concentrates on its contingent, historical experience, on the basis of which the concept itself was ultimately elaborated. Note that the fact that legal practices are diverse does not make them instances of legal pluralism, either strong or weak, any more than diverging interpretations of the same statute make that statute plural: interpretations and practices are actually implementations of rules, not rules themselves. Second, we can formulate some remarks about hybridity. Hybridity means the interbreeding of species, that is, of two or more classes of individuals having some common characteristics or qualities. In other words, hybridity involves the interbreeding of things that have the same taxonomic status (kind, genre, species, type, category, class, etc.). One cannot produce a hybrid starting from things that do not share a similarity in kind. In our example about customs and customary law, it appears that customs are not of a legal kind and cannot therefore be crossed with statutes, which are themselves of a legal kind. In order to be crossed with statutes, customs have to be transformed into something of a similar kind, namely, customary law. If we extend our example, we see that, in order to speak of the hybridity of a legal system, the latter must be the result of the interbreeding of at least two preexisting, autonomous legal systems. Taking Morocco by way of illustration, describing the Moroccan legal system as hybrid would mean that it is the offspring of two existing legal systems, for instance, the local indigenous legal system and the French colonizing legal system. However, although it is true that the French colonizers brought the Napoleonic codes with them and clearly intended their transposition to the Moroccan context, it is plainly wrong to claim that this legal species interbred with another legal species called either Islamic law or customary law – not to speak of any Moroccan law. What it encountered were various norms and normativities, already completely or partly formalized, and organized in systems, but definitely not belonging to the species of a legal system, not because they were archaic or incomplete but mainly because they did not share the characteristics of the historical, contingent concept of state-centered positive law. Consequently, the Moroccan legal system is not a hybrid carrying the characteristics of two or more other legal systems; rather, it is a unique legal system that inherited some of its substance from the colonizing French legal system and has among its sources customary and Islamic norms, some of which transformed into statutory and case law. Concluding the conclusion, we claim that speaking of hybridity is not relevant when it is not about the product of two or more equivalent systems. Back to the metaphor of music, our contention is that Balakirev’s Islamey is

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Russian music inspired by, and not mixed with, Islamicate musical folklore. Applied to the concept of law, this means that we stand on firmer analytical ground with a concept of law with limited pretentions than with an overstretched concept of law encompassing all types of normativity and therefore referring to nothing specific.

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part i ii

legal praxeologies

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7 General and Particular: The Legal Rule and an Islamic Swimsuit in a Secular Context

In the French legal credo, a legal rule is defined as “a rule for behavior in social relationships, general, abstract and obligatory, whose sanctions are imposed by the public authorities” (Guinchard, 1995: 469).1 Generality is thus held to be constitutive of the rule. This classical definition is systematically repeated in universities, although it is also sometimes criticized in the literature relating to legal theory. In both cases – repetition and criticism – reference is made to the formal properties of the rule, and not to the rule as it is concretely formulated, read, and applied in practice. The precise intention of this chapter is to re-specify the question of the rule, starting from its conceptual components, in order to grasp the relationship of reference and usage that those who invoke it may have in context. In such a re-specification, the general and the particular become categories of practical reasoning, that is, accomplishments – and not givens – of those who use the rule as part of their public, political, and legal activities. Contrary to what can be read here and there, above all among critics of formalism and those who hold to a certain sociologism, the rule remains completely central to the study of law. It is clear, however, that it is not a rule that unilaterally determines behaviors and that will formally contain all the cases to which it is applied; rather, it is a rule understood in a relational manner, a rule toward which those who are involved in the law orient themselves or point, a rule to be understood in terms of relationships of referencing, interpretation, and application. In this sense, the rule is to its wording what reading is to a text: an instructed action. The praxeological study of the rule leads, on the one hand, to its being treated as a practice and, on the other hand, to understanding the properties that are attributed to it as a question of practical epistemology, that is, a question of attribution of epistemic qualities in the course of a task, always singular and contextual, of formulation, production, and implementation of the rule. 177 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.008

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In the ordinary order of things, the particular and the general are the two parts of a disjunctive pair operating in an indissociable relationship. Something can only be particular against a background of generality and, on the contrary, generalization always proceeds from the particular. The same goes for the legal rule, which is both a particular rule within a general system and a general formulation governing specific cases. Such is the case for any norm, a term whose etymology (in Latin norma refers to a measuring instrument) refers to a double dimension, descriptive of empirical regularity and prescriptive of a specific rule of conduct. The general and the particular are thus categories and, in this respect, they result from categorization operations, that is, methods of reasoning aiming to confer a relational (something is general or particular with respect to something else) and hierarchical (a greater or lesser degree of generality) quality to any object. To get the measure of these categorization operations, one should not adopt the perspective of formal logic but that of ordinary, practical epistemology used and shared by the members of society and, in particular, by people involved in judgments in terms of generality. By so doing, it may be seen that the rule is, indissociably, a general wording and a particular practice. This chapter deals with the relationship of the particular to the general in the practice of law, in three stages. It begins by examining the conception of the rule and its general and abstract character in the doctrine and theory of law. It then “re-specifies” the question from a praxeological viewpoint; that is to say it deals with it from the point of view of practitioners and users of law. Finally, we address the issue of Islam in French public and legal life, through the so-called “burkini affaire”2 and the resulting judgment of the Council of State (Conseil d’E´tat),3 which gives us the opportunity to examine how the question of the general and the particular dimensions of the legal rule applies in context, contingently, at three levels: that of “public opinion,” which is polarized around the question of the degree of particularism admissible in public life; that of the regulatory authority, which establishes a rule starting from a particular case; and that of the judging authority, which decides a particular case on the basis of general rules. 7.1 THE GENERAL AND THE PARTICULAR AS LEGAL CATEGORIES

The credo of the general and abstract nature of the rule of law is of ancient origin. As early as 1824, in Le Droit civil franc¸ais suivant l’ordre du code, Toullier (1824: 16) stated:

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14. A law is a behavioral rule prescribed to every citizen. It is thus in no way a transitory order relating to an individual or particular thing; it is a permanent, uniform rule, prescribed in relation to an object of general utility and common interest. The law considers subjects en masse, and actions in themselves and by abstraction. It cannot rule in relation to an individual, nor to an action nor to a particular case; it must be equal before all, either protecting or punishing: all citizens are equal in its eyes.4

This quotation provides us with a perception of the context of the theoretical formulation of the fundamentals of French civil law. If one translates the term “law” by “legal rule,” one notes that the latter is definitely presented as general, that is, applying to all, equal for all, of common interest to all, permanent, uniform. The effects of the international dissemination of the Napoleonic civil law model no doubt explain the fact that the affirmation of the general and abstract nature of the legal rule has been reproduced in many legal treatises all over the world. The Moroccan law manual Introductory Lectures on the Study of Legal Sciences by Marzouq Aı¨t El-Hajj (2005–6: 17–18) states that “by the generality of the rule of law, it is understood that the provisions that it establishes are not in themselves aimed at a particular person or persons, inasmuch as they concern all the people and all the situations that fall within their domain.” The principle of the general and abstract nature of the rule of law is part, in the same way as the principles of completeness, consistency, unity, equality, and stability, of those universals of positive law grouped into what natural lawyer Lon Fuller (1958) called the “internal morality” of the law. This view is not, however, unanimously accepted. For example, Denys de Be´chillon (1997) is critical of the generality imputed to the rule of law. In his attempt to define the latter, he tries to show that generality and impersonality are cliche´s about the law that can be demolished by showing, first, that the law cannot by assimilated with and reduced to legislation; second, that the reality of the law in no way corresponds to the affirmation of the general nature of its rule; and third, that there is no argument that makes this generality necessary. It is not this book’s intention to refute or support this criticism but simply to underline that, logically and conceptually, in the field of law or elsewhere, a rule, norm, or model is aimed at an indefinite number of singular applications. In other words, a rule, norm, or model that applied only to a single, specific case would be an absurdity, that is, not something that is true or false but a nonsense. Herbert Hart (1961: 120 et seq.), in this context following Ludwig Wittgenstein, reaches the same conclusion when he speaks of the “open texture” of rules. To qualify as a rule, the normative proposition must be

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open to an indefinite number of singular situations whose occurrence would be an application of the proposition. This is shown by Antoine Jeammaud (1990: 206) in his article on the rule of law as a model: the legal rule is “generic” and includes “an essentially generalist nature by virtue of its ability to receive a number, a priori indeterminate, if not unlimited . . . of applications.” The general is intrinsically constitutive of the legal rule. Saying that the rule is general is in one sense a kind of pleonasm. A rule is never aimed at a particular case. It may find its original justification in one or more particular cases, but it always breaks more or less free of them in a process of generalization that leads to its removal from its particular circumstances. The confusion underlying de Be´chillon’s argument does, however, have the merit of drawing our attention to the fact that two things may be targeted when speaking of the generality of the legal rule: on the one hand its concept, which intrinsically presupposes a degree of generality; on the other hand its scope, which may be more or less specific. Frederick Schauer (1991) offers a fundamental complement to the discussion. He begins by underlining the fact that the shared foundation of descriptive and prescriptive rules is that they do not concern particular cases: “rules, descriptive and prescriptive, thus speak to types and not to particulars” (p. 18). In other words, the particular cases that we perceive are instances of wider categories, without the fact of the particular case belonging to a more general category being completely determined. Particular cases are the hypothesis for the rule, which we could also call its factual predicate: if a given fact occurs, it is probable that a given rule will be applicable. In order to be operational, the factual predicate must have a wider scope than the specific case, which renders it inclusive but also sometimes “under, over (or both) -inclusive” (p. 32). This over- or underinclusiveness leads to a disparity between the rule and its justification, which Schauer calls the “entrenchment” of the rule, in other words its autonomy with respect to its factual predicate and its justification. The generalization peculiar to the rule is based on similarities and eliminates the differences between facts, in order to be projected in time and space beyond particular cases (p. 44): “existing generalizations steer understanding and observation in some directions and away from others.” In other words, the rule continues to apply even in cases where its original justification cannot be identified. The rule is, in a way, sufficient unto itself; it is self-justifying. This is the concept of “rule” on which a judge bases a decision: a decision based on a rule is a decision in which the decider treats the general rule as being entrenched with respect to its particular justifications and considers the fact of its existence as a reason to act, even in borderline cases (p. 51): “the decision-maker treats the generalizations as more than mere

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indicators, but as supplying reasons for decision independent of those supplied by the generalization’s underlying justification.” Consequently, the authority of a rule depends on the fact that one can say retrospectively that one has acted in such and such a manner because of the rule’s existence. Schauer demonstrates perfectly that a decision is not a rule. A decision may be particularist when it is focused on a particular case; it may be based on a rule (rule-based decision-making) when, on the contrary, it excludes certain specific characteristics of the case and concentrates on the generic qualities that make it liable to an application of the rule viewed independently of its justification (p. 111): “rules qua rules.” Thanks to its detachment from the initial facts and its being based on an autonomous rule, such a decision implies the inclusion of situations that obviously do not depend on background justifications of the rule on which it is based (p. 135): “rule-based decision-making thereby entails an inevitable under- and over-inclusiveness, and accepting a regime of rules necessitates tolerating some number of . . . results other than those that would have been reached by the direct and correct application of the substantive justifications undergirding the rule.”5 This digression into legal theory has allowed us to present a number of elements that are analytically relevant from a praxeological viewpoint: (1) the conceptually general nature of the rule; (2) the wider or narrower scope of the rule; (3) the constitutive link between the generality of the rule and the particularity of its factual predicate; (4) the autonomy of the rule with respect to its factual predicate; (5) the decision-making task that consists of fitting a case considered to be particular into the scope of a rule considered to be general; (6) the transformation of a decision considered to be particular into a precedent considered to be general with respect to a specific case considered to be particular, that is, the sequential nature of the generalization process; (7) the manner in which the general nature of the rule and the particular nature of the specific case are paired; (8) the presumptive nature of the force of the rule, whose effective constraint is an empirical question; (9) the nonreflexive and noninterpretative nature of the application of ordinary rules; and (10) the usefulness of the rule in providing economy of argument and simplification of the decision-making process. 7.2 PRAXEOLOGICAL RE-SPECIFICATION: ORDINARY REASONING, LEGAL REASONING, AND CATEGORIZATION OF THE GENERAL AND THE PARTICULAR

Legal theory offers us a conceptual advantage, but it does not enable us to resolve the question of the scope of the legal rule. Although the rule is

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supposed to apply to categories of people and situations, we must consider the operation that determines the breadth of these categories. In other words, although it is understood that the rule applies to generic categories, we must look at how these are produced and how singular people and situations may be allocated to them. In yet other terms, we are seeking a concrete understanding of how the object of the rule is determined. This equates to re-specifying the general nature of the rule by providing a description of the work of categorization. This means demonstrating how the members produce the generality of the rule and transform it into an interpretative resource of their practices as referred to rules. Rather than asking what the legal rule would or would not be, the proposed re-specification consists of describing how people, in the course of describable actions, make sense of its “general” nature, of the “particular” nature of its “cases of application,” how they produce its categories of recipients and assign factual situations and individual people, but also norms, to it. What are the methods for distinguishing the general from the particular, and for assigning particular cases to general categories? We can identify several of these forms of judgment: by specific case; in terms of similarity or equivalence, and thus in terms of comparison; in terms of category and hierarchy; in terms of generality; in terms of normality and, as a corollary, in terms of incongruity. All these procedures are part of ordinary sociological and axiological reasoning, on which professional reasoning is ineluctably based. They are based not on formal logic but on practical epistemology, that is, practical methods of dealing with epistemic questions. The praxeological tradition contains resources enabling these epistemic practices to be listed. Praxeological tradition is taken to mean the perspective that considers that social order is not based, in the first instance, on a learned conception but is continually produced and achieved by members of ordinary society. This means that such order is not to be sought in processes that are discernible solely from an overview of society and its members; rather, it is to be sought only in its “ground-level” accomplishment by those same members, as they undertake their ordinary activities. Ontologically, no two events are ever absolutely identical; they are always singular. Only by the intercession of a judgment in terms of identity are certain properties of these events selected and raised to the status of conditions sufficient for the establishment of such identity. Here we find an ordinary method of reasoning, an “ethnomethod,” to use the word proposed by Harold Garfinkel (1967). In a simplified version, two events may be considered to present a similarity, which could be described as a “family resemblance,” sensu Wittgenstein (1963: §§ 66–67) who thus escapes from the excessively formalist nature of the envisaged affiliation in terms of necessary conditions.

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Let us note that the greater part of the professional method used in social sciences, but also in medical and psychological science, is based on this judgment in terms of identity or similarity. The very foundation of statistics is, for example, to define the constitutive elements of categories in order to be able to place data taken from the social world into them, whence comparison and analysis of variables provide the means to make “discoveries,” sociological or otherwise (Benson and Hughes 1991: 118). As these authors also show, the creation of categories largely proceeds from implicit postulates and from a knowledge of common sense. This approach, consisting of “representing” the world in categories, is a procedure which then allows one to “intervene” with respect to the object thus represented (Hacking, 1983). In the course of our ordinary lives, we are continually making judgments based on identity, similarity, or equivalence. These judgments enable us to recognize things for what they are in the eyes of others: a question, an answer, a statement; a true story, a piece of fiction; a joke, a burst of anger, a show of annoyance, etc. When they are produced, these things display themselves and are invested with characteristics that make them recognizable. They may be said to be accountable, that is, they present themselves in such a way that they are describable and justifiable. There are elements in an outburst of anger that allow the observer to perceive it as such and then store them in the “anger” category. These elements are not those of a formal definition but the social components of a way of being or acting that may be qualified as anger and that, in this respect, is identical or similar to other instances in the same category. It is necessary for a social process involving the description of gestures and sounds to take place in order that the latter may appear as acts or words of anger. This is the process that establishes the similarity between one situation and another, by indexing characteristics perceived to be identical, thus allowing the situations to be placed in the same category. What is true of the ordinary world is also true of legal practice, which is based on epistemological and hermeneutic techniques that are “everyday” or “mundane” in the language of Garfinkel (2002). The same goes for reasoning in terms of “typicality” in which one establishes a similarity between the “typical case” and other “events of this type” (Sudnow, 1965). In administrative law, for example, one speaks of a typical case of excessive use of power. Interpretative standards, such as the notion of “reasonable,” apply when judges make their appreciations (Colemans, 2018), since they have discretion in interpretation enabling them to judge the typicality of the specific case. The “typical case” refers to the idea of thinking in cases. This consists of exploring the properties of a specific case in the hope of “extracting an argumentation with a more general scope whose conclusions could be used as a basis for other

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intelligibilities or to justify other decisions” (Passeron and Revel, 2005: 9). Thinking in cases is thus based on the tension that unites and opposes the preservation of the local meaning of a specific case and the development of generalized knowledge transposable to other cases (p. 13). Pierre Livet (2005: 229) speaks of an “operation of subsuming a singular case into a general rule or a universal concept,” which causes it to be “placed in a class.” Most often this involves reasoning from a prototype to which one attributes a gradient of resemblance, “in an iterative process between a concrete case, dispersed terms that we will link back to the case and the reevaluation of the case’s potential depending on how we deal with the inconsistencies” (p. 252). Casuistry is an example of thinking in cases, combining the ideas of the exemplary case and of the problematical case, by means of creating a narrative that shows how one has arrived at the problematical point that is, or that is constituted as, a problem. Here, the narrative serves as much to qualify the case as to distinguish it from similar cases. It is a way of assembling the pieces of a story and giving it order and form so that it can be used in arguments (pp. 24–5). As with reasoning in terms of identity, the primary foundation of thinking in cases, so characteristic of certain ways of doing in legal anthropology,6 lies in ordinary methods of reasoning. This way of thinking is found in many everyday expressions: “he’d already done that to me,” “it’s a typical case,” “it’s a classic of its kind.” Here, we find the idea of a singularity that is not a banal example from a monotonous series and is therefore not totally substitutable. It is, in a way, an “exemplary” example. Cases may be very different from one another – paradigmatic cases, particular cases, cases of conscience, ambiguous cases, borderline cases – but what they have in common – in a way thanks to excess or lack – is that they stand out from their fellow cases. This common manner of thinking in cases is also found in ordinary legal reasoning, which operates in a routine and not very reflective manner, speaking of “classic cases,” “frequent cases,” or “ordinary cases.” Attributing a more or less general nature to something is, by definition, reasoning in terms of grandeur, degree, hierarchy, and involves placing something in a class (Livet, 2005: 229), a category situated on a scale that runs from the most particular to the most general. In this type of reasoning, a class is always more particular than that to which it belongs and more general than a class that it includes: what is particular at a certain level becomes general at the next level up. In ordinary reasoning, a class or category often reflects the concept of a social grouping: family, friends, profession, social class, sex, type of person, criminals, etc. For its part, the question of the generality of the rule that concerns us turns on the wider or narrower categorization of its objects. In

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this sense, it is a category of belonging. Consequently, one can, to a large extent, use work on membership categorization analysis and, among other things, on the moral nature of categorization. The law is the archetypal field involving the categorization of objects that have obligations attached to them which, if they are not respected, may lead to sanctions. The specification of the objects of the legal rule thus proves to be crucial and their definition, extensive or restrictive, is decisive. Here as elsewhere, it is important to see how the categorization is carried out in concrete terms, starting from the available normative resources and with respect to them. In this context, Sudnow’s (1965) analysis of the guilty plea, already quoted, where the qualification of the charges and their attachment to classes of crimes calling for greater or lesser sentences are negotiated, abounds in enlightening examples. In penal law, very different from administrative law, it is interesting to see how the idea of “disturbance of the peace” can occupy a range from the most restrictive to the most extensive. Judgment in terms of incongruity and its corollary, judgment in terms of normality, are particularly frequent methods of reasoning. They consist of contrasting an object with its horizon of normality, that is, placing a particular instance in the context of what the general rule (understood in the descriptive sense of “what generally happens”) would expect. It is, therefore, a question of highlighting the gap between the reality of a situation and what we might have expected, incongruity corresponding to this gap between the situation and the “normal order” of things, and normality to the alignment of one with the other. In this sense, judgment in terms of incongruity proceeds from the breach of what Alfred Schu¨tz (1990) calls the “congruency of the system of relevancies.” With his now famous breaching experiments, Garfinkel (2002) sought to lead his students toward the determination of normality in terms of absence, from the breaches in it. From a praxeological point of view, it is appropriate to observe how normality is produced contextually. This supposes observation of how people inflect the meaning of a given situation in order to reduce its degree of incongruity and to give it a dimension that is ordinary, normal, typical, uniform, interchangeable (Watson, 1998: 215). As Harvey Sacks (1972) notes, the task of evaluating facts, objects, and people operates on the basis of the “typicality of routinized situations.” In other words, any judgment is based on a background of normality with respect to which it measures any possible gap. It should be noted that putting the particular into perspective with respect to the general, the singular with respect to the normal, leads to normality understood descriptively slipping toward normality understood prescriptively, as what is both desirable and obligatory (Que´re´, 1994).

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In the field of law, Sudnow (1965) shows how normality is always constructed from “typical features” ascribed to situations and expected of them. This normality is never a given in itself but always realized by the continuous work of people, in context and in action. The “normal crimes” that are the theme of his pioneering article are those which, for the professionals of the institutions described, have a familiar appearance and are expected to reproduce their typical characteristics. Similarly, in our example of administrative law, the judge’s evaluation of the “proven” nature of a risk of “disturbing the peace” will be noted. 7.3 COMMUNITY-BASED PARTICULARISM AND NATIONAL COMMUNITY: MUCH ADO ABOUT A BATHING COSTUME

Conceptually speaking, the legal rule is necessarily general. The breadth of the spectrum of people and situations that it addresses is, on the other hand, greatly variable, ranging from narrow to very wide categories. This generality of the legal rule cannot be defined a priori, however much effort is made by those drawing it up; it is inevitably the result of categorization and generalization operations which can only be adequately accounted for from a praxeological viewpoint. Having laid these foundations, it is now our intention to show how judgment in terms of generality operates – in relation to a single question – in a differentiated manner, depending upon the context in which it intervenes and the practical reasons for which it is formulated. The case in question is known in France as the “burkini affair.” It illustrates the modes of reasoning that are at the very heart of legal, political, and public discourses. The latest episode in a typically French saga – the question of the Islamic veil, whose roots run deep in the history of the Republic and its constitutional separation from the Church on the one hand, and in its colonial and postcolonial relationship with Islam on the other7 – the burkini affair broke in France at the beginning of August 2016, when the announcement by a Muslim association of a private day for women and children in a water park was denounced by elected representatives from Marseille, on the grounds that the invitation was accompanied by restrictions on what could be worn and the authorization of the “burkini” and the “bathing jilbeb.” The controversy grew considerably and led the director of the park to cancel the booking. A few days later, on August 5, the mayor of Villeneuve-Loubet issued a municipal decree forbidding the wearing of the burkini on the town’s beaches. He was followed by the mayors of several other coastal communes, on the grounds that a disturbance of the peace could be caused by the wearing of this swimsuit and, in certain cases, on the grounds of respect for the principle of secularism a`

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la franc¸aise, that is, “laı¨cite´.” The Association for the Defense of Human Rights-Collective against Islamophobia in France appealed against the town of Villeneuve’s decree at an emergency hearing before the Administrative Tribunal of Nice, which rejected the appeal. This judgment was challenged before the Council of State which, on August 26, 2016, issued an ordinance overturning the Administrative Tribunal’s decision and suspending the execution of the municipal decree. Here are two of the essential grounds for the decision, as repeated by the Council of State, a couple of weeks later, on September 26, when it dealt with a similar case that occurred in another commune: 5. Although the mayor is responsible . . . for maintaining public order in the commune, he must reconcile the execution of his mission with respect for freedoms guaranteed by the law. The consequence of this is that the policing measures decreed by the mayor of a coastal commune with the intention of regulating access to the beach and bathing practices must be adapted, necessary and proportional with respect only to the necessity of maintaining public order, as it results from the circumstances of time and place, and taking into account the requirements implied by easy access to the shore, safety while bathing and hygiene and decency on the beach. It is not up to the mayor to base his actions on other considerations and the restrictions that he places on freedoms must be justified in terms of a proven risk of disturbance of the peace. 6. The investigation has shown that the mayor of Cagnes-sur-Mer made the disputed decree to prevent disturbance of the peace likely to occur given the state of tension revealed, in his opinion, – after the terrorist attacks in Nice on 14 July 2016 and in Saint-Etienne-du-Rouvray on 26 July 2016 – by the verbal altercation that occurred on 23 August 2016 on one of the beaches of the commune, between a family, of which two members were wearing bathing costumes commonly known as “burkinis”, and other users of the beach. No other disturbance was mentioned, particularly during the hearing. The incident that led to the issuing of the disputed decree is not however likely, given its nature and, when all is said and done, its limited gravity, despite the proximity of the terrorist attacks in Nice and the maintenance of the State of Emergency, to lead to proven risk of disturbance of the peace of a nature to legally justify the disputed ban. Under these conditions, the mayor could not, without exceeding his police powers, decree provisions forbidding access to the beach and bathing to individuals wearing clothing ostensibly demonstrating their religious affiliations. The disputed decree thus seriously, and manifestly illegally, infringed fundamental freedoms, i.e. the freedom to come and go, freedom of conscience and personal freedom. The consequences of the application of such provisions constitute, in this case, an emergency that

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justifies the fact that the judge at an emergency hearing uses the powers vested in him under article L. 521–2 of the Administrative Justice Code. It is therefore appropriate to cancel the ordinance issued by the judge at the Administrative Tribunal of Nice on 12 September 2016 and to order the suspension of the execution of the decree made by the mayor of Cagnes-surMer on 24 August 2016.

Even before the Council of State issued its ordinance, many individuals had taken different political stances. They ranged, among those in favor of the abolition of the burkini, from Prime Minister Manuel Valls, who rejected “Anglo-Saxon laisser-faire ideas” (lemonde.fr, August 25, 2016), to right-wing opposition leader Marine Le Pen, who considered the ban to be “a question of republican secularism, of public order,” affecting “the soul of France” (lepoint.fr, August 17, 2016), left-wing opposition leader Jean-Luc Me´lenchon, who declared “the community-based instrumentalization of women’s bodies” to be “odious” (lefigaro.fr, August 25, 2016), former Prime Minister Franc¸ois Fillon who considered that “the wearing of the burkini, in the same way as that of the burqa, should be seen in its inherently political context” (lepoint.fr, August 20, 2016), and former President Nicolas Sarkozy, who saw in it “a provocation serving political Islam.” Sarkozy proposed the adoption of a law “banning any ostensible religious sign,” or even, because it relates to “such important subjects that affect our values” (20minutes.fr, August 24, 2016), a modification to the Constitution. Among the “antiabolitionists” were former socialist minister Jean-Pierre Cheve`nement, who favored “liberty, except where necessary with respect to public order” (lemonde.fr, August 17, 2016), and socialist personalities and ministers like Benoıˆt Hamon, who was concerned about the development of debates “that have only one consequence, saying that France has a problem with Islam and the Muslims” (lemonde.fr, August 17, 2016), Najat Vallaud-Belkacem, who saw “senior right-wing politicians exploiting people’s fears” (lemonde.fr, August 25, 2016), and Marisol Touraine, who feared that secularism might become “the spearhead of a stigmatization that would be dangerous for the cohesion of our country” (nouvelobs.com, August 25, 2016). The Council of State ordinance was made in this intense atmosphere and contributed to the polarization of attitudes, even if it also marked the beginning – due to the arrival of the end of the summer “silly” season – of the cooling of the controversy. Opponents of the decision considered it to be a “renunciation” (M. Valls, leparisien.fr, August 26, 2016) and the majority (C. Estrosi, J.-F. Cope´, F. Philippot, N. Dupont-Aignan) demanded the adoption of a law banning the burkini, whereas those in favor of the decision saw it as

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a victory for the rule of law. In a fairly circumstantial statement, former Prime Minister Alain Juppe´ underlined the fact that in the absence of disturbance of the peace and “in the state of tension and suffering in which French society finds itself, we would all do well to stop adding fuel to the fire” (lemonde.fr, August 26, 2016). Supporting the decision of the Council of State, he declared himself opposed to “demanding ad hoc laws as a reaction to media controversies” (huffingtonpost.fr, August 26, 2016). 7.4 GENERALITY AND PARTICULARITY AS PRACTICAL ACCOMPLISHMENTS

The general and the particular, far from being categories in themselves, are transformed, by the participants in the activities bearing on the lawfulness of the Islamic garment in public areas, into interpretative resources enabling them to fulfill their discursive and decision-making role. It is thus necessary to re-specify the concept of what makes a rule and its predicate of generality: what do the actors, the members, the participants mean when they claim the generality of the rule or an exception to it? As we have seen, it is not the generality of the rule as a logical property of it, once we know that it is not conceptually detachable from it. It is something else, which only an examination of the situated practices of these members allows us to appreciate. One can indeed say of a principle such as that of secularism that it should be universal, but that does not indicate in abstracto where the cursor determining its field of application is situated: the secular character of the state, as in the law of 1905, or the intrusion of the state into the sphere of civil society, as followers of “New Laı¨cite´”8 seem to claim? In order to locate the point indicated by this cursor, it is necessary to examine the contingent demarcation line that the members designate contextually, depending on the practical purposes of the activities in which they are engaged, be they political, administrative, or judicial, among others. In doing this they proceed in a “documentary” manner (Garfinkel, 1967): the members retrospectively index the past occurrences of which the specific present case is a new instance (affairs relating to the Islamic veil) and prospectively project the future occurrences for which the specific case will be the model (the next affairs relating to the burkini). In this process, “looping effects” (Hacking, 1995) occur, in such a way that the past, present, and future occurrences act reflexively on one another, the nominal permanence of categories covering profound transformations. The contextual integration and the practical objectives of the activities of those involved in the formulation of rules are decisive in the designation of the dividing line between the general and the particular. In terms of political

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stances, one can thus observe a polarization around the question of the degree of particularism admissible in the public sphere.9 In terms of the regulatory authority of mayors of communes, the generality of the rule is more about the possibility and the justification of adopting a general rule on the basis of a particular case. For the judicial authorities, the situation is diametrically opposite, that is, deciding a particular case on the basis of the principles and rules understood as generalities. Thus, the question of the general and the particular is not only about evaluating a relationship but also about the framework within which that evaluation takes place. Let us begin with the first of these levels, that of public statements. Here, the rule and its degree of generality are discursive objectifications, entities that are ontologically subjective but epistemically objective (Searle, 1996): their conception is that of the politicians who refer to them and, at the same time, take them for objective. They are realities that are given form by the simple fact of mentioning them. Here, the rule and its generality do not form a model to be followed but an ideal to be reached; they are, in a way, teleological and “aspirational.” They have the function of delimiting the identity of an imagined (Anderson, 1984) and virtual (Livet, 1995) community, that of the “Nation,” the “Republic,” of France and the French. The rule and its generality serve to define the boundaries of a group, that to which they are meant to apply, at the same time excluding all those who are presumed not to belong to it. Jurisprudence distinguishes primary and secondary rules (Hart, 1961). Primary rules are substantial; they apply to contents, offer a taxonomy of obligations and prohibitions, cover all the moral, religious, legal, and other provisions included, explicitly or implicitly, in a normative system. We will return to this in the following paragraphs. Secondary rules are, for their part, the rules that constitute the system, the rules at the heart of its very existence, the rules without which the system would not exist as such, the rules on which its identity is based. Identity-based rules are essentially the secondary rules that form the basis of a symbolic reference system rather than organizing the practical legal detail (Dupret, 2017; Dupret and Gutron, 2020). They are not necessarily numerous, they do not need to be systematically applied, but they are always mobilized and highlighted in operations involving questioning of an old order, installing a new order, or affirming the permanence of an old order under cover of reinterpreting its principles. These secondary rules enable a demarcated world to be established, in which the object of demarcation is less important than the symbolic divide that it establishes. This leads to the production of a new episteme from which a different world will take shape, that of New Laı¨cite´, which would like to transform the ideal of state neutrality into an obligation of intrusion into the private sphere, on the pretext that we all

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belong to a common, republican society from which any form of individual religious manifestation would be eliminated, with the objective of threatening with exclusion those who do not conform. As far as the regulatory authorities are concerned, the question of the rule and its generality appears in a totally different manner. Here, the rule is a model of behavior to be developed and imposed, and not, as we will see in terms of the judicial authorities, a model to be followed. What Schauer (1991) calls the “factual predicate of the rule” is, in this case, the selection from among the myriad of big and small events of everyday life of the particular facts to which sufficient importance can be attributed to establish a general norm. This norm is a “primary rule,” sensu Hart (1961), that is, a substantive prescriptive or proscriptive rule. Such a norm is general as soon as it targets a type of situation and not a specific event. But the scope of this norm may be very wide or very restricted, as in the case of the burkini of which the frequency of occurrence on French beaches is, to say the least, limited. Here, the regulatory power has chosen to target a type of fact that is particularly specific and singular. This does not change the general nature of the rule, but it makes the measure appear opportunistic. Moreover, since the justification given for adopting this measure – the risk of disturbance of the peace – seems more virtual than proven, it is not absurd to think that, more than being regulatory, the action of the communal authorities in fact constitutes a political stance. We can thus see that a measure taken for practical purposes, apparently regulatory, may, in reality, meet objectives that are more identity-based. Perhaps it would be more exact to say that the expression of “public opinion” invoked by critics of the burkini at the political level corresponds, in regulatory terms, to a desire for legal normalization, that is, the transformation of an opinion into a law. We find here, although in fairly different terms, what Nathalie Heinich (2017: 40) calls the function of normalization of opinion: “an opinion is often a reminder of the norm.” It could be said, however, that rather than being a reminder of the norm, the invocation of public opinion produces a new norm on the pretext of reminding us of it (Dupret and Ferrie´, 1997). And the role of the regulator is to formally regulate, that is, give legal form to the norm invoked in the name of public opinion. The third level is that of the legal authority. In the case of an administrative dispute, it is most often a question of examining the degree to which a regulatory decision conforms to the norms, principles, or rules that are hierarchically superior to it. Examples are determining whether a given ruling that seeks to produce a given effect respects the principle of proportionality between the intended effect and the means used to achieve it, or whether a given decree invoking public order is really sufficiently in line with this

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justification for the offending measure to be adopted. Generally speaking, the judge’s role is to apply the rule to the facts constituting the particular case. The action is thus formally opposite from that of the regulatory authorities, which starts from a particular fact to induce a general rule. The judge starts from the general rule and applies it to the particular case. Of course, as Lenoble and Ost (1980) have shown when speaking of legal mytho-logic, the operation is never as mechanical as that, since facts and rules are presented to the judge not in an undigested form but after a significant amount of selection and formatting “for all practical legal purposes” (Dupret, 2011). In The Making of Law, Bruno Latour (2009) precisely describes this “weaving work,” which brings together the elements of the case file (the factual part) and the referring laws (the formal rules) in such a way as to “make the case speak more and more like the law just by having the arguments or the grounds at every stage better arrayed and regrouped” (p. 88). He also describes what he calls “the transfer of value objects,” that is, the practical methods of accomplishing the work through which a case receives its specific legal character and completes the “passage of law” (p. 121). This is exactly what we can see with the ruling relating to the burkini, where the judge highlights the disproportionality of the “provisions forbidding access to the beach and bathing to individuals wearing clothing ostensibly demonstrating their religious affiliations” and “the incident that led to the intervention of the disputed decree,” which is not likely, “given its nature and, when all is said and done, its limited gravity, despite the proximity of the terrorist attacks in Nice and the maintenance of the state of emergency, to lead to proven risk of disturbance of the peace of a nature to legally justify the disputed ban.” The consequence of this lack of proportion between the factual predicate of the rule (the particular incident) and the rule itself (the general provisions) meant, for the judge, that a regulatory provision (the particular ruling) thus “seriously, and manifestly illegally, endangered fundamental freedoms” (the general principles). We can thus see that a double syllogism is at work, that of the regulation and that of judgment, the major (general rule) of the former acting as a minor (particular fact) to the second. 7.5 CONCLUSION

The more or less general nature of the rule, understood as its field of application, proves to be profoundly different depending on whether one is dealing with a political speech, the production of regulations, or a legal judgment. It is contextual and contingent, constrained by the practical purpose of the operations to which this evaluation applies. At the same time, these different levels are not partitioned, as may be seen in the affair of the burkini, where mayors’

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regulatory activities go beyond their strict framework and include a marked political dimension. Here, one observes the extent to which the attribution of a predicate of generality is normatively and morally colored. Describing a principle as universal, targeting a limited category of the population in a regulation, or judging an infringement by a particular ruling of a general principal of freedom is not giving a simple reminder of the norm, and is not a purely descriptive action. Evaluating the scope of the norm also means, prescriptively, redefining the norm and thus introducing a new relationship between rights and obligations. In other words, characterizing the degree of generality of the rule contributes, under cover of a reminder of its permanence, to a recomposition of the normative field of social obligations. The law has this very particular capacity of being able to transform a state of affairs through the intercession of “performative acts” (Austin, 2018). The language and thus the ability to enunciate the rule are central. But the rule is, at the same time as being a statement (or at least an “enunciation”) of itself, a practice of itself. The law is neither a simple, formal organization of rules, as legal dogma would have it, nor a question only of practices detached from their formal substrate, as some representatives of the Realist school seem to believe, but a set of relationships between normative “enunciations” and their implementation (Dupret, 2014). These relationships are not causal but involve correct or incorrect application (Winch, 1990; Cometti, 2011, p. 16) of a prescriptive model (Jeammaud, 1990). A relationship of correctness leads to an evaluative operation and a judgment in terms of correction. This is the level at which the relative indetermination of the rule is situated, the uncertainty that can surround the degree of correction of its application with respect to its “enunciation.” The capacity of the rule to transform itself also resides at this level: Rules change or may be changed, not because we are allowed to decide in an arbitrary and sovereign manner – which leads us too easily to think of the idea of convention . . . – but because rules are nothing more than their application, and to the extent that they are indissociable from it, they are most likely to transform themselves in being used. (Cometti, 2011: 42)

Contrary to Marianne Constable’s (2014; also Dupret et al., 2020) opinion, the rule really is central to the work of the law. This does not, however, mean a rule understood in an abstract, autonomous manner but a rule understood as it is practiced, through its perception (which is not necessarily its interpretation). The rule is not a mental object, existing in the mind, but a social object that exists only in its applications.

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8 Filling Gaps in Legislation: The Use of Fiqh in Contemporary Courts in Morocco, Egypt, and Indonesia

Most Muslim-majority countries have, to a greater or lesser extent, codified family laws (sometimes called personal status laws). Whether they are scattered legislations or integrated codes, these laws stipulate matters relating to marriage, divorce, filiation, and inheritance. Most of these legislative texts claim to be the codified translations of the provisions of one of the many Islamic doctrinal schools (madhhab, pl. madhaˆhib), although they often combine these provisions through the techniques of “pragmatic eclectism” (Ibrahim, 2015), for example, talfıˆq and takhayyur. Such is the case from West to East, for Morocco, Egypt, and Indonesia. Each of these three countries has a long legal history of its own, but they share certain features relating to the form of the law, the ways in which it is practiced, and its relationship, in the family domain, to the Islamic normative legacy. In this chapter we address the methods used by judges to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in these three countries. To date, little scholarly research has been devoted to the use of fiqh by contemporary judges. Instead, the scholarly literature tends to posit that fiqh, as found in traditional legal manuals, continues to be applied in these domains legislated by the states. This assumption underestimates the social and intellectual diversity of contemporary Muslim societies and overlooks fundamental changes brought about by the importation of a civil law model and its influence on the inner dynamics of legal reasoning (see Rubin, 2011: 87 et seq.). The chapter explores the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. Jurisprudence is concerned, among other things, with the nature of the interpretive work performed by judges. Nineteenth-century ideas regarding the function of judges as, following Montesquieu’s expression, the mouthpiece of the law, have been replaced by the contention that judges actually create the law by interpreting statutes and precedents. According to Hans 194 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.009

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Kelsen (1967 [1934–60]: I/4, p. 4ff.), for instance, a legal norm corresponds to the meaning of an act of will (e.g. a statute or a ruling). It is up to judges to attribute such meaning and thereby “make” the norm. In this respect, Kelsen’s position is very close to that taken by American realists who contend that the meaning of statutes is solely determined by judges (see Troper, 1994: 83). Judicial discretion is even greater when there is no explicit provision in the law that can serve to guide a judge’s work. A judge who is not constrained by existing statutes or precedents seems to be free to create law at his or her discretion. Generally, however, one finds statutory provisions that stipulate not the content of the law itself (which is supposed to be discovered by judges) but the procedure to be followed to discover it. For instance, Article 1 of the Swiss Civil Code stipulates: 1. The law applies according to its wording or interpretation to all legal questions for which it contains a provision. 2. In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator. 3. In doing so, the court shall follow established doctrine and case law.

Accordingly, the power of judges to create the law is constrained in three ways: Firstly, by the need to justify the principles on which their reasoning is grounded in a manner that preserves the logical appearance of their deductions. Secondly, by precedent rulings in similar situations. It is only with the first occurrence of an unprecedented case that the law can be said to be discovered. In subsequent cases – and even if it has long been established that the work of identifying a case as one of a specific type is already the result of interpretive reasoning – judges only follow the direction indicated by the precedent. Thirdly, judges are constrained by informal interpretive devices, often issued by ministries or higher courts, that do not have any obvious legal status. These devices may correspond to informal practices that are followed in certain areas but not in others, with certain judges and not with others. These devices establish standards, patterns, and templates, but do not constitute rules stricto sensu: no ruling can be officially overturned on the grounds that it contradicts these devices. These three constraints on adjudication in cases in which legislation is silent render the discretionary power of judges to create law much weaker than it might appear to be at first glance. They reflect a trend toward the standardization of judicial work, as we shall observe in Morocco, Egypt, and Indonesia in relation to the question of marriage authentication. In these countries, explicit or implicit rules stipulate that judges are compelled to adjudicate and must refer to the prevalent opinions of a specific doctrinal school in the event of the silence of the law. This means that judges must turn to what legislation

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designates as fiqh in order to find the provisions suitable for the case at hand. However, legislation is never specific in terms of either what the judge must do in order to find the relevant solution to the case at hand or what is meant by the “prevalent opinions” of fiqh schools. It is up to the judges themselves to interpret the law and to locate the relevant provision. In this process, judges use new interpretive techniques and modes of reasoning. At the present time, fiqh is understood in a legally positivist manner in the judicial setting of Muslim-majority countries. While there is a continuum between classical fiqh and national laws at the substantive level, mainly in the domain of the family, a profound division has developed in terms of methodology and epistemology. This is the heart of our argument. The issue of marriage authentication, a domain in which formal legislation is often silent, provides us with a perspicuous lens through which we examine how what we call “legal cognition” has been transformed in a radical way. The chapter proceeds in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case-law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbaˆt al-zawaˆj, ithbaˆt al-nikaˆh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam”1 within the framework of positive, codified, and standardized law. We argue that the practice surrounding marriage authentication is informed by local social and legal contexts in which the interpretation of fiqh has been influenced by the combined forces of legal homogenization, standardization, and positivization, on the one hand, and the positivistic legal training of judges, on the other. While there is a degree of continuity at the level of substantive rules, the methodology and epistemology adopted by contemporary judges, the legal material upon which they draw, and the means by which they refer to this material have fundamentally altered the nature of legal cognition (the ways in which people think legally) and thus of law itself. 8.1 INSTITUTIONAL AND LEGAL TRANSFORMATIONS IN MOROCCO, EGYPT, AND INDONESIA

Beginning in the nineteenth century, Muslim-majority countries underwent a major transformation in their political, judicial, and legal administrations.

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The encounter with the West, mostly colonial, was certainly a major factor in these developments, which led to the creation of nation-states, the formulation of positive legal systems, and the establishment of multilayered judiciaries. Although the history of justice in Morocco has still to be written, one can roughly say that, prior to the establishment of the French and Spanish protectorates in 1912, there were two types of jurisdiction: Shra‘ 2 courts and Makhzen courts. Judges in the Shra‘ courts applied Islamic fiqh. These judges were generally graduates of the Qarawiyyıˆn in Fez, were appointed by Sultanic decree (Dahir, zahıˆr), and followed Maliki doctrine.3 The Makhzen courts, on the other hand, which initially were confined to penal matters, progressively gained jurisdiction over civil and commercial matters. In this type of court, judgments were issued by administrative governors, baˆshaˆs (in towns) and qaˆ’ids (in rural areas). With the beginning of the French and Spanish protectorates,4 new courts were established, although the Makhzen and Shra‘ courts were maintained. Under the French protectorate, the major and most significant “reform” of the Moroccan judicial system was achieved through the Dahir of July 7, 1914, followed by the Dahir of May 16, 1930, which transferred jurisdiction over the majority of “Berber” tribes to customary courts, thus removing them from the jurisdiction of Shra‘ courts. The so-called “Berber Dahir” of 1930 triggered a great deal of opposition and may be considered a turning point in the history of the Moroccan national movement. After Morocco gained independence in 1956, both Makhzen and customary courts were abolished, leaving the “modern courts” established by the protectorate as the core of the judiciary. The main reform introduced after independence was the law of January 26, 1965, called the law of “Unification, Moroccanization, and Arabization of Moroccan Justice.” By virtue of Article 3 of this law, Shra‘ courts were established as specialized circuits of first instance and appellate courts. Another significant development was the creation, in 2004, together with the new family code, of family circuits within first instance courts. Following the formation of the Egyptian state in the nineteenth century, a centralized and hierarchical legal system was developed with the parallel promulgation of law codes inspired by the French Code Napole´on. Political and legal elites argued that efficient government necessitated a departure from the doctrinal uncertainty that allegedly arose when judges adjudicated on the basis of classical Islamic fiqh (Hasso, 2010; Lombardi, 2006; Messick, 1993: 54; Shaham, 2010). This process of legal positivization began under the Ottomans but gained momentum in the nineteenth-century colonial context (Brown, 1997b; Lombardi, 2006; Shaham, 2010: 104; Vikør, 2005: 228). By the end of the

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century, Egypt had “transplanted” (Watson, 1993 [1974]) European civil, commercial, and penal law codes (Brown, 1997b: 10). As for the judicial system, French-style hierarchical courts were introduced to ensure that judges applied the codified laws consistently. These courts were staffed by judges trained in Western-style law schools. Simultaneously, the jurisdiction of the sharıˆ ‘a courts was restricted to the domain of family law. This does not mean that this jurisdiction was outside the control of the state. Among other things, an 1856 procedural law stipulated that Hanafi rules be applied exclusively in the courts in order to render the application of the law more predictable and uniform. The state also intervened through legislation that required written documentation by a state official for the validation of marriage. The Egyptian state also began to collect statistics on marriages and divorces (Cuno, 2015; Hasso, 2010; Vikør, 2005). In 1875, Muhammad Qadri (d. 1888) published al-Ahkaˆm alShar‘iyya fıˆ’l-Ahwaˆl al-Shakhsiyya, which, although never promulgated, was the first full-fledged codification of Hanafi provisions regarding the family (Qadri, 2006). Sharıˆ ‘a became “personal status law” (qaˆnuˆn al-ahwaˆl alshakhsiyya), a distinct sphere of civil law covering marriage, divorce, affiliation, and inheritance (Cuno, 2015: 78; Vikør, 2005: 236). This conception of law contrasted with the corpus of classical fiqh, which, as Peters (2002: 84) has observed, is “discursive and include[s] various, often, conflicting opinions”; it is made of “open texts in the sense that they do not offer final solutions.” With the introduction of an appellate system and a new emphasis on documents in judicial procedure, sharıˆʿa courts became more bureaucratic. Another important development took place in 1955, when the state abolished sharıˆʿa courts and transferred their jurisdiction to national courts. At present, the Egyptian judicial system has three branches: an administrative judicial system called State Council (majlis al-dawla); an ordinary judicial system, at the top of which is the Court of Cassation (mahkamat al-naqd), which has jurisdiction over civil, criminal, and personal status matters; and a military judicial system. The Supreme Constitutional Court crowns the entire edifice (Bernard-Maugiron, 2008: 6). Hence, Egyptian personal status law is currently implemented by judges who are trained in positive, codified law, and not in traditional fiqh. Prior to French, British, and Dutch colonization, the region that comprises the modern state of Indonesia was religiously and politically diverse. The Muslim inhabitants of the region generally followed the Shafi‘i madhhab, and Shafi‘i fiqh was partly applied in some Indonesian sultanates (Ibn Batutah, 1854, vol. 4: 30, 35). Matters not governed by Islamic fiqh were subject to local

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customary practices that varied greatly across the region. During the nineteenth century, Dutch colonization transformed the legal landscape. The Dutch introduced a hierarchically organized system of courts (Lev, 2000: 16, 39) and implemented a number of Dutch codes.5 Dutch legal policy subjected an important number of matters to custom, and in the process transformed those customs into judicially enforceable “law,” called adatrecht, which later became hukum adat (customary law) (see van Vollenhoven, 1928). Upon gaining independence in 1945, Indonesia, unlike many Muslimmajority countries, did not adopt Islam as the state religion and did not make Islamic normativity the source of its law. In a compromise measure designed to avoid alienating non-Muslim groups, the drafters of the Constitution adopted Pancasila (five pillars),6 stipulating the belief in one unique God (see Bonneff et al., 1980). In the decades following independence, the national government gradually replaced most of the Dutch colonial legal legacy with national legislation. Although sharıˆ ‘a is not mentioned in the Constitution, the state has accommodated Muslim aspirations to apply Islamic law in a number of civil matters by incorporating elements of fiqh into legislation. In 1974, Indonesia enacted a Marriage Law (Law No. 1/1974) prescribing marriage and divorce rules compatible with sharıˆ ‘a and fiqh; these rules apply to all citizens, regardless of religion. In 1989, the state formally recognized the country’s religious courts with the promulgation of Law No. 7/ 1989 (followed by Law No. 3/2006 and Law No. 50/2009). In addition, laws passed in 2001 and 2006 grant authority to the Province of Nangroe Aceh Darussalam to enact legislation to fully implement sharıˆ‘a (Law No. 44/1999, No. 18/2001, and No. 11/2006).7 8.2 STATUTES AND LEGISLATIVE GAPS IN FAMILY LAW: MARRIAGE AUTHENTICATION

The domain of the family, arguably the last bastion of fiqh, was deeply transformed and reorganized under the influence of positive legislation and state-controlled adjudication. Statutes or full-fledged codes were adopted and judicial institutions were unified, while legal curricula were created to train jurists, lawyers, and judges in one and the same law for all within the borders of the new nation-states. The resulting legal upheaval took a very different form in each of the three countries under study for reasons related to their respective precolonial, colonial, and postcolonial history, in addition to the models on which they shaped their legal and judicial systems. Since the promulgation of the 1957 Personal Status Code (PSC), family law in Morocco has been characterized by its combination of fiqh and codified

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law. Drafted by a panel of ten scholars, six of whom were judges, the PSC was intended to be a codification of Maliki doctrine, to which it refers at the end of four of its six books. In 1993, amendments were introduced to the PSC that were seen by modernists as a breach in the wall. After a long process, the competition between “modernists” and “conservatives” led to a royal arbitration that gave rise to the 2004 Code, which attempted to address the feminist movement’s claims without jeopardizing the Islamic tradition. While taking Maliki doctrine as the main source of its provisions, the 2004 Family Code (mudawwanat al-usra) draws on other madhhab doctrines. For example, Article 40 follows Hanbali doctrine regarding the prohibition of polygamy when a wife stipulates in the marriage contract that her husband cannot marry another woman; and Article 124 follows Shafi‘i doctrine regarding the obligation to register raj‘a (the husband’s taking back of his wife after a revocable divorce) (Abu ‘Awad, 2011:50 sq.). As for cases that are not regulated by a legal provision of the code, Article 400 of the 2004 Family Code states: “For all issues not addressed by a text in the present code, reference may be made to the Maliki madhhab and to ijtihaˆd, which seeks to implement Islamic values, in [the domains of] justice, equality and appropriate coexistence.” Regarding marriage authentication, Article 16 of the 2004 Family Code, designed to put an end to unregistered marriages, states: If, for reasons of force majeure or act of God, the marriage contract was not officially registered on time, the court may take into consideration all legal evidence and expertise. During its enquiry the court shall take into consideration the existence of children or a pregnancy following the conjugal relationship, and whether the petition was brought during the couple’s lifetimes.

Initially, petitions for marriage recognition were admissible within a period not to exceed five years from the date upon which the law came into effect. However, the fact that this period was extended twice, first in 2009 and again in 2014, suggests that the goal behind Article 16 had not yet been reached. According to Law No. 03.73 of 3 February 2004, amending Article 2 of the Judicial Organization Law, family circuits adjudicate in matters of personal status, civil status, notary and minor affairs, child tutelage (kafaˆla), and all matters relating to the care and protection of the family. The same article adds that any chamber of the court can rule on any case brought before it, except on matters relating to the family and to community justice. However, there is no specific way to select and train judges sitting in these circuits. With regard to the selection and training of judges, Article 1 of Decision No. 2357.06 of 23 October 2006, which establishes the conditions of entry into the judiciary, states that the entrance examination is open to anyone who holds

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either a Bachelor’s degree in private law or a diploma in sharıˆ ‘a issued by the Sharıˆ ‘a Faculty of Qarawiyyıˆn University after four years of study.8 The first Institute of the Judiciary, called the “National Institute of Judicial Studies,” was created in 1970. Today, the institution authorized to train future judges is the Supreme Institute of the Judiciary,9 which offers trainees a two-year course in all legal subjects, combining theoretical courses and practical internships. Only two specialized classes in family justice were offered in 2004 and 2005. In Egypt, the process of codification extended to the field of family law with the adoption of a series of legislative enactments, starting in the 1920s. These enactments adopted doctrines from different schools, using the techniques of takhayyur and talfıˆq.10 Substantive personal status law reforms were issued again in 1985 and 2000.11 Reforms in the field of Muslim personal status have proceeded gradually and in a piecemeal manner. Significant parts of the law remain uncodified. When there are gaps, Article 3 of Law No. 1 of 2000 refers judges to the predominant opinion of the Hanafi school.12 The reforms adopted in Egypt in these domains have been mainly procedural rather than substantial. For example, Egyptian law does not include a provision that defines the marriage contract and its conditions. Hence, the fundamental conditions relating to the validity of marriage are governed by Hanafi doctrine, according to which a marriage does not have to be registered with state authorities to be valid. However, Egypt has precluded courts from hearing disputes arising out of marriages for which an official certificate has not been obtained. Egypt has also discouraged the practice of early marriage by denying judicial relief in cases in which a spouse was not old enough to receive an official marriage certificate (Article 17 of Law No. 1 of 2000). However, the authority of the state and its ability to regulate marriage continues to be undermined by the survival of the so-called customary marriage (zawaˆj ‘urfıˆ), which is unregistered. Although such a marriage is valid from a religious perspective, no rights or duties arising from it can be enforced in the courts. However, Law No. 1 of 2000 introduced an important change in this regard by allowing a woman to petition the court for a divorce, on the condition that she provides any kind of written evidence of her marriage (Dupret, 2007a; Berger and Sonneveld, 2010: 74; Lindbekk, 2013: 91). Claims of marriage authentication (ithbaˆt al-zawaˆj) are often filed when the marriage contract was not registered, or in cases in which one party denies the existence of marriage. An analysis of court records indicates that lawsuits over the authentication of marriage are frequently accompanied by a request to establish paternity for children. This finding suggests that the two case types are closely intertwined.

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In 2004, family courts were established to facilitate the handling of personal status law disputes and to help to resolve disputes amicably. In the wake of the new law, court personnel were provided with computers, with the stated purpose of rationalizing legal practice by making it more uniform. A remarkable feature of contemporary court practice is the widespread use of judgment templates. These templates are not drafted by the Ministry of Justice; rather, they are the product of an informal dialogue within the judiciary on the basis of which family court judges model their rulings on the judgments of other judicial panels. Judges who were interviewed said that when they were initially appointed to family courts, they spent a great deal of time reading their colleagues’ decisions for guidance on how to do their jobs correctly. Consequently, they developed eighteen or so different templates based on the abstract descriptions of cases and rules provided by lawyers at the time of filing lawsuits, such as marriage authentication (Lindbekk, 2016). Offering model judgments, such templates facilitate the application of law by helping judges to manage their caseloads more efficiently. The use of these templates has created a high degree of uniformity in family court practices, despite the discretionary power exercised by judges. Another factor that contributes to judicial predictability in decisions relating to family matters is the legal education and training of judges. Contemporary legal education developed in the nineteenth century in response to the adoption of legal codes and the restructuring of courts (Berger and Sonneveld, 2010, 53–4; Wood, 2016). However, although the education of law students largely reflects civil law sentiments, Islamic law and Islamic legal theory are still taught at al-Azhar’s Faculty of Sharıˆ ‘a and Law and at other state universities, albeit in a highly circumscribed fashion (Cardinal, 2005: 227). In 2006, 32,000 law students were enrolled in Cairo University’s Faculty of Law. The faculty is made up of three sections: Arabic, French, and English. The tuition fees paid by students enrolled in the French and English sections are higher than those paid by students enrolled in the Arabic section. Students trained in the English and French sections are more likely to join the judiciary or corporate law firms. The same curriculum, however, is offered in all three sections and addresses matters unrelated to the sharıˆ ‘a. Faculty offer courses in public and private law, combined with four compulsory classes in “Islamic sharıˆ‘a” that focus on the codified rules of marriage, divorce, and inheritance (Shalakani, 2006: 851–2). Hence, Egyptian personal status law today is implemented by judges who are largely trained in positive, codified law, not in traditional Islamic fiqh. During the sultanate period (thirteenth to eighteenth centuries), marriage among Muslims in the Indonesian archipelago was regulated by the qaˆdıˆ,

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mainly applying Shafi‘i fiqh, but also local customs and traditional norms.13 After the beginning of European colonization, in the late eighteenth century, there was a shift toward a European-style legal system. With regard to the regulation of marriage, the Dutch Civil Code was applied to Europeans, Japanese, and Chinese from the first half of the nineteenth century, while “Orientals” (Arabs, Indians, and Pakistanis, as well as Southeast Asians) were subject to the customary laws of their respective countries of origin (Bedner and van Huis, 2010: 177). Whereas Indonesian Christians were subject to Dutch government regulation, Indonesian Muslims were subject to Islamic law or customary law (hukum adat). These regulations were replaced by Law No. 32 of 1954, which applied to all Muslims in Indonesia. The Ministry of Religious Affairs designated thirteen fiqh books to be used as reference by religious courts to promote uniformity in decision-making.14 Until the end of Soekarno’s “Old Order” in 1966, the situation remained unaltered, and the registration of marriages, divorces, and reconciliations took place under a pluralistic legal system governing the family. During the “New Order” of Soeharto (1966–98), Marriage Act No. 1/ 1974 replaced all earlier regulations. Thus, “sharıˆ ‘a-compliant” family law became state law, applying to all citizens regardless of religion, ethnicity, and race. The Marriage Act was supplemented and elaborated upon in Government Regulation No. 9/1975 on marriage and the Compilation of Islamic Law (KHI) No. 1/1991.15 Under these laws, the registration of marriage is obligatory. Article 2(2) of the 1974 Marriage Act states: “All marriages shall be registered in accordance with applicable regulations.” With regard to marriages that are not registered, Article 49(2), paragraph 22, of Religious Judicature Act No. 7/ 1989 provides that a “religious court may legalize a marriage that was concluded before the Marriage Act No. 1/1974.” As for marriages that occurred after 1974, Article 7(3) of the KHI of 1991 authorizes parties to apply to the court for marriage authentication (itsbat nikah, in Indonesian; ithbaˆt al-nikaˆh, in Arabic), but limits the availability of an authentication to five circumstances: “(a) to make a formal divorce possible; (b) the marriage certificate is lost; (c) the legality of the marriage is in doubt; (d) the marriage was concluded before the 1974 Marriage Law; or (e) the marriage was concluded by a couple who were permitted to marry according to the Law of Marriage No. 1/1974.” The Indonesian Supreme Court is responsible for selecting judges. In 2017, the Supreme Court recruited 1,484 judges: 907 for the civil courts, 543 for the religious courts, and 34 for the administrative courts. To become a judge, a candidate must pass a three-step exam: (1)

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administrative selection; (2) a basic competency test (general knowledge, a scholastic test, and a personality test); and (3) a special competency test (legal knowledge, interview, and psychology test). A candidate must be at least twenty-two years of age and thirty-two at the most. Any candidate who wants to become a religious court judge must be: (1) a Muslim; (2) pious (takwa) toward the Unique God; (3) loyal to the Pancasila and to the Indonesian Constitution; (4) in possession of a Bachelor’s degree in Islamic law or a Bachelor’s degree in law with a deep understanding of Islamic law; and (5) able to read and understand kitab kuning (Arabic fiqh books). All successful candidates must undergo a two-year period of judicial training and education. If they are successful, candidates are appointed as judges and posted throughout Indonesia. The majority of Indonesian religious court judges graduated from one of the Faculties of Sharıˆ ‘a of the fifty-three State Islamic Universities/State Institutes in Islamic Studies. Today, there are approximately 3,700 judges, of whom 20–25 percent are women, in 359 religious courts of first instance and 29 religious courts of appeal. In sum, Morocco, Egypt, and Indonesia have all constructed a legal and judicial system that codifies fiqh in particular ways and specifies the rules that judges must apply in the cases referred to them. These systems have also defined the path to be followed in cases in which legislation is silent. They have done so in different ways, according to the specificities of their respective legal histories. However, they share a converging dynamic that results in a common pattern of legal standardization. 8.3 MARRIAGE AUTHENTICATION: HOW DO JUDGES MANAGE THE REFERENCE TO FIQH?

We now turn to judicial practice in the field of family law when no legislation provides guidelines for the decision-making process. This is the case, to varying degrees, for marriage authentication, which is not subject to any – or only to limited – legislative regulations in the three countries under consideration. In the face of statutory silence, judges are instructed, again to a varying extent, to seek the applicable fiqh provisions. We will examine how they do so, that is, which methods they use to identify the applicable rules and to legally characterize the facts of the case. Before the 1912 Treaty of Fez, Shra‘ judges in Morocco based their judgments on Maliki fiqh and fatwaˆ books. These included al-Mukhtasar of Sheikh Khalil, al-Tuhfa of Ibn ‘Asim, Laˆmiyat al-Zaqaˆq of Abu al-Hasan ‘Ali b. Qasim, Tabsirat al-Hukkaˆm fıˆ Usuˆl al-‘Aqdiya wa’l-Ahkaˆm of Ibn Farhun,

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Bidaˆyat al-Mujtahid wa Nihaˆyat al-Muqtasid of Ibn Rushd, al-Qawaˆnıˆn alFiqhiyya of Ibn Juzayy, al-Risaˆla of Abu Zayd al-Qayrawani, Manzuˆmat al‘Amal al-Faˆsıˆ of ‘Abd al-Rahman al-Fasi. As for the fatwaˆ compilations, the most famous are the Mi‘yaˆr of al-Wansharisi, the Nawaˆzil of al-Mahdi alWazzani, and the Nawaˆzil of al-Sharif al-‘Alami (Ghmija, 2000: 12–13). In his al-Abhaˆth al-Saˆmiya fıˆ al-Mahaˆkim al-Islaˆmiyya, first printed during the Spanish protectorate, Shaykh Muhammad al-Murir al-Titwani (2011: 246) proposed that Islamic law should be codified within the framework of a plan to reform the Shra‘ courts. Some modern textbooks are used by judges in family disputes and in matters relating to nonregistered real property. In this regard, we might cite the Qaˆmuˆs Mudawwanat al-Ahwaˆl al-Shakhsiyya by Khalid Binnis, al-Ahwaˆl al-Shakhsiyya wa’l-Mıˆraˆth fıˆ al-Fiqh al-Maˆlikıˆ by Muhammad al-‘Alawi al-‘Abidi, and al-Dalıˆl al-‘Amalıˆ li’l-‘Aqqaˆr ghayr alMuhaffaz, written by seven judges assigned to the appellate court of Fez. In these books, the authors cite from the abovementioned Maliki books, which they relate to the respective provisions of codified laws. We will now consider two cases that are representative of the actions performed by judges to fill gaps in the legislation: (1) The first is Case No. Case No. 217/07 of September 20, 2007, from the Court of First Instance of Abi Lja‘d. In this case, two spouses filed a petition to authenticate a nine-year marriage from which two children were born. Following an initial administrative inquiry, the court heard the testimony of three witnesses who testified that the two spouses had been “continuously married” for nine years. In its ruling, the court first cited the exception stipulated in Article 16 of the 2004 Family Code – see Section 8.2: “If, for reasons of force majeure or act of God, the marriage contract was not officially registered in due time, the court may take into consideration all legal evidence and expertise.” This exception is based on Maliki fiqh, to which judges refer in application of Article 400 of the same code. The fiqh provides that a couple may not have conjugal relations before the conclusion of the marriage contract. However, in the absence of a contract, the marriage is not void, as specified in a fatwaˆ by Ibn Lubb (d. 782/1382) cited by al-Tasuli (d. 1258/ 1842), in explanation of Ibn ‘Asim’s (d. 482/1089) statement: “Before marriage consummation, testimony is imperative. It completes the establishment [of marriage]” (wa fıˆ’l-dukhuˆl al-hatam fıˆ’l-ishhaˆd wa huwa mukammil fıˆ’l-in‘iqaˆd).16 Accordingly, a wedding celebration, with the knowledge of the woman’s legal guardian and both spouses, is sufficient to validate the marriage, even in the absence of witness testimony. Therefore, if the marriage and its consummation have been publicized, there should be no punishment for

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illegitimate sexual intercourse (hadd al-zinaˆ), and the marriage is established, in order to protect the couple’s conjugal relations and the legitimacy of their children. According to Sheikh Khalıˆl, a marriage may be established even by hearsay testimony (bayyinat al-samaˆ‘). His opinion was also the basis for Article 16 of the Family Code. In this case, fiqh was used to justify the acceptance of a petition for marriage recognition as an exception to the normal requirement of registration. The Court of Cassation confirmed this opinion when explaining what is meant by the “exceptional situation” (al-haˆla al-istithnaˆ’iyya) or “state of exception” (haˆlat al-istithnaˆ’) required under the 1957 PSC.17 In its ruling of June 13, 1983, the Court of Cassation confirmed a ruling issued by the Court of Appeal of Casablanca recognizing a marriage concluded in Casablanca by recalling that the appellate court had properly justified the “state of exception,” that is, legally explained the exception to the rule of marriage registration, by citing scholars, including Ibn Lubb and Sheikh Khalıˆl Khalil, on the celebration and consummation of marriages, when the spouses and legal guardian are known, and the subsequent birth of children (Ghmija, 2000: 81). We should note that fiqh was used in the same way before and after the adoption of the 2004 Family Code to justify a “state of exception,” force majeure, or an act of God, which it defined as a special material or legal situation normally not subject to the general legal provisions that, by definition, are applicable in any circumstances. (2) In a second case, No. 348/2/1/2007, dated November 5, 2008,18 the wife filed a petition before the Ben Slimane Court of First Instance to authenticate a nonregistered marriage, claiming that she had been married to the defendant since 1996 and that the marriage had resulted in the birth of a child. In this case, the issue was related to the legal quorum of witnesses, with regard to which Maliki doctrine accepts a particular mode of evidence called lafıˆf, that is, the conventional testimony of a group of witnesses (shahaˆdat al-lafıˆf). After hearing the testimonies of six witnesses, the court rejected the petition. Subsequently, however, the Court of Appeal annulled the first instance judgment and authenticated the marriage of the plaintiff. At the subsequent cassation level, the cassation petitioner held that the quorum of witnesses had not been reached, as only six of the twelve lafıˆf witnesses were present. In its ruling, annulling the appellate decision, the Court of Cassation stated: “Though Article 16 of the Family Code allows, as an interim measure, marriage recognition, it is nevertheless required that testimony reach the legal quorum represented in two righteous witnesses (shaˆhidaˆn ‘aˆdilaˆn) or a lafıˆf of

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twelve witnesses, as established in the well-known and common ‘amal custom (al-mashhuˆr wa maˆ jaraˆ bihi al-‘amal).” Although the Court of Cassation did not cite any source, it is reported in al-Mahdıˆ al-Wazzaˆnıˆ’s Nawaˆzil that Abuˆ ‘Abdallaˆh b. al-Hajj, judge of Chefchaouen, said that “the testimony of ordinary witnesses through lafıˆf is admissible and current in judicial practice. The minimum number required in lafıˆf is twelve, on the condition that the person against whom the testimony is addressed has no proof of incapacity against them.”19 An earlier judgment of the Court of Cassation, dated July 18, 2006, stated: “The legal quorum for testimony is two righteous witnesses or a lafıˆf of twelve witnesses, as established in the well-known provisions of Maliki doctrine. The [appellate] court breached fiqh rules when it based its judgment for marriage recognition on the testimony of only three non-righteous witnesses (shuhuˆd ghayr ‘aduˆl).” These two rulings, issued under Article 16 of the 2004 Family Code, reiterated a judgment dated May 19, 1975, which stipulated: “Though the state of exception is proved, marriage cannot be established unless attested by a lafıˆf of twelve witnesses.” However, it is remarkable that, in the legislative and sociopolitical context of Article 16, the reference to these fiqh provisions was presented as a means to put an end to nonregistered marriages.20 Since the entry into force of the 2004 Family Code, many judges have granted marriage recognition based on the testimonies of at least two witnesses in cases in which both spouses consent. Practically speaking, we may assume that the fiqh provisions referred to in the ruling of the Court of Cassation are applicable only in contentious cases, that is, when one of the two spouses contests the marriage. Nevertheless, the preference in Court of Cassation case-law is to adhere to Maliki doctrine, which it considers to be protective of the marriage institution, while Article 400 of the 2004 Family Code offers the possibility of a more flexible interpretation. The Court of Cassation might have referred, for example, to Hanafi doctrine to introduce a wider margin of action for the trial judge; in this regard, other criteria, such as the presence of witnesses at the conclusion of the contract or hearing the exchange of consent and other contract conditions, might have been used to evaluate the testimony. Marriage authentication constitutes one of the main domains in which Egyptian judges invoke fiqh in the absence of formal legislation. Since Egyptian law does not instruct judges on how to identify the proper fiqh rule, courts exercise considerable discretion. In that respect, templates offer a relatively secure guide for issuing the proper solution. Once a judge has made a decision about the legal category to which a case belongs, he or she needs only to fill in a few details pertaining to names

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and dates to produce a ruling. In the case of marriage authentication, a template has been adopted by several judicial panels in different family courts.21 The following two cases exemplify how Egyptian family court judges use this template: (1) In the first lawsuit, a female plaintiff filed a petition before the family court of al-Zaytun on July 28, 2011, requesting the authentication of her marriage with the male defendant, based on a customary marriage contract (‘aqd zawaˆj ‘urfıˆ). The court stated: According to Article 17 of Law No. 1 from 2000, the court is not allowed to hear claims arising from a marriage if the wife is less than sixteen years old and the husband less than eighteen at the time of filing the case. . . . It is widely accepted that marriage is a contract that unites (‘aqd al-indimaˆm) and couples (izdiwaˆj) a man and a woman. The dower (al-mahr) is a condition regulating its conclusion, but not a pillar [viz., a requirement]. Al-shar‘ stipulates that marriage is a contract that allows a man and a woman to [sexually] enjoy (istimtaˆ‘) each other (The Sharıˆ ‘a-Ordained Rules of Personal Status, by Ahmad Ibrahim and Wasal ‘Ala al-Din, p. 65). The validity of the marriage contract is determined by the following conditions:

1) The offer and acceptance by competent parties within the same sitting; 2) The contracting parties must be able to hear and understand what is said; 3) The acceptance of the offer is specified or implied. The following conditions are also required for the marriage contract to be valid: A) There should be no temporary or permanent impediments [to marriage]; B) Two male Muslim witnesses who have reached puberty and are of sound mind should be present. They should be two men, or two women and one man. The Court of Cassation considers any marriage concluded without witnesses to be invalid in accordance with the Hanafi madhhab (Court of Cassation, Case No. 73, judicial year 1957, 23 May 1989). The witnesses should be Muslim if the spouses are Muslim. However, they may be Christian or Jewish if a Muslim marries one of the People of the Book, in accordance with the opinions of Abu Hanifa and Abu Yusuf. Both parties to the marriage contract should be free, beyond puberty and of sound mind. If a woman is adult and sound of mind, she may marry herself without a guardian (walıˆ). The marriage is considered valid and comes into effect on the condition that the groom is of the same social standing (kafaˆ’a) and the dower compatible (mahr al-mithl) or larger. In practice, the Court of Cassation has established that the marriage of an adult woman is considered valid (whether or not she is a virgin) (Court of Cassation, Case No. 194,

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judicial year 1963, 19 October 1998) and it is binding for the guardian (walıˆ) so long as she is married with a dower that is suitable or larger.22

The judicial panel begins this judgment by citing a legislative provision regarding the impossibility of hearing cases in which the spouses are below the ages of sixteen and eighteen, respectively. Subsequently, the panel quotes a definition of marriage from a contemporary legal commentary on personal status law. Turning to the conditions of a valid marriage contract, the judicial panel states that the validity of a marriage is determined by the offer and acceptance of competent parties. According to these requirements, a marriage is a verbal contract that does not have to be registered with state authorities in order to be valid. Furthermore, the parties to the marriage contract must have reached puberty and be of sound mind. The court then proceeds to list the necessity of the presence of mentally sound and adult witnesses to the contract, citing the leading scholars of the Hanafi school, Abu Hanifa and Abu Yusuf. Finally, the judge refers to the opinion of the Court of Cassation that invokes traditional Hanafi doctrine regarding the competence of an adult woman to conclude a marriage. An adult woman’s right to marry without her guardian’s agreement is a question much debated among Hanafi scholars and there is no consensus among jurists as to the most appropriate view (Cuno, 2015; Peters, 2002). Instead of laying out the plurality of interpretations regarding consent within the Hanafi school, contemporary family court judges – in line with the Court of Cassation – appear to hold that an adult woman has the right to be married without the involvement of a guardian. However, the position adopted by most judges is not unambiguous. Although the preponderant Hanafi view acknowledges the right of an adult, mentally sound woman to conclude her own marriage, judges restrict her legal capacity by referring to another Hanafi rule that makes the validity of the marriage contingent on the groom’s suitability and ability to provide her with a dower compatible with her social status. Because the female plaintiff had submitted a customary contract signed in the presence of two witnesses and which fulfilled the conditions for a valid marriage contract, the court decided to authenticate it. (2) The template selected by the judicial panel in the latter case resembles the one used by another family court four years earlier, in 2008, shortly after the courts were equipped with computers.23 Marriage authentication requests are usually submitted by women, sometimes within days of the marriage. However, they are occasionally lodged by men. In this case, a man lodged a lawsuit before the family court of ‘Ayn Shams requesting the authentication of his marriage to the female defendant based on a customary marriage contract concluded on January 10, 2003.

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During the course of the proceedings, he attended in person with a lawyer and presented a portfolio of documents that included the customary marriage contract. According to this contract, he had married the female defendant in the presence of two male witnesses and presented her with a dower of 5001 Egyptian pounds, 5,000 of which were deferred. At this point, the court decided to adopt the template described in the previous paragraph. As in the former case, the court upheld the suit because the male plaintiff had established the facts of the case to the court’s satisfaction. These two cases illustrate how the predominant Hanafi opinions embedded in the templates are integrated into judgments according to the details of the case at hand. It is thus possible to trace continuities between substantive Hanafi rules and contemporary judicial reasoning in Egyptian family courts. Although judges present their reasoning as falling within the parameters of mainstream Hanafi fiqh, the sources and methodology they use differ considerably from it. While some judges are more erudite than others, court records reveal that family court judges rarely seek guidance in the authoritative collections of classical Muslim scholars (fuqahaˆ’). Nor do court rulings defer to Qadri Pasha’s codification of Hanafi doctrine, which was frequently referenced by Egyptian judges in personal status matters until the end of the last century (Dupret, 2007b). Instead, they generally refer to Hanafi fiqh through the medium of the Court of Cassation and a body of contemporary works of jurisprudence. These works, which are clearly embedded in the civil law tradition, are divided into chapters that follow the sequence of articles in the personal status legislations in chronological order. Thus, while judges deploy a vocabulary connected to traditional fiqh, the grammar of their legal reasoning is that of civil law. The widespread use of templates thus tends to reduce the heterogeneity and open-endedness of fiqh so as to make it available to judges trained in civil law. In Indonesia, Article 7 of the Law of Marriage No. 1/1974 provides judges with very little guidance on how to handle marriage authentication cases. However, this does not mean that judges refuse to accept requests for itsbat nikah. Under Indonesian law, all courts, including religious courts, are compelled to hear a case even in the absence of legislation governing the matter (Article 10 of Judicial Authorities Act No. 49/2009). When confronted by an issue about which the law is either silent or ambiguous, judges in Indonesia’s religious courts have two templates to which they may refer: (1) the SIADPA template (Sistem Informasi Administrasi Perkara Pengadilan Agama, Administration and Information Systems of Religious Court Cases); and (2) the SIPP template (Sistem Informasi Penelusuran Perkara, Information System for Case Searching).24 Alternatively, they may use the

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Unofficial Compilation of Shafi‘i Fiqh Texts (UCSFT).25 It should be noted that Supreme Court regulations require religious court judges to use the standardized template.26 When issuing decisions on marriage authentication, Indonesian religious judges refer to one or more of the statutes and regulations in force.27 In almost every decision issued by Indonesian religious judges, each sentence begins and ends with identical language. These formulas are taken from the SIAPDA/ SIPP template. Below are three representative examples. (1) Case No. 57/Pdt.P/2016/PA.Mj from Majene, West Sulawesi was filed by a couple who were married in a religious ceremony in 2005. They appeared before the court in 2016 because they needed a marriage certificate in order to obtain birth certificates for their three children. In this case, the court used only the SIADPA/SIPP template: Considering that, based on the facts mentioned above, the marriage was [carried out in] compliance with Article 2(1) of the Marriage Law No. 1/1974 plus Article 10(2) of the Government Regulation plus Articles 14 to 44 of the KHI. There are no legal impediments to the couple marrying under Law No. 1/1974. Similarly, the case satisfies the requirements stated in Article 7(3-E) of the KHI.28

Here, the court simply applied the KHI without any reference to fiqh. After hearing the testimony of two male witnesses and examining the documentary evidence, the judges listed provisions to be followed for a marriage to be valid. They directly copied the template’s formula and pasted it in their decision. (2) Case No. 110/Pdt.P/2014/PA.Pdlg relates to a petition for a marriage certificate filed in the Religious Court of Pandeglang (Banten) in 2014. The petitioners married in 1981 and had six children. They did not have a marriage certificate because the marriage registrar failed to record their marriage in the Office of Religious Affairs. In this case, the court used both the SIADPA/SIPP system and the UCSFT compilation. After verifying the evidence and receiving the testimony of two witnesses, the judges rendered their decision, based on Article 49(2) of Religious Judicature Act No. 7/1989, Article 2(2) of Marriage Act No. 1/1974, and Article 7(3-E) of the KHI. The judges reproduced the template, as illustrated by the following excerpts from two decisions, which conform exactly to the SIADPA/SIPP template. After the enactment of (Religious Judicature) Act No. 7/1989, the procedure for marriage authentication is based on Article 49(2). The jurisdiction of religious courts over marriage under Law No. 1/1974 includes the

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authentication of marriages concluded before 1974. The same explanation is found in Law No. 3/2006 amending Law No. 7/1989. Based on these regulations, the law governing the authentication of marriage remains the same and marriage authentication is for marriages concluded before 1974.29 Based on the aforementioned explanation, there is no legal basis for marriage authentication for marriages concluded after 1974. Under Law No. 1/1974, they [viz., such marriages] are not legally authorized. However, Article 7(3) of the KHI introduces a minor modification that allows [the courts] to accept a petition for a marriage authentication. It states that marriage authentication can be requested by anyone, provided there are no legal impediments to the marriage according to Law No. 1/1974.30

As the marriage was concluded after 1974, it could not be authenticated. The judges noted that there is a lack of clarity in the text. To clarify this issue, they referred to the objectives of the sharıˆ‘a and, in particular, to the notion of the protection of progeny (hifz al-nasl), which legitimates a marriage authentication in order to protect the rights of children. The judges copied the arguments of their rulings from the SIADPA/SIPP template system: Considering that, in addition to the above considerations and explanations, there are sufficient reasons to consider the request of the applicants carefully, even though the marriage they contracted occurred after 1974: In fact, it [viz. granting marriage authentication] is consistent with the purpose of marriage itself in the framework of protecting progeny (hifz al-nasl), in addition to protecting the wife. In addition, social reality demonstrates that many children and wives are neglected in various ways when the legal relationship between the children and their father or between husband and wife is not clear. In the same way, this [viz. marriage authentication] has already reached the level of necessity (daruriyyat), which makes it imperative. If the marriage is not registered and thus not officially documented, it harms (madarat) the interests of the wife and children. If an unregistered marriage is not authenticated (itsbat nikah), a wife cannot sue her husband to demand her rights [if a contention arises], and the children will not have birth certificates and other civil administration documents, in addition to facing other problems.31

In the last step, the judges supported their decision by citing to the UCSFT: Considering that judges need to draw on the opinion of a Muslim jurisconsult as the basis of their argumentation: This opinion is contained in the kitab I’anatut Thalibin, vol. IV p. 25432: wa fıˆ al-da‘waˆ bi-nikaˆh ‘alaˆ imra’a dhikr sihhatihi wa shuruˆtihi min nahwa walıˆ wa shaˆhidayn ‘aduˆl (in petitions regarding marriage with a woman, its validity and conditions must be mentioned by a guardian and two just witnesses). Based on the aforementioned

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considerations, the request of the applicants is based on sufficient reasons and is therefore granted.33

Based upon this Shafi‘i fiqh text, the judges authenticated the marriage on the grounds that, as confirmed by written evidence and two male witnesses, it had been celebrated by the imaˆm, authorized by the walıˆ (the father), witnessed by two males, and attended by a large public. In this case, the judges used the SIAPDA/SIPP template with a reference to maqaˆsid al-sharıˆ ‘a and to the UCSFT. (3) Case No. 0103/Pdt.P/2016/PA.Klk is from Kolaka, Southeast Sulawesi. The couple contracted a marriage that fully conformed to the requirements of fiqh. In 2016, they petitioned the court to authenticate their marriage in order to obtain a certificate that made it possible for them to acquire birth certificates for their five children. In this case, the court used both the SIADPA/SIPP template and the UCSFT. After verifying the documentary evidence and hearing the testimonies of two female witnesses, the judges cited the applicable statutes: Article 49 of Religious Judicature Act No. 7/ 1989, as amended by Law No. 3/2006 (“a religious court may legalize a marriage that was concluded before the Marriage Act No. 1/1974”); Article 2 of Marriage Act No. 1/1974 (“all marriages shall be registered in accordance with applicable regulations”); and Article 7 of the KHI (“parties may apply to the court for marriage authentication”). The judges borrowed directly from the SIAPDA/SIPP template. They copied its formula and pasted it in the decision. However, the court considered the statutory texts to be unclear. Thus, it turned to the UCSFT and included a verbatim quotation in the decision to bolster its argument: Whereas the petition of applicant I and applicant II are in accordance with the arguments contained in the kitab:

1) I‘anatut Thalibin, juz IV, p. 253–25434: wa fıˆ al-da‘waˆ bi-nikaˆh ‘alaˆ imra’a dhikr sihhatihi wa shuruˆtihi min nahwa walıˆ wa shaˆhidayn ‘aduˆl (in petitions regarding marriage with a woman, its validity and its conditions must be mentioned by a guardian and two just witnesses); 2) Tuhfa, juz IV, p. 13235: wa yuqbalu iqraˆr al-baˆligha al-‘aˆqila bi-l-nikaˆh (the acknowledgment made by a woman who has attained puberty and is in possession of her mental faculties is accepted). Based on these two Shafi‘i fiqh texts, the judges authenticated the marriage. In this case, they used the fiqh and its methods as exposed in the UCSFT.36

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The judges asked the petitioners to prove that the marriage was concluded in the presence of the legal guardian and witnessed by two males. The petitioners brought two female witnesses who confirmed that the marriage had been celebrated by the imam of the mosque, after the authorization of the walıˆ (the father) who was present at the time of the marriage, witnessed by two males, and attended by a large audience. In family matters, Indonesian Muslim judges base their decisions on positive and codified law. In practice, they use different templates. When the legislation is silent, they also use an uncodified Islamic compilation. As a result, adjudication is standardized, reducing legal uncertainty and transforming the nature of rules and procedures. 8.4 CONCLUSION: THE LEGAL POSITIVIZATION OF ISLAMIC NORMATIVITY

Reflecting a new conception of family public order, Article 400 of the Moroccan Family Code established a large scope for ijtihaˆd without giving judges any guidance regarding the criteria for selecting the relevant sources, thus granting them a quasi-legislative role with respect to all issues not addressed by the Code. In the absence of criteria standardizing this new ijtihaˆd, judges bypass or fill gaps in legislation in the same way as they did under the 1957 PSC, namely, by citing the same sources of Maliki fiqh.37 However, contemporary judges who are graduates of law faculties do not have the same jurisprudential and epistemological background as graduates of Qarawiyyıˆn University had in the past. In this situation, the Court of Cassation plays a major role in harmonizing interpretation and providing guidance for trial judges. The case-law guidelines it publishes are easily available, providing judges with excerpts and citations from Maliki scholars in matters of noncodified family law. The Supreme Institute of the Judiciary plays a similar role, at the level of both initial training and continuing education, thereby contributing to the standardization, harmonization, and updating of judges’ work. In Egypt, despite considerable continuity with traditional Hanafi doctrine, the sources and methodology followed by judges differ from those of classical fiqh. Rather than citing classical works of Hanafi fiqh, the Court of Cassation’s precedents and contemporary compendia of case-law provide judges with vast array of legal solutions. Contextual factors also play a major role. Judicial training, coupled with time constraints and the influence of computer technology, account for these changes. In particular, the introduction of computers, which makes it possible to reproduce the same formulas repeatedly

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through the medium of templates, has dramatically reduced the open-ended nature of legal debates in classical fiqh. In Indonesia, the three cases presented here point to the standardization of decision-making in the practice of religious courts. The presentation and form of court decisions follow the standard through the SIAPDA/SIPP template and the reference to the UCSFT, enabling judges to do their work quickly and efficiently. Judges choose the template appropriate for the case and, to produce their decision, need only complete a form provided on the website of the SIAPDA/SIPP. To fill a gap in the legislation or to clarify an equivocal legal text, judges refer to the nonofficial compilation of Shafi‘i fiqh texts to support their decisions. The UCSFT is composed of citations from Shafi‘i fiqh that help judges with a heavy caseload to substantiate their decisions quickly. Consequently, the challenge they face is to find a citation from the UCSFT on which they can base their decision. This citation is then pasted into the draft of the ruling. In Morocco, Egypt, and Indonesia, it is not so much the reference to substantive rules of Islamic fiqh that has disappeared from law as it is the mode of reference to these rules that has substantially changed. As Dupret (2007b; emphasis added) stated, in his study of Egyptian practice: The reference to Islam is occasional; moreover, it is always mediated through the use of Egyptian law’s primary sources, that is, legislation and case-law. Henceforth, this reference takes place in the banality and the routine of judge’s activity, which consists mainly in legally characterizing the facts submitted to him. By so doing, the judge is obviously more interested in manifesting his ability to judge correctly – according to the standards of his profession, the formal constraints that apply to its exercise, the legal sources on which he relies and the norms of the interpretive work his activity supposes – than he is to reiterate the Islamic primacy of the law he implements.

Judicial work proceeds through the mediation of present-day Egyptian legal cognition and practice, which is not primarily “Islamic” but “national” and “positivist.” Does this change have any effect on what is called “Islamic law”? In his Pragmatism in Islamic Law (2015), which is partly an interrogation of sharıˆ ‘a and the trajectory leading it into modernity, Ahmed Fekry Ibrahim contends that there is room in Islam for a process of legal reform that preserves authenticity through an engagement with scriptural sources. He criticizes scholars like Wael Hallaq and Nathan Brown who consider contemporary legal reform as unauthentic, based on the fact, for example, that it does not preserve “the organic connection with traditional law and society” (Ibrahim, 2015: 6). According to Hallaq (2004), the traditional rules one finds in the laws

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of nation-states are unauthentic remnants that are disconnected from the substance and methodology of classical fiqh. Ibrahim takes a different position: The question of law must be framed in terms of continuity, not rupture, despite the legal dynamics created by codification and some major transformations (e.g. a new class of lawyers, the transformation of jurisconsult-made law into legislation-made law). Interestingly, Ibrahim shows that the changes that took place during the process of legal modernization are related to the emphasis placed on the content of rules rather than on the methodology of their identification. In this view, what is called today a “return to sharıˆ ‘a” is in fact a reinstatement of substantive Islamic law (Ibrahim, 2015: 222). Ibrahim’s thesis raises some conceptual problems. While insisting on the upheaval created by codification and on the transformation of processual law into substantive law, Ibrahim might have considered the extent to which this transformation of law constitutes a legal revolution. He fails to do so because this line of thinking would undermine his argument for continuity. In fact, however, his argument is inverted: it is not present-day Islamic law that finds its roots in fiqh, but fiqh that finds an extension in present-day substantive law. In other words, if there is a continuity, it is that not of the concept of law but rather of the substance of rules that previously were part of fiqh but have been transformed into positive law. The question is obviously not, as Hallaq (2004) and Brown (1997a: 359) suggest, one of authenticity – authenticity is not an essential property of things but an attribute that is ascribed to them; rather, it is a question of a revolution in the normative sphere. This is what the people Ibrahim calls “purists” understood when considering codification as an instance of secularization. Another flaw in Ibrahim’s argument is his tendency to concentrate on people who are marginal to the evolution of Egyptian family law, that is, the fuqahaˆ’, despite the fact that the law-making process is currently in the hands of the legislative power. To sum up, pace Ibrahim, it is not Islamic law that changed in nature but Islamic fiqh that was transformed into positive law. This transformation is not specific to sharıˆ‘a, fiqh, or Islamic law. By the end of the eighteenth century, what we call “law” had undergone a major conceptual transformation: from a means of subjugation to a means of governance. Law was intended to become a “science,” which, like other contemporary sciences, aspired to be all-encompassing, systematic, regular, and mechanical. Enlightenment and Benthamite utilitarianism paved the way for positive law. Linked to a form of social planning, codification served to construct a new order and became the epitome of legal rationalization (Halpe´rin, 2014: 35). In this regard, codification diverges substantially from compilation, which does not seek to achieve a new and complete legal order. Although claiming to be

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continuous with a normative and doctrinal past, new legal codes enacted in the early nineteenth century led to the “substitution of an old legal order by a new one” (Halpe´rin, 2014: 44). A parallel may be drawn between these features of systematization in civil law countries and the evolution, in Common Law systems, of the rule of precedents and the publication of law reports (Halpe´rin, 2014: 56). Beyond the systematization of legal rules, judicial institutions were reformed, legal professions were reorganized, and legal education was reinstituted under the monopoly of a new figure: the state. This process accelerated with the growing accessibility of print technology (Rubin, 2011: 89), and, at the end of the twentieth century, with the digitization of judicial work, which greatly contributed to the homogenization of judicial resources. Within the framework of codes, rules have the explicit function of providing legal stability. Arguments for rule-based decision-making traditionally focus on the capacity of rules to foster the interrelated virtues of reliance, predictability, and certainty (Schauer, 1991: 137). However, rules are not the only device by which people predict and thus rely on the actions of others. Consequently, the ability of rules to foster more predictability and more justified reliance turns on the simplifying properties of rulebased decision-making, on the way in which the commonality of classification and outcome that make reliance possible are more likely present with fewer possible outcomes and fewer and larger classificatory categories. Rules assist reliance by providing this simplification, and also by providing a public categorical designation, such that the likelihood of divergent categorization by enforcer and addressee diminishes when both are looking at the same rule. (Schauer, 1991: 139)

This is a process of double standardization: standardization of rule formulation and standardization of rule interpretation. At the level of rule formulation, the standardization process consists of the insertion of rules into a normative system whose hierarchy is both static – it seeks conformity in terms of the content of inferior rules vis-a`-vis superior ones – and dynamic – it seeks procedural conformity in the adoption of rules (Troper, 1994: 194). In positivist theory, rules are part of a system in which their validity depends on other superior substantial and procedural rules. In other words, both form and content are constrained. At the level of rule interpretation, the standardization process consists of generating a similar understanding in different circumstances. It is also shaped by constraints exerted on the range of possible candidates for alternative meaning. Rules have an “open texture,” which, according to Herbert Hart (1961), means that one can never specify in advance all the possible instances of the application of a rule. However, rules are most

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often unobstrusive, “doing much of their work without inducing conscious interpretive doubt in their addressees” (Schauer, 1991: 207). Rule interpretation is generally a matter of routine. Wittgenstein (1963) speaks of following them “blindly.” It is even more so the case that rule formulation follows the pattern indicated above: conformity in content and procedure leads to conformity in interpretation. It is only exceptionally, in what jurisprudence calls “hard cases,” that rules require any real interpretation. In the case of standardized written rule formulation, there are core meanings from which one does not depart, despite the existence of penumbral cases (Hart, 1961). Rules have passed through a process of standardization. For the most part, rules are formulated and interpreted in a standardized manner. Whenever legislation is silent, rule formulation and interpretation are constrained in different ways, for example, through the precedents of supreme jurisdictions and formal or informal digests of quotations and templates.38 They all refer to Islamic fiqh, but in a manner that has little to do with the classical method. Does that mean that this is not Islamic law? We contend, in fact, that this question is irrelevant. Islamic law is not what scholars decide it should be but what protagonists identify as such (Dupret, 2007b). There is little doubt that most judges in Morocco, Egypt, and Indonesia hold that the use of templates and precedents does not make the law “un-Islamic” but, to the contrary, contributes to the tailoring of fiqh to legal modernity. We should reformulate the question: Rather than asking whether something is an instance of Islamic law, we should describe what actual protagonists refer to as Islamic law and how they do so. We need a detailed description of actual practices. Here, it appears that, under the cover of similar concepts and designations, the transformation that law underwent was radical. Fiqh is now understood through non-fiqhi legal cognition. Through its standardization, it has been positivized.

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9 Playing by the Rules: The Search for Legal Grounds in Homosexuality Cases – Indonesia, Lebanon, Egypt, and Senegal

The positivist dogma contends that judges must base their judgments on rules that are clear and general, and whose application is predictable. In this sense, rules have a determinate meaning and judges apply them in a mechanical way. Against this dogma, part of the realist critique argues that legal rules and principles are indeterminate, malleable, filled with implicit assumptions, and open to interpretation. Between these two poles, contemporary legal doctrine recognizes the fact that there is always a degree of indeterminacy in the interpretation and application of rules, but that this does not preclude the fact that, in most cases and especially those deemed “soft,” there is little disagreement as to applicable rules, that people routinely understand rules, and that they more or less blindly follow them. In “hard”’ cases whose legal basis is less explicit and necessitates a more stringent effort of interpretation, it is nevertheless true that judges’ discretion is much wider and permeated by factors external to legal rules per se, like moral and political principles, standards of justice, and professional practices. In other words, law, which is logically distinct from morality, proves thoroughly moral in its accomplishment. We want to use a praxeological approach to these theoretical questions. Specifically, we want to describe how judges play by, and with, legal rules. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges seek rules on which to base their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. On the other hand, however, moral considerations seem to deeply influence the same judges’ legal cognition. We aim to show how this unfolds in the concrete settings of four countries – Indonesia, Lebanon, Egypt, and Senegal – in cases relating to male homosexuality. In many respects, these four countries offer an excellent basis for the comparative inquiry into the morality of law in action. We aim to observe, in each of the four cases, how judges proceeded in situations where the rules upon which to base their rulings were absent or 219 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.010

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elusive. Despite important differences, the four cases exhibit striking similarities in the ways in which judges bypass gaps and silences in legislation by selecting alternative rules that prove efficient in sanctioning “morally associated aspects” of the defendants’ allegedly illegal behavior. By “morally associated aspects” we mean behavior that is socially associated with, although not necessarily or legally included in, the offenses constituting the basis for the indictment. Through the analysis of these cases and of how the judges reasoned legally, we shed new light on the classical jurisprudential debate about the relationship between law and morality. In particular, we show that practical legal reasoning articulates around legal rules; that judges seek and interpret legal rules according to moral norms; that the moral cognition of legal rules does not coincide with the equating of law with rules and principles; and that the moral cognition of rules does not preclude relative determinacy and predictability. The chapter is in three parts. First, it outlines the legal and judicial frameworks of the four countries being studied. Second, it concentrates on cases in these countries related to homosexuality. On the basis of these court cases, third, it analyzes the reference to rules as the core of the life of law, although in a qualified manner. Finally, it draws together the main lines of the debate regarding rules, their indeterminacy, and their interpretation, stressing the usefulness of a praxeological treatment centered on reasoning, justification, and decisionmaking practices to better understand the ways in which law lives through rules. A preliminary remark regarding comparison is also required. Besides mere opportunism – the availability of researchers working on similar issues – the comparative study of cases related to homosexuality was possible for two reasons: legal and religious. First, all four countries have legal systems inspired by the civil law model. Their formal legal similarity may therefore be assumed. Second, in all four societies Muslims are in the majority. This means that Islam cannot be taken as a discriminating factor – although the specific local forms of Islam could possibly be an issue – but rather as a reason why public morality is particularly salient. To summarize, these countries, their legal systems, and their laws relating to homosexuality are comparable. Our hypothesis is that legal-structural similarities are more important than cultural differences. This takes the form of indirect incrimination by reference to the legal standard of “nature” (in the Lebanese and Senegalese cases) or through the use of intermediate characterizations (“pornography” in Indonesia, “debauchery” and “prostitution” in Egypt). This being said, the chapter should not be taken as a full-fledged comparative study of law but rather as an attempt to demonstrate the impact of a rule-based style on judicial decisions relating to moral issues.

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9.1 Criminal Law and the Repression of Homosexuality

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9.1 CRIMINAL LAW AND THE REPRESSION OF HOMOSEXUALITY

Indonesia, Lebanon, Egypt, and Senegal have different, although comparable, historical, political, legal, and anthropological legacies. However, their legal systems belong to the civil law family. In this section, we briefly present their respective criminal systems and the legal grounds that are used to repress homosexuality. Indonesian criminal law inherited many of its features from Dutch law, which itself was inspired by the French. In the Netherlands, the French Penal Code of 1811 remained in force until 1886, with only minor modifications, and as such became the law of the Dutch East Indies (Kelk, 2001: 5). Although the Netherlands adopted a new penal code in 1886, the colonial government only promulgated a copy, with some modifications, in 1915, which became applicable in 1918 (Jonkers, 1946: 2). After independence in 1945, the colonial Penal Code remained in force (Art. 2 of the Transition Regulation of the 1945 Constitution; Presidential Regulation No. 2 of 10 October 1945). It became the Indonesian Penal Code (Kitab Undang-Undang Hukum Pidana, KUHP) under Art. 4 of Law No.1/1946. Despite several codification projects, this code still applies today (Utriza, 2013: 328–32). Indonesian criminal law, belonging to the civil law family, follows the latter’s main principles, including that of legality. Art. 1, section 1 of KUHP states: “An act cannot be repressed by criminal law unless it was previously prohibited and clearly established by law.” Indonesian doctrine defines a crime as “an act violating a norm or a regulation promulgated by the state and condemned by sanctions decided by a judge in order to protect public order” (Lamintang, 2014). Accordingly, the act must: (1) be human; (2) conform to what is described in legal provisions; (3) be the act of a responsible person; (4) be contrary to the law; and (5) be punished by a sanction established by the law (Tresna, 1959). Indonesian penal law penalizes homosexual acts only when committed by an adult on a juvenile.1 Art. 292 of KUHP provides: “The adult who commits debauchery with a minor of the same sex, whose age is known or could be reasonably presumed, shall be sentenced to imprisonment for a maximum of five years.” This is the translation of Art. 248 b of the 1886 Dutch Penal Code as amended in 1911.2 The Dutch expressions for debauchery (ontucht) and same sex (hetzelfde gestlacht) were translated into Indonesian by perbuatan cabul and sesama jenis, respectively. Indonesian commentator Soesilo (2013) explains that “debauchery” means “all acts that violate decency or morality or abusive acts, in the sphere of sexual desires, such as kissing, touching and groping the genitals, touching the breasts, masturbation, and intercourse.” In

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2017 the Constitutional Court ruled out an attempt to criminalize same-sex relationships.3 In other words, Indonesian law does not criminalize homosexuality among adults.4 As we shall see when presenting the Atlantis Gym and Sauna case, Indonesian judges do nevertheless have a circuitous means of prosecuting same-sex relationships, including Art. 36 of Law No.44/2008 against pornography, which states: “Anyone who exposes themselves or other people in a show or in public in a way that exhibits nudity, sexual exploitation, sexual intercourse or anything containing pornographic acts as defined in Art. 105 will be punished by imprisonment for a maximum of ten years and/or a maximum fine of five billion rupiahs.” The 1858 Ottoman Criminal Code was applied until 1943 in what today constitutes the Lebanese territory.6 Closely based on the 1810 Napoleonic Code, this code made it superfluous for France, the Mandatory power (1920–43), to impose new criminal legislation. However, a commission was created in 1939 in order to “replace a structure made for other times . . . by a legislative monument capable of controlling boundless criminal activity.”7 It attempted to integrate French case-law but also European (Greek, Italian, etc.) doctrinal and intellectual developments. It consecrated principles such as the fact that both crimes and punishments must be defined by the law (Art. 1), a principle already mentioned in the 1926 Constitution (Art. 8), and that of the strict interpretation of criminal law. The new code was promulgated by legislative decree No. 340/NI, on 1 March 1943, as part of a general legislative program that also produced the Obligations and Contracts Code (1934), the Civil Procedure Code (1934, replaced in 1983), and the Commercial Code (1943, amended in 2019). The Criminal Procedure Code was not adopted until 1948, five years after Lebanon’s independence, and was replaced in 2001. The new code had an important influence on Lebanon’s neighbors (in 1949, Syria adopted a criminal code largely based on that of Lebanon). It was modified several times: in 1958 after the first civil war, and in 1983, as part of a major effort to update Lebanese codes, and then several times in the 1990s and 2000s through a number of legislative amendments. However, these amendments did not affect Article 534, which criminalizes “acts against nature.” This last article comes within the general heading regulating offenses linked to public order and good morals (Book II, Heading VII, ch. II, § II). Homosexuality cases fall under the jurisdiction of a single criminal judge (alqaˆdıˆ al-munfarid al-jazaˆ’ıˆ) like most minor offenses (mukhaˆlafa) and misdemeanors (junha) as indicated in the new 2001 Criminal Procedure Code. This judge’s decisions can be challenged before the Misdemeanors Court of Appeal (mahkamat al-isti’naˆf al-jazaˆ’iyya al-naˆzira fıˆ qadaˆyaˆ al-jinah). More

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serious crimes, and linked misdemeanors, fall under the jurisdiction of the Criminal Court (Criminal Circuit of the Court of Appeal, mahkamat al-jinaˆyaˆt). The rulings of both courts can be challenged, under some conditions, before the Criminal Chamber of the Court of Cassation (mahkamat altamyıˆz). The repression of homosexuality is based on Art. 534 of the Criminal Code, which states that “any carnal conjunction running against the order of nature will be punished by prison up to one year.” While the antique, Biblical, and medieval origins of the concept of “nature” used to regulate homosexual practices are well known,8 the legislative inspiration of Art. 534 remains uncertain. It seems related to the Vichy Law No. 744 dated 6 August 19429 establishing sexual majority at the age of twenty-one for homosexual acts (as against fifteen for heterosexual acts) and therefore making “acts against nature” illegal under the age of twenty-one.10 In cases involving transsexuals, Art. 534 is often used together with Art. 523 of the same code criminalizing prostitution. Despite Lebanon’s ratification of international covenants against discrimination and Art. 2 of the Civil Procedure Code making international agreements superior to national legislation, Art. 534 is often used to repress homosexuality. Lebanese judges justify this situation by the principle of nondirect applicability of international provisions, which is consecrated by Lebanese case-law. In 2001, a new draft criminal code was proposed which included the suppression of Art. 534. It did not succeed, however, and the new draft submitted in 2017 reinstated the former provision. This legislative inertia, combined with hostility to homosexuality among political and religious leaders, convinced LGBTIQ militants to explore alternative ways of changing the legal situation. In 2009, the Helem association for the defense of LGBTIQ rights sponsored a report reviewing dozens of rulings referring to Art. 534.11 It showed that the latter, far from being marginal, was actually largely implemented by courts, fueling the hypothesis of repression that varied according to the social status of the people involved. In the same year, a ruling by the Batrun Criminal Court – whose single judge, in order not to punish homosexuality, for the first time interpreted the word “nature” of Art. 534 from the point of view of social and human sciences – stressed the potential benefits of taking the judicial path. Activists from the Legal Agenda association later developed a template document presenting arguments to be used by lawyers in order to organize the defense of people prosecuted before the courts based on Art. 534.12 This was followed by several rulings of the same type, which were, however, confined to first-instance single-judge courts (in 2014, 2015, and

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2017). It was not until 2018 that an appellate court, following an appeal lodged against the 2017 ruling, for the first time took a decision partially based on this template and avoided condemning homosexuality per se. Today’s Egyptian legal system is the outcome of a process that has lasted more than two centuries. During the nineteenth century, Ottoman governors, viceroys, and khedives strove to give the legal and judicial system a “modern” tone largely inspired by Western models (Hill, 1987; Reid, 1981; Ziadeh, 1968; Botiveau, 1989; Brown, 1997b; Dupret and Bernard-Maugiron, 2002). From the late 1870s onward, mixed courts (mahaˆkim mukhtalita) and indigenous courts (mahakim ahliyya) operated, together with religious courts (mahaˆkim shar‘iyya), over matters related to personal status. A unified system of national courts was established in 1956; since 1979 it has been crowned by the Supreme Constitutional Court (al-mahkama al-dustuˆriyya al-‘ulyaˆ). The nineteenth century was also a time of intense codification. In Egypt, decrees and laws regulated criminal matters as early as 1829. Although a new penal code was promulgated in 1852 that was largely identical to the Ottoman Penal Code of 1851 (Peters, 1995), French law massively permeated Egyptian law at the time of the promulgation of the Mixed (1876) and Indigenous (1883) Codes, of which Egypt’s first modern penal code was a part. A new Criminal Code was issued in 1937, which applied to all Egyptian residents in 1949, when Mixed Courts were abolished and the judicial system unified. That 1937 code, amended several times, remains in force today. It has been complemented by several laws combating drugs, alcoholic beverages, money laundering, and – important in our case – prostitution (law No. 10/1961). Emergency laws, (nearly) continuously in force since the 1952 revolution (and even before), outline special procedures for when state security is deemed to be endangered, which actually means any situation involving a breach of public order. The principles and general organization of Egyptian penal law are similar to other systems in the civil law family. Articles 95 and 225 of the 2014 Constitution affirm the principle of legality and of nonretroactivity of criminal rules and punishments. Three categories of crime are listed: contraventions (petty offenses), misdemeanors (punishable by short imprisonment and/or fines), and felonies (punishable by hard labor or death). The general theory elaborated by Egyptian jurists defines crime (al-jarıˆma) as “an illegitimate action produced by a criminal will for which the law stipulates a sanction or precautionary measures” (Husni, 1989: 40).13 This definition may be deconstructed as follows: (1) Crime supposes that an action (fi‘l) be committed either actively (commission) or passively (abstention); (2) This action must be illegitimate (ghayr mashruˆ‘) with regard to an explicit provision of criminal law and must not be committed under circumstances that can excuse it; (3) This action

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must originate in a “criminal will” (al-iraˆda al-jinaˆ’iyya), that is, a human will that is capable of distinction and free to choose, yet that sought to perform this action and is therefore responsible for it; if this will intended the consequences of this action, jurisprudence speaks of “criminal intent” (al-qasd al-jinaˆ’ıˆ), whereas it speaks of “unintentional fault” (al-khata’ ghayr al-‘amdıˆ) when the will did not intend the consequences of this action; (4) The law must stipulate a sanction (‘uquˆba) or precautionary measures (tadbıˆr ihtiraˆzıˆ). Three basic elements therefore make up a crime: the legal element (al-rukn al-shar‘ıˆ), the material element (al-rukn al-maˆddıˆ), and the moral element (al-rukn alma‘nawi). The material element is made up of three components: an action, the consequence of this action, and the causal relationship linking the act and its consequence. The moral element corresponds to the will that accompanies the action, in the form of either criminal intent or unintentional fault. It conditions the infliction of a penalty on the commission of an offense by a human being. The legal element refers to the illegitimate status of the action and implies that there must be a text criminalizing this action, providing for the punishment of its perpetrator. Egyptian law does not explicitly criminalize same-sex relationships.14 However, as we shall see in greater detail in Section 9.2, judges assimilate homosexuality with debauchery (fujuˆr) and use Law No.10/1961 on the repression of prostitution (da‘aˆra)15 as the legal element they need to establish the crime. Article 9 of Law 10/1961 stipulates: (a) any person who hires or offers in any possible way a place that serves debauchery or prostitution . . .; (b) any person who owns or manages a furnished flat or room or other place open to the public that facilitates the practice of debauchery or prostitution . . .; (c) any person who usually practices debauchery or prostitution is condemned to imprisonment for a period of no less than three months and no more than three years, and to a fine . . ., or to one of these two penalties. When the person is arrested in this last situation, he or she may be subjected to a medical examination and, if it appears that he or she suffers from an ordinary venereal disease, to confine him or her in a medical institution until he or she has recovered . . .

The 1965 Criminal Code in Senegal is “the daughter of French legislation, however adapted to Senegalese reality” (Diouf, 1965: 1426). Nevertheless, it refers neither to customary nor to religious rights. With the exception of family law, Senegal’s legal arsenal was wholly secularized in the name of the principle of “evolution,” which moves “in the direction of giving up customary law,” the latter being perceived as a “politically dangerous” choice for nation building and development (M’Baye, 1970: 38–9).

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The principles that guided the Preparatory Committee’s work included the “protection of the family” on the one hand and the “protection of childhood and of moral health” on the other (Diouf, 1965). This is why penalties concerning “indecent acts committed by an individual with a juvenile of the same sex” were made more serious. Art. 319–3 stipulates that “. . . any person who commits an act that is either indecent or unnatural with an individual of the same sex will be punished with imprisonment of from one to five years and a fine from 100,000 to 1,500,000 CFA Francs. If the act was committed with a juvenile under 21, the maximum penalty will always be applied.” However, it should be noted that the repression is not against “homosexuality” but against “an act against nature.” This is the legacy of colonization: contrary to British law, the French Criminal Code never explicitly condemned homosexuality, with the important exception of the abovementioned Vichy Law No.744/1942. As in France, however, homosexuality was the object of moral reprobation (Teunis, 2001). It is considered to be a “social scourge” threatening to destabilize families and society, which must be protected by the law. In that sense, penal and family provisions must be understood together: acts against nature are acts against the family, which is conceived of on a heterosexual basis. In practice, judicial indictments are not limited to acts against nature and include the supposed sexual orientation or identity of an individual. It is up to judges to decide the definition to give to the notion of “acts against nature,” notwithstanding the fact that they can use other legal provisions to condemn the accused or make the penalty more severe. On the one hand, they give a wide interpretation to the notion of flagrancy (Art. 45 of the Code of Criminal Procedure), understood by jurisprudence as “the time neighboring the crime,” in the absence of evidence of the materiality of the act, so as to encompass acts that are anterior or supposedly planned by individuals designated as homosexuals. On the other hand, the provision regarding conspiracy (Art. 238 of the Code of Criminal Procedure: “any association whatever its duration or the number of its members, or any agreement constituted with the aim of preparing or committing one or several felonies or crimes against people or property”) allows penalties to be made more severe based on Art. 319 for the reason that gatherings of homosexual people would have the objective of preparing acts against nature. To summarize, judges can, by playing on past and future times, condemn individuals in the absence of any evidence of flagrancy, which shows that homosexuality is specifically targeted and not only acts against nature.

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9.2 LOOKING FOR RELEVANT RULES: HOMOSEXUALITY AT THE BAR

We turn now to cases in which accusations of same-sex intercourse were dealt with judicially in our chosen countries. It is important to note that we are interested in the legal and judicial mode of reasoning, not in public opinion about homosexuality. As we shall see, the legal and public spheres are not impervious to each other, and commonsense categories often permeate the ways in which judges address cases related to public order and good morals. It is, however, essential to the understanding of our analysis to stress that common sense is considered here from the point of view of “legal cognition” (see Chapter 8) rather than for its own sake. We therefore refrain from making any assumptions regarding, for example, the prevailing morality or the Muslimmajority structure of society in the four countries. The Indonesian case is known as the “Atlantis Gym and Sauna” affair, after the name of the sport and meeting club in which the accused were arrested. The case can be summarized as follows. On patrol on 20 April 2017, the North Jakarta police received information from inhabitants of the neighborhood that the Atlantis Gym and Sauna intended to organize gay parties on the following 7, 14, and 21 May. Based on this information, the police sent two officers in civilian dress to investigate. According to the police record, they found gymnastic facilities on the first floor, male striptease shows on the second, where naked men were dancing while staring at, dancing or masturbating with male striptease dancers on the stage, and private cabins on the third. Drawing on these preliminary investigations, the police raided the club on 21 May and arrested 141 men, including men from Malaysia, Singapore, and the United Kingdom. After three days involving long interrogations, the arrested men were nearly all released without charge. However, ten men were kept in custody and charged for breaching the 2008 Pornography Law. These men were submitted to complete interrogation (penyidikan), from May 22 to June 10, 2017, and full investigation (penyelidikan), from June 11 to August 7, 2017. The police eventually submitted the case to the prosecutor who filed three different petitions to the North Jakarta Criminal Court on 28 July 2017.16 The accused were four employees of the Atlantis Gym and Sauna, four striptease dancers and two partygoers, the last six having been caught in flagrante delicto of “pornographic activities” during the raid. The threefold trial started on 14 August 2017. The first trial (of the four employees) was held in thirteen hearings, the second (of the four striptease dancers) in seventeen hearings, and the third (of the two partygoers) in sixteen

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hearings. Seven common hearings of witnesses were also held. The prosecutors brought eighteen witnesses before the judges, including two police officers, six employees, four striptease dancers, and seven partygoers. They presented more than 100 pieces of evidence in court, including condoms, lubricants, sex toys, CCTV recordings, striptease dancers’ tips, mattresses, advertisements for gay shows, and mobile phones containing broadcast invitations. During the hearings, the Atlantis employees explained that the Atlantis Jaya Company intended to offer a gym center, a sauna, and a whirlpool as a meeting place for gay people. Moreover, sixteen private cabins were provided for intimate relationships. Women were denied access. The club organized shows staging male striptease dances on a weekly basis. Police officers who conducted the investigation testified to the existence of pornographic and sexual activities in the club. Several witnesses said that they knew the Atlantis Gym and Sauna through the Internet and other social networks.17 They all knew that the club was restricted to gay people. Visitors said that they came to the club to attend the striptease shows and that they were motivated to find sex partners. They all knew and said that “the club provides pornographic services and programs.” Before the court, four striptease dancers said that they performed striptease dances in front of the visitors. With some of them, they would engage in further sexual activities. One of the striptease dancers said: “I know that performing a striptease in front of same sex spectators is forbidden by the law of the country.”18 The trial lasted for seven months, from the arrest to the court decision. At the last audience on 14 December 2017, the judges declared the accused guilty of breaching the law. They based their ruling on Art. 36 of Law No.44/2008. They also referred to provisions of the Criminal Code referring to assistance and participation in a crime. Namely: Art. 55(2) of KUHP, which states: “Are found guilty of a crime: those who give or promise something by abusing their power or dignity, or with violence, threats or offense, or by giving an opportunity, means, or information by intentionally encouraging others to commit an act”; Art. 56(2) of KUHP, which stipulates: “Are convicted of the crime of assistance those who deliberately provide opportunities, means or information allowing a crime to be committed”; and Art. 55(1), which states: “Are sentenced as criminal offenders those who do, induce, or participate in a crime.” In order to establish the crime and to condemn the accused, the court had to examine whether criminally sanctioned crimes had been committed by criminally responsible people who acted intentionally and deliberately. On this basis, the court found the four employees guilty of assisting, procuring, offering, and organizing pornographic services. The manager of the club was sentenced to three years in prison and the three other employees to two and half years, in addition to a one billion rupiah fine (or six months in prison). As

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for the four striptease dancers and the two partygoers, the court found them guilty of participation in the criminal act of showing their nudity and performing sexual activities in public. It sentenced them to two years in prison and a fine of one billion rupiah (or three months in prison). In Lebanon, in 2015, following a petition from the inhabitants of Bouchrieh, a Christian majority neighborhood in Beirut, and a municipal campaign against places frequented by supposedly homosexual or transsexual people, the police arrested nine people in the street and transferred them to the Prosecution who remanded them in custody and accused them of violating Art. 523 (against prostitution) and Art. 534 (against unnatural relationships) of the Criminal Code. In his decision dated January 26, 2017, the first-degree criminal judge of Jeidet el Metn, in Mount Lebanon, condemned only one of the accused for prostitution, while dismissing the argument regarding relationships “against the order of nature” on the basis of Art. 183 of the Criminal Code, which states: “There is no offense when the deed was committed in a non-abusive exercise of one’s right.” This provision is rarely used by Lebanese jurisdictions, but it is part of the aforementioned plea template on which the Jeidet el Metn judge directly drew. In his argument, the judge identifies the three conditions upon which Art. 183 can be used, thus making it possible to exclude the criminal characterization of homosexual intercourse under Art. 534: (1) There must be an acknowledged right. In this case, it is the right to have intimate relationships with the individuals of one’s choice (providing they are adults and consenting). The judge demonstrates the existence of this right through the Preamble of the Lebanese Constitution, the 1948 Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on Civil and Political Rights (ICCPR), which was ratified by Lebanon in 1972, and the principle of equality. The judge also gives his interpretation of Art. 534, arguing that “depriving homosexual people of their ‘natural’ right to have intimate relationships among them without any discrimination or the intervention of any other party, leads to impose upon them what is ‘against their nature’ in order to conform with the ‘nature’ of the majority,” something that constitutes an assault on their fundamental rights. In other words, nature changes according to the party concerned; there are many “natures” in society and it is the judge’s duty to guarantee their peaceful coexistence. (2) It is the exercise of this acknowledged right that is being prosecuted. The judge seeks to demonstrate that (homo)sexual relationships represent one means of expressing the right to intimate relationships with the individuals of one’s choice. He refers, for example, to Art. 12 of the ICCPR and its guarantee of the right to a private life.

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(3) This exercise must be nonabusive. This is the case since the deed does not concern juveniles or nonconsenting individuals. In conclusion, the Jeidet el Metn judge considers that Art. 183 makes it possible to dismiss accusations based on Art. 534. This decision fueled significant public unrest, for example, from the Committee of Muslim Ulamas, which considered that “this ruling violates what is stipulated by all divine rules as well as by logic,” pointing out that “Lebanese law forbids interpretation (ijtihaˆd) in the presence of a text.” The Committee asked the Judicial Inspection Office to investigate the judge who took this decision that “seeks to legalize a perversion condemned by both the sharıˆ ‘a and the law” and to require the Prosecution Office to lodge an appeal, before calling for general mobilization to protect society and its family and religious values “against these phenomena alien to the Lebanese social body.” On February 1, 2017, the Prosecutor’s Office lodged an appeal against the decision. In its ruling dated July 12, 2018, the Mount Lebanon Appellate Criminal Court began by recalling what constitutes, in its opinion, the two fundamental rules regarding interpretation of legal texts: interpretation must be carried out in accordance with the goal pursued by the legal text; interpretation must be carried out in a manner that conforms to “social evolution.” Referring to treatises on criminal jurisprudence, the court stresses the fact that Art. 534 of the Criminal Code is part of the section entitled “Outrages to public decency and good morals,” which means that “the legislator’s goal was not to punish sexual perversion, but outrage against good morals.” This is something that must be evaluated with respect to social evolution, so that “the implementation of the text does not become inexplicable in terms of logic or social justice.” Based on this assumption, the court considered that the assault on good morals in Lebanon today is “intercourse that deviates from the traditional conception of natural sexual relationships between a man and a woman, providing this intercourse takes place in the view of other people or in a way that allows them to hear, or in a public space, or with a juvenile who deserves protection.” Thus, Art. 534 does not repress the sexual act between people of the same sex but only its performance in public in a way that undermines good morals.19 To summarize, the appellate court, while rejecting the first-instance judge’s argument that relativized the idea of “nature” and coming back to a more classical dichotomy between natural and perverse, confirmed his decision. In his dissenting opinion, one of the three judges considered that there is no ambiguity in the expression in Art. 534: “carnal conjunctions against the order of nature,” since “from the time of the Creation, human nature” supposes the

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coupling of different sexes. The evolution of ideas within society cannot mean a change in the meaning of “nature,” since nature is independent of practice. This judge considers his position to be mere application of the law: the legislator has “the obligation to accompany and take into account those people who have perverse tendencies with respect to nature, independent of the causes of this perversion which must remain private out of respect for each person’s freedom and personal conditions.” He adds: The evolution of ideas in society does not produce a change in the stable notion of ‘nature,’ as mentioned in Art. 534, and the notion of ‘nature’ should not be manipulated in order to adapt it to new ideas and notions, since it is not acceptable to naturalize a situation on the basis that it is spreading, because being progressive and open does not allow the judge to go beyond the text until it is abrogated or amended. . . .

Finally, he insists that the law does not punish sexual tendencies per se but only the sexual act that proceeds from them and that therefore has to be established. This is, in his opinion, a strict reading of the law and not a stance against homosexuals: The insistence on the current application of the text should not be interpreted as rejection of any particular group, but as application of the law.

The Egyptian case is known as the “Queen Boat case.” It followed a police raid, in May 2001, of a nightclub on a converted barge moored to a Cairo wharf. Several people were arrested on the basis of alleged homosexual practices. In fact, this raid was only one among many concluding a police campaign in the Egyptian capital’s gay milieus, without information being available as to why this particular moment was chosen to engage in active repression of gay practices in Egypt. Among the fifty-two people who were prosecuted, two were also accused of contempt of religion: this was why the case was transferred to a state security court. There follows a summary of the grounds on which the State Security Prosecution based its accusation: Considering that the Public Prosecution filed the criminal petition against the abovementioned accused because, from 1996 until 11/5/2001, in the district of the police office of Qasr al-Nil, governorate of Cairo 1: The first and the second accused: both abused Islamic religion by propagating (tarwıˆj) and encouraging (tahbıˆdh) extremist thoughts (afkaˆr mutatarrifa) through speech, writing and other means, insofar as they kept interpreting Quranic verses in a wicked (faˆsid) way, they calumniated revealed religions and one of the

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prophets, they came to [commit] actions contrary to moral behavior (adab) while attributing these [actions] to religion, they had imposed a prayer that was contrary to established prayer, they had founded a place for prayer to perform it, they had ranked perverse (shaˆdhdha) sexual practices among its rites and the practices [bound] to these ideas and had encouraged them among the other accused and yet other people, and this in order to denigrate revealed religions, to disdain them and to provoke sedition (fitna). 2: All the accused: practiced debauchery (fujuˆr) with men in the way indicated in the investigation. It [i.e. the Prosecution] required that they be condemned to [the penalty stipulated in] Article 98/7 of the Penal Code and Articles 9/3 and 15 of LawDecree 10/1961 on the repression of prostitution (da‘aˆra).

To substantiate the accusation, the Prosecution produced evidence, which is presented by the court as follows: Regarding what the court deduced from the examination of the documents and the investigations . . . as well as from the evidence submitted and what was related during the trial, [the first accused] adopted deviant (munharifa) ideas inciting others to hold revealed religions in contempt (izdiraˆ’) and to call to abject (radhıˆla) practices and sexual acts contrary to revealed laws. . . . He undertook to propagate these ideas among his acquaintances and those who are bound to him and to call them to adopt [those ideas]; he is affected by sexual perversion (musaˆb bi’l-shudhuˆdh al-jinsıˆ ) and practices it with people who are bound to him by considering [these practices] one of their rituals; he and his companions set about organizing decadent parties (hafalaˆt maˆjina) every Thursday in their homes or on boats, among them the tourist boat “Queen Nariman” . . . which many of his sexually perverse acquaintances attended . . . He photographed these sexual encounters, then developed and printed the pictures . . . He set about diffusing pictures of these meetings as well as his confused (mushawwasha) ideas through the Internet . . . A warrant was sought to arrest these accused and the other regulars of the tourist boat “Queen Nariman.” On the basis of the Public Prosecution’s warrant . . ., the first accused was arrested in the manner established in the record . . . and the following items were seized: (1) 10 books entitled “God’s Lieutenancy on Earth”; (2) numerous photographs and negatives showing sexually perverse practices of the accused with many people; (3) numerous Muslim, Christian, and Jewish books; (4) numerous photographs of areas around Cairo, churches, mosques and tourist sites and one Jewish synagogue; (5) commentary papers from Military Unit 1057c; (6) one Star of David; (7) a number of hand-annotated documents; (8) a photograph of the President of the Republic and his wife,

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(9) photographs of the accused in Jerusalem and the Occupied Territories; (10) numerous photographs of the country’s Jewish community and Jewish tombs in Basatin; (11) the Israeli national anthem, a copy of the book . . .; (12) two maps . . .; (13) two maps of Cairo churches; (14) many maps of Cairo mosques.

In November 2001, the court issued a ruling condemning the first two accused to a punishment of five and three years in prison, respectively, twenty other accused to penalties of two years in prison, and the last accused to a penalty of one year in prison. Nineteen accused were freed for lack of evidence. The principal accused was condemned for debauchery and contempt of religion, while the second accused was condemned for contempt of religion only. All the other accused were condemned for debauchery. The characterization of debauchery, which is covered by Law No.10/1961, actually targets passive homosexual relationships – the only ones to which the forensic physician could testify, according to the judge.20 The following shows how the judge made this criminalization of homosexuality explicit: The crime designated in [this text] is only committed when a man or a woman fornicates (mubaˆsharat al-fahshaˆ’) with people without distinction, habitually. When a woman fornicates and sells her virtue to whomever asks for it without distinction, she commits prostitution (da‘aˆra) . . .; fujuˆr occurs when a man sells his virtue to other men without distinction.

Then the judge cites a 1988 ruling of the Court of Cassation that confirms this conception: “jurisprudence customarily used the word da‘aˆra to [designate] female prostitution (baghaˆ’ al-unthaˆ) and the word ‘fujuˆr’ to [designate] male prostitution (baghaˆ’ al-rajul).” In May 2002, the Military Governor, that is, the President of the Republic, refused to ratify the ruling against all those accused of debauchery and the whole case was transferred to an ordinary court. The latter, in a ruling dated March 2003, condemned the accused to even harsher penalties. However, the appeal court, in its June 2003 ruling, reduced the penalties of the accused to the time they had already spent in prison, making their release possible. The Sicap Mbao case broke out in Senegal in December 2008. Following an anonymous tip-off, nine men were arrested at the home of the first defendant, an LGBT militant and the secretary general of Aides Se´ne´gal. This arrest came shortly after the 15th International Conference on AIDS and STI in Africa (ICASA) in Dakar, during which the issue of the care of homosexuals was discussed. This conference reignited the homophobic climate that had prevailed since the “gay marriage” affair.21

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The police record makes no mention of any flagrant offense. The record concentrates on objects and documents that were seized during the search, that is, “dildos, lubricants, condoms, pornographic tapes and information for homosexuals.” Based on this, the accused were arrested for “acts against nature and harm to good morals.” During their stay in jail, while awaiting their trial, the accused acknowledged their homosexuality but denied the accusations made against them. They stated that they were gathered for a dinner-debate about the use of condoms and the scourge of AIDS. During this period of two times 48 hours, the nine men received no assistance from an attorney. Later, when freed, some of them told the media that they had been mistreated in order to extort confessions. The case was judged by the court in charge of flagrant offenses, on January 6, 2009. Claiming that it constituted an “act against nature” and a “conspiracy,” the Prosecution required that the accused be condemned to five years in prison. According to the prosecutor, the fact that this house was frequented on a regular basis by the accused, who acknowledged their homosexuality and their participation in condom distribution, constituted “constant facts” justifying their condemnation. On the other side, the defense attorneys stressed the absence of material evidence and asked for the release of their clients, adding that the law does not repress the offense of homosexuality but only that of acts against nature. According to them, the objects that were seized do not constitute evidence but only clues. Moreover, the attorneys considered that an occasional or oneoff gathering cannot serve to establish a conspiracy. They summed up by asking the judge not to yield to street pressure and to simply apply the law.22 However, the judge condemned the accused to a severe punishment exceeding the Prosecution’s demands: eight years in prison (five for acts against nature and three for conspiracy) and a 500,000 CFA francs fine. In his ruling, the judge defined an act against nature as “any act aiming at satisfaction of a sexual kind, whatever its form, outside the scope of normal sexual relationships.” He considered that this act was established since the accused had acknowledged that “they have practiced same-sex sexual intercourse with men for at least three years.” Regarding the alleged conspiracy, the judge claimed that it was motivated by the fact that, beside its aiming at establishing a care and solidarity network among gays, its goal was to prepare acts against nature, thereby establishing the existence of an “intended offense.” The severity of the condemnations contributed to the huge national and international media coverage of the case. The defense attorneys lodged an

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appeal on January 12. Their team was reinforced with attorneys from RADDHO and ONDH, two Senegalese human rights NGOs. A defense committee was also created, bringing together local (RADDHO, ONDH, Enda Sante´) and international (UN AIDS, FNUAP, FIDH, Solidarite´ Internationale LGBT) organizations. Their plea was based on the right to intimacy and a private life, an argument that avoided the debate on homosexuality, which is considered to be problematic even within human rights associations. The case took a political twist after many French leaders made statements asking for the liberation of the nine accused. Bertrand Delanoe¨ (Mayor of Paris), Roselyne Bachelot (Health Minister), and President Sarkozy expressed their concerns and invited the Senegalese authorities to review their decision. In Senegal, Islamic NGO Jamra stigmatized the inadmissible intrusion of French authorities and the President of the Bar Association criticized the pressure exerted by France on a pending case. The appeal was heard in this highly politically charged atmosphere on April 20, 2009. The very short delay (only three months, while generally there is a lapse of at least six months) reinforced the idea that foreign pressure was influencing the functioning of Senegalese justice. According to the defense attorneys, it could be explained by the fact that the accused had been denied provisional release and by the danger they incurred in prison, where they were threatened and assaulted. Procedural questions alone were addressed during the appeal hearing. The defense attorneys challenged the regularity of the police record (the search having been made outside legal hours and without a warrant) and reminded the court that the offenses of which the defendants were accused were not flagrant in the sense of Art. 45 of the Criminal Procedure Code. The judge accepted the defense argument and declared the police record and the subsequent procedure null and void, leading to the liberation of the accused. In his ruling, the judge recalled the fact that respect for procedures has the objective of “the protection of the individual and his domicile.” According to a defense attorney, this ruling represented a victory for “the right to defense, the presumption of innocence, and the respect of the legality of penalties” (interview, Dakar, 2018). However, this ruling did not clarify the distinction between “homosexuality” and “acts against nature.” Its concise wording and the lack of reaction from the Prosecutors’ Office, which did not appeal against the decision at the Court of Cassation, demonstrated the discomfort that the case had created within the Senegalese judiciary. By concentrating on procedural rules, the court avoided discussing the content and did not directly disavow the first-instance judge. It means that, actually, the court did not disavow the

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moral norms that served to justify the harsh sentences the latter judge handed down. The liberation of the accused ignited the anger of several Islamic associations, which decided to create an “Islamic front for the defense of ethical values,” whose objective is to prevent the spread of homosexuality in society and to ensure that culprits are prosecuted and punished for this crime. Ten years later, the situation has not evolved very much: homophobia (fueled by conservative groups and media) is still active and homosexuals are still subject to trial. At the judicial level, however, convictions are generally limited or even overturned at appeal, thus confirming the judicial intermingling of moral and legal repertoires.23 9.3 FACTS, EVIDENCE, RULES, PROCEDURES, AND INTERPRETATION: LEGAL REASONING IN PRACTICE

Going further in the anthropology of judicial reasoning in cases dealing with sexual morality, we now explore the specific ways in which the courts transformed social situations into legalistic rule-based decisions. We address two specific issues: courts’ search for procedural correctness and legal relevance. It leads us to examine how courts identify and present the facts of the ongoing case, applicable rules, and conclusive evidence; how legal characterization is permeated with moral standards; and how moral issues are formulated in legal technical terms. 9.3.1 Facts In most cases, the facts of the pending case are extensively based on prosecution accounts, which are themselves based on police records. In the Egyptian Queen Boat case, for instance, the facts are presented as follows: The court based its conviction on the facts of the petition and has no doubt with regard to their veracity. Regarding what the court deduced from the examination of the documents and the investigations . . . as well as from the evidence submitted and what was related during the trial, [these facts] amount to what was consigned in the record . . .. This information reached [the Prosecution] from secret and reliable sources, confirmed by its careful investigations, which suffice [to show that the first accused] adopted deviant (munharifa) ideas inciting others to hold revealed religions in contempt (izdiraˆ’) and to call to abject (radhıˆla) practices and sexual acts contrary to revealed laws. . . .

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In the same way, the Senegalese ruling reads: Considering that, following the interrogation record of flagrante delicto dated 24 December 2008, the Prosecutor of the Republic called the defendants [names] before this jurisdiction, with the charge of having committed, on 24 December 2008, or in any case in a period which does not make public prescription applicable, acts against nature (actes contre nature), and having belonged in the same circumstances of time and place, to an association created with the purpose of committing crimes.

This way of relying on facts as established by the police and the Prosecution Office testifies to the inquisitorial nature of the judicial systems under study. Facts are not disputed by the parties, as in adversarial systems in which the parties have to present their respective versions to the judge who acts as a neutral arbitrator. In inquisitorial systems, judges have an active role that consists not only in weighing the parties’ versions of facts but also in conducting the debates and orienting them in a discretionary manner. From a practical point of view, there is a tendency for judges to base their version of facts on the narratives provided by the public institutions that have conducted the investigation (and have the considerable evidential force of the state on their side). They do this in a routine way – sometimes because of the heavy case load – by merely duplicating the summaries that have been submitted for their attention. However, they always have the option of dismissing evidence produced by the police and the prosecution, especially in rulings that overrule established precedents, as is the case in Lebanon. The presentation of facts is even more summary in the Lebanese case: On 5/8/2015, the president of the municipality of Bouchrieh-El Sedd, Mr. Antoine Gebarah, referred to the Anti-trafficking and Decency Protection Bureau in the Department of general Criminal Investigations, a complaint filed by the residents of the region of Bouchrieh against “all the cafe´s and bakeries whose clients gather on sidewalks and in public places on the entrance of the town of Bouchrieh (Dawra roundabout), and which became a gathering point for groups from different nationalities including night girls (fatyaˆt al-layl, i.e. prostitutes) . . . and homosexuals (mithliyyıˆn), and involving drinking alcohol and other substances, which caused disturbance to the passers-by and the residents of the place”, and asking it to deal with this issue, And on 7/8/2015 the Appellate Public Prosecution charged the agents of the aforementioned Bureau to go to the place and arrest the girls there in addition to the transsexuals and those who contact clients in order to have sex in exchange for money, And therefore the defendants were summoned and heard . . .

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In this case, facts are reduced to a complaint, a police roundup, summarized interviews, and confessions that concern not specific sexual acts but general practices or reasons to be in such suspicious places, as may also be seen in the Egyptian and Senegalese cases. Judges do not seem interested in knowing more about the situation. This can be explained by the nature of the ruling itself, which denies the criminal nature of most of the facts alleged against the defendants, either because of their nonabusive nature (single judge) or because of their nonpublic character (appellate judge: “[I]t was not proven that the accused committed some sexual act in such a way that they could be seen or heard by others, or in a public space, or with a juvenile; nor was it proven that the accused had the will to go against public morals.”). It is interesting to observe that the same facts (public appearance in suspicious places and times) can lead to radically diverging conclusions: either they fully support the accusation (police and prosecution), based on a kind of ordinary knowledge of “normal crimes” (Sudnow, 1965) or they fall completely outside the scope of the law (single and appellate judges), which requires an overt breach of its restrictively defined provisions. 9.3.2 Evidence Short as they are, the presentations of facts must be supported by evidence. Part of the structural organization of such rulings is that they should be based on evidence. Contrary to accusatorial systems, the production of evidence in inquisitorial systems is not the object of cross-examination by the parties. Although compulsory, this production can be sometimes sketchy and circular. At the same time, evidence is often listed, without much commentary, so as to make the facts appear totally objective. The Indonesian case is paradigmatic in that respect: Considering that in this case all the evidence was confiscated from [name of the defendants]: 1 (one) unit of black digital video recorder; 6 (six) pieces of green, black and red costumes; 7 (seven) yellow belts; 2 (two) black eye patches; 1 (one) building authorization (class B) for disturbance law, 0035 / 26.1.1 / 31.72 / 1,751, 2/2016, on behalf of the company; 1 (one) Fc tourism business permit number 1811ITDUP/PTSP/KLP, GD / 2015, 1 (one) sheet of statement of domicile of the company No.14 17 / 271.0 / 31,72.06.1003 / 071 562/2016

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1 (one) set of keys belonging to the company; 1 (one) set of black chain belts and triangular iron; 1 (one) box of condoms (l pleasure plus); 45 (forty-five) lubricant silks and lubricating oil; 16 (sixteen) pieces of condoms (these were scattered on the 2nd floor). 1 (one) plastic numbered wrist bracelet; 1 (one) plastic numbered locker key chain inscribed ATLANTIS; ATLANTIS entrance ticket list board; 1 (one) work schedule of staff of PT. ATLANTIS JAYA; 1 (one) security schedule; 1 (one) metal detector (GARRETT); The brochures for events in May 2017; 1 (one) silver safe; 1 (one) bundle of vouchers, 21 (twenty-one) blue towels, 1 (one) flash disk containing CCTV Records, 1 (one) monitor screen, Vest dancer uniform, Cash of around Rp. 8,250,000, 1 (one) blue safety instructions book, 1 (one) plastic locker lock, Visitor entrance ticket, Job Form, 1 (one) unit of BlackBerry Curve type 8520 IMEI 356932047326933 white for BC event, 1 (one) BlackBerry Bold type 9700 cellphone unit 352480047764228 black for BC event, The envelope for xxxxx containing Rp. 1,100,000 (one million one hundred thousand rupiahs), The envelope for xxxxx containing Rp. 800,000 (eight hundred thousand rupiahs), The envelope for xxxxx containing Rp. 800,000 – eight hundred thousand rupiahs) and The envelope for xxxxx containing Rp. 700,000 (seven hundred thousand rupiahs). All the aforementioned evidence helps prove the case; Considering that, based on the testimonies of witnesses that are mutually compatible with each other, in relation to the statements of defendants 1, 2, 3 and 4, and also in relation to the evidence that has been confiscated in this case, the following facts can be concluded . . .

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The relationship between these many elements is not established. It appears as if the mere fact of them being listed together gives them the force of evidence. We could call it “impregnation by contiguity.” This also holds true in the Egyptian case, in which police, prosecution, witnesses’, and defendants’ voices are mixed together in order to produce a self-evident and blame-implicative master-narrative: On the basis of the Public Prosecution’s warrant . . ., the first accused was arrested in the manner established in the record . . . and the following items were seized: . . .. When the accused was confronted . . . with what the investigation and information revealed, he admitted that he had embraced certain religious thoughts . . ., had founded God’s Lieutenancy . . ., had used certain religious symbols according to his convictions . . ., had undertaken to publish these ideas of which he was convinced among the people who were bound to him, among whom the second accused . . ., so that the latter undertook to found a cell . . ., had practiced sexual perversion for a long time and during his education at the German School in Duqqi, and had kept on practicing homosexuality (liwaˆt) with numerous people; had frequented certain hotels, public places and boats that sexually perverse people frequent; had collected numerous photographs of these perverse practices with certain people, had printed and circulated them, had circulated certain messages through the Internet containing his religious thoughts, besides the exchange of sexually perverse messages.

The production of the master document gives ex post facto coherence to a series of events that share very little (if any) unity. By analyzing the contents of this master document, we can see how, on the one hand, technically speaking, two cases that were different at the beginning – contempt of religion and debauchery – were merged and integrated so as to mutually reinforce each other. This analysis also shows how, on the other hand, unity can be attributed retrospectively to facts that are bound only by coincidence in time and space. Under the effect of “impregnation by contiguity,” several people sit in the dock, and this effect is itself produced in the ruling by the presentation of one single structure of causality: (1) a person is accused, and in turn designates some person or place; (2) said person is arrested or said place is searched; (3) any person found in this place is susceptible as such to be arrested for the same reasons that justified the first search or the arrest. Since this does not hold true for all the people who were on the boat at the time of the police roundup, it is legitimate to think that the mechanism of impregnation by contiguity functions on the basis of background expectations and spontaneous categorizations made by police officers (for instance: considering his physical appearance and clothing, this person presents all the characteristics proper to those whose

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arrest was ordered; he must consequently be included within the roundup). The ruling gives retrospective coherence to all this, and its cogency is not questioned. It thereby turns impregnation by contiguity into a legitimate basis for presumption of guilt, and it turns the forensic examination conducted on that basis alone into the means of confirming or disproving the presumption. Forensic expertise plays an important role in the process of validating evidence. The authority of science – whatever that may mean – is mobilized intertextually to support testimonial evidence. This is the case in Egypt, where medical examination was performed in order to allegedly establish the performance of passive sexual acts.24 More importantly, however, flagrante delicto and confessions are used to redundantly confirm what was known in advance: for example, there was a roundup because of the indication of some crime committed on the spot and people are suspected of having committed some crime because they were arrested on this very spot. In this type of logic, culpability is not deduced from the evidence that was collected; on the contrary, evidential material is induced from a priori culprits’ preestablished culpability. This can be called a “documentary method of interpretation” (Garfinkel, 1967) in which a priori categorizations form the basis for ex post facto characterizations, which reflexively inform the conception one may have of the former. Thus, in Senegal, one can read: The accused acknowledged having had sexual relationships with people of the same sex for less than three years, in accordance with the indictment notified to them.

And further in the ruling: Considering that it is not contested that all the accused were arrested at the first accused’s domicile; that they all declared that they had come there to attend a meeting of gays organized by the latter; nor is it contested that, as it appears from the procedure, two boxes of condoms for homosexual couples, lubricants for homosexuals, pornographic DVDs, illustrated guide books for homosexuals, as well as four dildos were found at the first accused’s domicile where the meeting was supposed to take place. Considering that the first accused confessed that the unit he leads in the suburb has the main goal of coaching, helping, and ensuring the solidarity of its members, both socially and economically; The second accused agreed wholeheartedly when saying that he had freely adhered to the association whose goal was to cultivate solidarity among homosexuals . . .; The third accused declared that the first accused’s domicile was an inspiring place for them, the gays;

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The fourth accused declared that it was a question of raising awareness regarding the use of condoms and the plague of AIDS; It was the first accused who ran this network. Considering that, based upon the aforementioned, it appears that this was an association for homosexuals whose goal was to create relationships of solidarity and mutual social and economic aid, and that the aim of the meeting organized at the first accused’s domicile was to train and inform them in the use of condoms; The material which was distributed and the help that was provided aimed to prepare acts against nature punished by the law . . ..

Most evidence acquires its status only after having been selectively chosen to induce its evidential power: an association promoting education and awareness becomes an association cultivating solidarity among homosexuals; condoms and lubricants are designated as specifically “for homosexuals”; material facilitating the prevention of AIDS is transformed into material helping acts against nature; etc. In other words, evidence is used not to challenge the facts but to consolidate the prosecution’s account.25 9.3.3 Rules In this formally syllogistic game, it is not enough to have evidenced facts, judges need a rule legally characterizing them. Put simply, the alternative is between a readily available rule and a rule that must be made relevant; between the “soft cases” of rules that can be followed “blindly” (Wittgenstein, 1963: §199) and the “hard cases” of rules that must be discovered beyond prevailing uncertainty; between routine practice and high profile affairs; between socially produced “obviousness” and dogmatic principles (“the law cannot be silent” and “the law does not speak for nothing”; see Chapters 7 and 8). Actually, any case requires some reasoning and thus some quantum of interpretation, be it just to establish an equivalence between the paradigm embodied by the rule and the instance represented by the facts. As nicely shown by Lenoble and Ost (1980), neither facts nor rules are ever totally transparent. However, rules are more or less “entrenched” (Schauer, 1991) and the judges’ work varies accordingly. In Indonesia, there is no legal provision criminalizing homosexuality. The judges therefore found it impossible to condemn the people who had been arrested by the police, unless they could be found guilty under the pornography law: Considering, that the defendants have been faced with trial . . ., then based on the facts revealed, the judges chose to demonstrate the second accusation, that is, the violation of Art. 36 of UURI No. 44 of 2008 regarding pornography

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[viz. “Any person who exposes themselves or exposes other people in a show or in front of a public in a way that exposes nudity, sexual exploitation, sexual intercourse or anything that contains pornographic acts as defined in Art. 10 is punished by imprisonment for a maximum of ten years and/or a maximum fine of five billion rupiahs”] . . ., which consists of three elements, namely: First element: “any person” is substantiated as follows: What is meant by “any person” or “anyone” here is what is referred to as the subject of law, namely, a human or a corporation, who has legal rights and obligations, which is submitted for trial and can account for all his/her actions legally; . . . Second element: “exposes themselves or exposes other people in a show or in front of a public in a way that exposes nudity, sexual exploitation, sexual intercourse”; The police established that the visitors were nude, . . . the dancers came and . . . took off their clothes . . ., [and] the dancers masturbated two partygoers [in public] . . ..

In Senegal, there is a provision criminalizing sexual relationships against nature, and the judge takes it as a perspicuous rule without any further consideration: Considering that, according to the interrogation record of flagrante delicto dated 24 December 2008, the Prosecutor of the Republic summoned [names of the accused] before this court based on the accusation of having performed, in Dakar, on 24 December 2008, for a period that excludes any prescription of public action, acts against nature, and to have belonged in the same circumstances of time and place, to an association created with the purpose of committing crimes; These facts are provided for and punished by Art. 319 §3 and 238 sq. of the Criminal Code.

In Lebanon, the provision of the Criminal Code looks identical and has led judges to adopt similar positions, as illustrated in the following dissident opinion reflecting the prevailing mood: . . . We do not see in the expression “carnal conjunction against nature” any ambiguity that requires interpretation, because, in human nature since the creation, sexual intercourse occurs between two different sexes, which constitutes the natural intercourse, and any other sexual intercourse like the one happening between two people having the same biological sex becomes against nature and penalized in application of Art. 534 C.C. . . . And whereas the Lebanese law did not criminalize sexual tendencies, but sexual intercourse in itself, conviction should only occur when there is sufficient proof of the occurrence of sexual intercourse, and not just proof that a person is of homosexual tendencies . . ..

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However, interestingly, the same legalistic attitude recently led some Lebanese judges to reach an opposite conclusion: And whereas the criminal legislator emphasized the principle of protecting the individual in the exercise of his rights, making any deprivation of these rights an exception, and translated this into the general rule of Art. 183 of the Criminal Code stating that “an act undertaken in exercise of a right without abuse shall not be regarded as an offence;” And whereas it appears that this article imposes three conditions on the decriminalization of any act, the first being the existence and acknowledgment of a right, the second being that the committed act should be a legitimate means to exercise that right, and finally that this right should be exercised without abuse; And whereas it becomes necessary to determine whether the homosexual relation is the exercise of a right without abuse in the sense of Art. 183 of the Criminal Code, which implies establishing the extent to which the three conditions contained in the aforementioned article are fulfilled in the current case.

In the judges’ work, finding the relevant rule is paramount. This is illustrated in the Egyptian case in a paradoxical way, in the sense that, without any provision explicitly condemning homosexuality, judges, drawing from the Court of Cassation’s case-law, extrapolated a rule criminalizing debauchery (fujuˆr), to be understood as homosexuality (liwaˆt), from Art. 9 of Law 10/1961 on the repression of prostitution (da‘aˆra), which stipulates that: (a) any person who hires or offers in any possible way a place that serves debauchery or prostitution . . .; (b) any person who owns or manages a furnished flat or room or other place open to the public that facilitates the practice of debauchery or prostitution . . .; (c) any person who usually practices debauchery or prostitution is condemned to imprisonment for a period of no less than three months and no more than three years, and to a fine of no less than five pounds and no more than ten pounds, or to one of these two penalties. When the person is arrested in this last situation, he or she may be subjected to a medical examination and, if it appears that he or she suffers from an ordinary venereal disease, to confine him or her in a medical institution until he or she has recovered . . ..

9.3.4 Master-Narratives, Counter-Narratives and Procedural Strategies Albeit in a very formal way, judges present, and feel themselves compelled by, the necessity to base their judgments on rules that both constrain their

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discretionary power and provide the opportunity for flexible reasoning. With rules, they produce and reproduce narratives as to how to understand and apply the law. This is the ordinary working of law. It puts forward legal masternarratives that correspond to what David Sudnow (1965) calls “normal crimes,” that is, the routine understanding of legal situations and their treatment. The Egyptian case is paradigmatic in that judges, despite the absence of any directly applicable rule, selected legislation that seemed to adequately fit the “moral though not formal condemnation of homosexuality” when it becomes public: The crime designated in [this text] is only committed when a man or a woman fornicates (mubaˆsharat al-fahshaˆ’) with people without distinction, habitually. When a woman fornicates and sells her virtue to whomever asks for it without distinction, she commits prostitution (da‘aˆra) . . .; fujuˆr occurs when a man sells his virtue to other men without distinction.

Indonesian judges could not proceed in the same way, either because of the lack of any alternative legislation or because they were unwilling to give the case a maximal extension. Whatever their reasons, they restricted themselves literally to the only legislation they considered to be at their disposal, namely, the law against pornography. A widely publicized case based, as far as the police were concerned, on alleged male homosexuality was reduced to a circumscribed condemnation of people involved in public sexual indecency (and thus not homosexuality per se).26 The legislation selected by the judges could only target some of the people facing the moral condemnation of samesex relationships. This was probably done on purpose: judges wanted to produce a master-narrative relating to commercial (homo)sexual practices – which explains why they found a way to convict the owner and the manager of the Atlantis club for participation – while not further prosecuting individuals for their sexual orientation: Declaring that the defendants [names] have been proven legally and convincingly guilty of committing a criminal act. They intentionally provided opportunities, means or information to commit crimes, namely displaying themselves (dancers and visitors) in performances or publicly portraying nudity, sexual exploitation.

The Senegalese judge transforms a confession regarding sexual orientation into the evidence of the crime of committing acts against nature, although this type of crime can be established only if participants are caught red-handed:27 Considering that the accused acknowledged having had sexual relations with individuals of the same sex for less than three years, in accordance to the summons notified to them;

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9 Playing by the Rules That the crime of act against nature is therefore established in their respect.

In this case, the socially shared master-narrative is made legal, despite the uncertainty of its wording and the inadequacy of its evidence. However, in general, master-narratives do not operate freely. They are constrained in several ways, for example, evidentially and procedurally. In the Egyptian case, the judge decided to convict only those accused whose socalled “passive homosexuality” was established by (most dubious) forensic expertise. In other words, the judge felt that his discretion was limited by evidence. We have already shown the extent to which this evidentially based statement reflects a socially shared moral representation (Dupret, 2011), but our point here is to stress the extent to which judges’ subjective interpretations are felt from within as objective limitations. This holds true in the case of the Lebanese dissenting judge, who considers that there has been a “human nature since the creation” for which “natural” sexual intercourse occurs between different sexes, while sexual intercourse between people of the same sex is “against nature.” Accordingly, this judge considered that the master-narrative is clear and offers no room for interpretation. The same holds true in Senegal, where the inadequacy of the evidence was highlighted only at the appeal level,28 leading eventually to the case being overturned: Considering that . . . it is imperative that the investigating powers of agents representing public authorities be exercised in a way that conforms to the law in order to serve as evidential facts; When proceeding in the manner indicated above, investigators blatantly violated the provisions of Art. 51 of the Criminal Procedure Code; . . .. It follows that the investigation record, on which the prosecution against the accused and the subsequent procedure are based, must be annulled; As a consequence, the warrants against the accused are required to be handed in.

If adjudication is about legally characterizing facts so as to attach to them legal consequences and therefore about producing legal master-narratives reflecting prevailing interpretations of rules, there must be some room for challenging these narratives and proposing alternatives. This is known in legal practice as a reversal of precedent, even though the expression concerns the case-law of supreme jurisdictions and not the capacity of ordinary jurisdictions to overturn the traditional interpretation of specific provisions. Countering master-narratives is one of the main advocacy techniques used to promote specific causes and trigger changes in the manner in which some questions are dealt with at the social, political, or moral level. Most judicial work is achieved as part of a routine process in which precedents are more or less blindly

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followed, as conformism spares often overloaded courts time-consuming effort.29 Cause lawyering seeks to break this routine process by proposing ready-made arguments qualifying or reversing the prevailing masternarratives. Such was the case in Lebanon, where associations offered judges a reading of the Criminal Code that subverted the classical interpretation of the expression “carnal relations against nature” (see Section 9.1). It is a particular manner of functioning, as it does not oppose existing legal provisions but proposes changes of focus and evolutive interpretations. The single-judge court of Metn opted for an alternative focus in its dealings with people accused by the Prosecutor’s Office of acts against nature. It emphasized that “its first and fundamental role is to protect public freedoms and human rights in a way that preserves human integrity and dignity in society without discrimination or favouritism,” a role that is translated into the rule expressed by Art. 183 of the Criminal Code: “An act undertaken in exercise of a right without abuse shall not be regarded as an offence.” The judge undertook to explain how having homosexual relations corresponds to “the exercise of a right without abuse in the sense of Article 183 of the Criminal Code”: The right: . . . and whereas it becomes the right of homosexuals to have human and intimate relationships with whoever they want, without any discrimination in relation to their sexual tendencies or any favoritism or intervention from any party, similarly to other people, since this is the simplest of their “natural rights” inherent to them as humans . . .. And whereas, on the other hand, the deprivation of homosexuals’ “natural” right to have intimate relationships between them without discrimination or intervention from any party, results in forcing them to behave in a way “contrary to their nature” so that it corresponds to the “nature” of the majority . . .. The exercise of the right: . . . and whereas the right to physically express human relations, through sexual relations between two consenting adults, is a right inherent to any human, and homosexuals should exercise it similarly to other people without any discrimination or preference, especially those who can only live their sexual lives through their tendencies . . .. Without abuse (tajaˆwuz): . . . and whereas it is necessary to confirm, within the aforementioned motivations, that the sexual relations that deserve to be protected, whether they are heterosexual or homosexual, are the relations that occur between two consenting adults, without any aggression or exploitation or damage to the other,

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Based on all the previous elements, and in application of article 183 of the Criminal Code, the prosecution related to article 534 of the same code should be invalidated.

The appellate Court of Mount Lebanon opted for an alternative interpretation of Art. 534 of the Criminal Code: And whereas it is first necessary to emphasize two fundamental rules of the interpretation of legal texts and the determination of the scope of their application, the first rule stating that the text should be interpreted on the basis of the goal that was sought when it was written, and the second stating that the interpretation of texts should be consistent with social evolution; . . .. And whereas, secondly, the text of article 534 C.C. forms part of section 2 of chapter 2 of part 7 of the Criminal Code, whose title is “Infringement of Public Manners and Morals (al-ta‘arrud li’l-adaˆb wa’l-akhlaˆq al-‘aˆmma)”, which means that the legislator’s goal in writing this text is not to penalize sexual perversion, but infringement of public manners and morals when perpetrating it; And whereas, therefore, one should apply the text to situations that constitute an infringement of public manners and morals in the light of social evolution, and the interpretation of the text and the determination of the scope of its application should always be consistent with this evolution, otherwise the application of the text becomes unacceptable from the point of view of correct logic or social justice; And whereas what constitutes the infringement of public manners and morals in the light of social evolution is the sexual act that is beyond the traditional view of natural sexual relations between a man and a woman, when it happens in a manner that is visible or audible to others or in a public space or when it is perpetrated with a minor who should be protected; . . .. And whereas the conditions of article 534 C.C. are not fulfilled, it becomes necessary to confirm the first degree decision in relation to its result.

Besides literal interpretation of the rule on the statute book, an active search for substitute legislation in a case of legal silence, procedural maneuvers aiming to mitigate the strict implementation of the law, and evidential techniques supporting or undermining accusatory characterizations, the Lebanese case proves essential to showing the (possibly successful) capacity to seek, and find, alternative interpretations of legal provisions whose binding character does not look challengeable. The reversal of the master-narrative it offers comes not from a legal “revolution,” in the sense of a change of paradigm external to existing law (see Kuhn, 1996; Halpe´rin, 2014), but from a “transformative” process, that is, a change that is initiated from within the law currently in force. It is a means of bypassing ambient homophobia and

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asking judges to intervene in matters in which democratically elected representatives will never risk offending public opinion. 9.4 HOW TO DO THINGS WITH RULES: THE REFERENCE TO RULES IN THE LIFE OF THE LAW

What does the manner in which the four countries’ judiciaries deal with homosexual cases suggest regarding legal rules, rule-based decision-making, and their analytical treatment? Classically, analysis of the place of rules in the life of law has swung between two extremes that we could call formalism and sociologism (Colemans and Dupret, 2018). In the former, which is best embodied by nineteenth-century legal positivism, rules have a necessary content and apply in a mechanical fashion. Linked to this conception of rules, we find the “ideal” of the rule of law and its attributes of generality (the law must be set out in advance in abstract terms not aimed at any particular individual), equality (no arbitrary distinctions can be made among people), and certainty (the rules and their interpretations can be predicted) (Hayek, 1960; Tamanaha, 2004: 66; see Chapter 7). At the other end of the spectrum, there is the extreme version of rule skepticism, which was fueled by some of the “rhetorical extravagances” (Schauer, 2011: 1) of Karl Llewellyn’s Bramble Bush – speaking of rules as “pretty playthings” (Llewellyn, 1951: 5) – and Jerome Frank’s Law and the Modern Mind – who considered that rules were causally inert, having no effect on judicial decision-making (Frank, 2017). Between these extremes there is a less caricatured version of Legal Realism, whose nuanced version of rule skepticism insists that legal rules are malleable, filled with implicit assumptions; that there are gaps and contradictions in the law; and that rule interpretation is indeterminate (Tamanaha, 2004: 78), but does not, however, believe that paper rules have no causal influence on what the real rule is or that real rules have no connection whatsoever with paper rules (Schauer, 2011: 20). One could call this intermediate option “soft rule skepticism.” Soft rule skepticism nevertheless argues that rules as normative propositions, that is, situated in the words of statutes, reported cases, and legal treatises (Schauer, 2015: 18), do not correspond to real rules, that is, rules that guide and constrain rule-guided and rule-constrained judges. According to realists, the real rule applied by a judge is a rule that the judge understands as a rule and uses to guide his decisions but that does not exist on paper (Schauer, 2015: 23). This answer is problematic in at least two ways. First, it implies that what judges follow is not what they are supposed to follow but nonetheless constitutes rules. Second, it suggests that these rules are not formally identifiable but

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nonetheless guide judges’ work. However, to be a rule, a normative proposition needs some degree of formality and generality; moreover, it requires that, in similar situations, similar judges arrive at similar decisions. The realist answer is partly self-contradictory. It seems to make a confusion between real rules, as opposed to paper rules, and rule interpretation, as constrained by formal rules. The way out of this conundrum is both theoretical and praxeological. The theory of legal constraints was conceived as a correction to the excessive indeterminacy of rules in the realist theory of interpretation. Although “realist” does not refer, here, to American Realism, it shares the idea that legal formulations do not acquire their objective sense unless an authorized interpreter gives them such meaning. In other words, legal rules remain indeterminate until some interpreter arbitrarily fixes their boundaries. The theory of legal constraints suggests that, despite their wide freedom, the members of the legal system orient themselves toward a limited range of solutions because of the legal constraints resulting from the structural nature of the legal system. This is why they act in a way that is determined or, at least, determinable, notwithstanding their freedom, because of the existence of constraining causes that can be identified (Champeil-Desplats and Troper, 2005: 14). These constraints are objective in the sense that the legal system’s structure can put any “ideal legal actor” in a position that makes it compulsory for him/her to act in a determinate way. Therefore, the coherence of a legal system is explained not through axiological principles but through each member’s positioning with respect to a whole set of legal components, such as actors, formulations, decisions, and (both primary and secondary)30 rules recognized as legal (Crottet, 2012; also Dupret, 2011). The theory of legal constraints presents the major interest of showing that factors that are not fully sociological, although not strictly legal, operate in the process of rule interpretation. “Not fully sociological,” on the one hand, means that most often and for all legal purposes judges act alone; that they use the legal means at their disposal; that they want to “play at being legal” (Garfinkel, 1967; Sacks, 1985); that they do not want to let their personal, idiosyncratic views obfuscate their professional work; that “what they ate for breakfast” should not directly interfere with their decisions; that the defense of the specific social class and status to which they belong is not necessarily the main explanation of their reasoning. To put it in a nutshell, they are not totally subjected to pressures external to the legal system and its institutional and logical functioning. “Not strictly legal,” on the other hand, refers to the fact that, in the interpretive process, judges do not apply the law mechanically, independent of factors that are not only of a legal nature. On the contrary,

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their reasoning generally proves to be embedded in a network of internal, although not purely legal, constraints: the fear of being overruled at a later stage of the process; the promotion of their career; the desire not to deviate too much from common sense; the wish to be just and not only legal in their decisions, etc. (see Dupret, 2011). Besides this theoretical route out of a clumsily rule-skeptic attitude, there is an empirically based answer that we call praxeological. Although empirical descriptions cannot solve conceptual issues, they can show how flesh-andblood people deal with concepts and pragmatically ascribe an objective meaning to them. To make use of John Searle’s epistemic square, lawyers produce interpretations that, while being ontologically subjective (i.e. they emanate from subjects), are epistemologically objective (i.e. they are generally considered as impervious to subjective interpretation) (Searle, 1996). Such is often the case with legal interpretation: although it is produced by law professionals, it tends to be considered as objectively based. Our intention is not to confirm or challenge this claim but to show that interpretation takes shape in the ordinary practice of legal reasoning in a way that is modeled by the epistemically objective character of legal categories. Following Eric Livingston (1995), we call the process of legal interpretation “instructed action.” By this, we mean that norms, including legal norms, inextricably combine formulation and actualization. In other words, the (legal) norm acquires its meaning only through the combination of its enunciation with the practices that orient to it, be it to implement, violate, or dodge it. Formulation and actualization are internally related to one other – like fire and heat: they are logically inseparable, although one can distinguish them for analytical purposes. In sum, legal action corresponds to activities instructed by legal norms in a way that is never totally predictable though never fully contingent. It should be said, also, that whereas the theory of legal constraints made it possible to sociologically relax the formal understanding of the legal process, the concept of instructed action allows us to logically consolidate the sociological understanding of legal practice. Rules have an open texture (Hart, 1961), but it is more open for some than others. The more legal categories and rules claim to duplicate ordinary moral sense (as is probably the case in criminal law), the more some people can claim access to their essential meaning and literal interpretation. However, the more these morally supported rules are presented as having an obvious sense, the less entrenched they prove in their interpretation, as this sense depends on extralegal criteria, for example “common sense,” which is by definition evolutionary. It is as if the moral authority ascribed to law – which triggers what we call the privilege of literalism, that is, the possibility of economizing on legal argument on the

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grounds that the rule is literally stated (Dupret, 2020) – implies its practical malleability, which follows the “spirit of the age” (see Dupret, 2003), and thus its possible recharacterization. In fields in which the moral basis of law seems to prevail, rule-based decision-making is so important in judges’ work that, where no direct criminalization is available, they seek, and find, alternative or partial characterizations. Rules are central to the life of the law. Of course, such centrality does not work in the way that legal dogmatism claims. The consistency of rules with facts must be actively produced. However, judges would not dare act without a formal basis for their argument. For them, it is a matter of legal constraint, that is, how things must be done to be logically, substantially, and institutionally correct. It could be argued, as in caricatured Legal Realism, that this is purely paying lip-service to formal principles, but this would amount to an “ironic” attitude with respect to judges’ work, given that, most often, they take these rules as objective and their argumentation as compelling. On the contrary, the question raised by our theoretically informed praxeological research is not whether rules do play an effective role in adjudication; they do. What this research has arguably demonstrated is that they play this role in a way that is thoroughly informed and instructed by the rules’ interpreters’ technical and commonsense knowledge of normative categories.

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Conclusion: A Praxeological Approach to Positive Law

“No modern state was deemed possible without ‘law’, nor was the imposition of modern law possible without a modern state” (Buskens, 2014: 210; also Pirie, 2013). By law, one means, in Hobbes’s words (1997 [1681]), “positive law,” to the exclusion of natural, divine, and even divine positive law. This is Austin’s “law properly so called” (1954). This is what is meant in French by “Droit,” with a capital D, a notion exceeding the Roman ius in the sense that it is not limited to the actuation of subjective rights but involves a direction imposed upon the societies and the states to which this law belongs (Supiot, 2015: 72–3). It means positive law, as it came to be theorized, sociologically by Weber (1978 [1921]) and logically by Kelsen (1960). This holds true to the point that today, speaking of law means speaking of positive law, all over the globe; it means speaking of a set of norms organized in a systemic and systematic, allencompassing, hierarchical, logical, rationalizing, quasi-mathematical, objectifying, state-centered, judicially pyramidal, prospective, and selfreferenced manner. In that sense, “law” was one of the many outcomes of the positivization process (Luhmann, 1993) that affected all kinds of norms in the never-fully achieved (Latour, 1993) project and dynamics of modernity. Today, the idea of positive law is expressed in the world’s many languages using words which, via the translation process and because of their designation of one and the same specific phenomenon, can be considered to be conceptually equivalent. It shares a family resemblance with other forms of normativity, all marked by some kind of “legalism” (e.g. Dresch and Skoda, 2012). The norms of Hindu dharma, Roman ius, and Islamic sharıˆ ‘a share a family resemblance, not because they belong to the generic category of law but because they have in common the feature of being “legalist,” which relates them to a certain mode of thinking, categorizing, and reasoning. However, whereas legalism is a constituent feature of law, it can exist without law – one can speak for instance of “moral” or “religious” legalism. 253 Downloaded from https://www.cambridge.org/core. NYU School of Medicine, on 28 Jun 2021 at 03:11:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108954877.011

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Conclusion

Positive law is radically different from other normative systems (Tamanaha, 1993: 208), despite their possible legalistic character, because of its “modern” ambitions: comprehensive mapping, mastering, and reordering of the world (Pirie, 2013); articulation with another modern concept, that of the state (Troper, 1994); aiming to be a scientifically conceived technique of power (Supiot, 2015: 79); and detachment from categories such as morality and religion (Pirie, 2013). Law, understood as positive law, does not occupy any advantageous position on the qualitative scale of good and justice. Nor does it incarnate anything inherently evil, as is often the case with the expression “state law” in the mouth of anthropologists (Griffiths, 1986). The Ancient Greeks already recognized that laws could be used for good (eunomos) or bad (dysnomos) purposes (Supiot, 2015: 54). It is mistakenly romantic and essentialist to claim that all the peoples of the world have their own laws, which are the expression of their “spirit” (Savigny, 1831). It is equally mistakenly relativist to consider that each of these peoples has a particular form of expression of one and the same concept of law (Montesquieu, 1914 [1777]). Equating law with positive law is radically different from saying that positive law is the advanced form of law on the path to progress. Legal orientalism (Ruskola, 2002) does not distinguish law from nonlaw, but modern (and civilized) law from primitive (and uncivilized) law. In the latter distinction, the concept of law is universal, but more or less complete and evolved. Denying the universal character of law does not perpetuate legal orientalism, but, on the contrary, departs from it by stressing the contingent character of law and the Orientalist danger of unduly extending its concept. Using the designation “pragmatic history,” Simona Cerutti (2008) calls for the development of an approach that accounts for the practical attitude of members of society toward the many social institutions, reasons, logics, and norms to whose development they actively contribute. Contrary to the interpretive approach (Ginzburg, 1997), which uses biographical trajectories to provide for the reconstruction of complex cosmogonies, she advocates the search for nonanachronistic, indigenously relevant, and practical categories. Speaking of law, she insists that legal cultures constitute resources that are locally mobilized for all practical purposes (see Garfinkel, 1967; Travers and Manzo, 1997). More specifically, legal documents incorporate the reasons why they were written; they are oriented toward the goals of their production. In that sense, the analysis consists of reconstructing the capacity of members of society to make their own actions comprehensible, acceptable, and legitimate (see Collingwood, 2005). Cerutti’s call can be easily extended to contemporary contexts.

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Concentrating on the concept of law and its “glocal” translations, this book advocates a praxeological sociohistorical jurisprudence. It seeks to bypass at least two dichotomies opposing, on the one hand, lawyers’ law in books and anthropologists’ law in action (Llewellyn, 2011), and, on the other, positivist and realist sociolegal theories (Schauer, 2011; Tamanaha, 1997, 2001). From such a perspective, law is a concept whose historical and practical ontology can be studied through the positivization process that transformed it into a major social engineering tool. This book is a contribution to the praxeological sociohistorical study of positive law, in both its global and its local dimensions. It approaches the subject from the viewpoint of Muslim societies. In other words, it addresses the phenomenon of positive law from the perspective of societies in which Islamic norms had an all-pervading though diverse influence. It shows both how positive law “glocalized” (Robertson, 1995) in societies characterized as Muslim and how, by the same token, Islamic norms became positivized. This is what was meant by orientalist Jacques Berque when claiming, in his famous Essai sur la me´thode juridique maghre´bine (Essay on the Maghreban Legal Method): “All these efforts [viz. the Ottoman Mecelle, the Morand Code in Algeria, Chehata’s proposal for an Egyptian Code of Obligations, the Santillana Code in Tunisia, Milliot’s Compendium of Sharifian CaseLaw in Morocco] contribute to the institution, at the same time as the recognition of a positive law. And such a law, in more than one form, is actually at work today in North Africa” (Berque, 2001 [1944]: 312). In a continuum stretching from the most local to the most global, and from the legal to the technical and quasi-managerial, we can illustrate the many forms taken by this positivization process, starting with the example of the khul‘ divorce in Egypt. In 2000, the Egyptian parliament passed a law allowing wives to unilaterally divorce their husbands providing they forfeited all of the lawful financial rights and gifts they received as a result of their marriages. This legislative decision formulated a rule in Egyptian positive law which, despite claiming to be inspired by the fiqh, clearly departed from it. Indeed, it set aside the husbands’ consent and the judges’ discretionary powers, therefore introducing for the first time in Egyptian legal history the right of women to unilateral and irrevocable divorce (Sonneveld, 2012). “The establishment of khul‘ as a simply regulated procedure that allows a woman to seek divorce on the grounds that she does not wish to remain married to her husband is, therefore, nothing short of revolutionary” (El Alami, 2001: 124). The khul‘ provision, as formulated in Egyptian positive law, is paradigmatic of the transformation of the fiqh into Islamic law, that is, a norm originating from Islamic sources interpreted according to the procedures and standards of positive law.

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Lawmakers in Muslim-majority countries often included the sharıˆ‘a or the fiqh in their constitutions as sources of legislation. This had the consequence of displacing the interpretive authority from Islamic scholars (‘ulamaˆ’) to jurists trained in law faculties and practicing national positive law (Lombardi, 2006). In the short-lived Egyptian constitution of 2012, the provision making the “Islamic sharıˆ ‘a” the main source of legislation was supplemented by another provision aimed at making more explicit what was meant by such principles: “The principles of Islamic sharıˆ ‘a include its general evidence and its fundamental and doctrinal rules, as well as its sources considered by the schools of the People of Tradition and consensus” (Art. 219). The convoluted wording of this article and its insertion at the end of the constitutional text show the precipitate adoption of the new fundamental law, but they also reflect the desire to limit the power of the Supreme Constitutional Court (SCC), by defining the terms “principles of Islamic sharıˆ ‘a” in an all-embracing manner: the term “general evidence” (adilla kulliyya) refers to everything that comes from the Revelation; that of “fundamental rules” (qawaˆ‘id usuˆliyya) refers to the science of the foundations of doctrine (‘ilm usuˆl al-fiqh); that of “doctrinal rules” (qawaˆ‘id fiqhiyya) refers to Islamic doctrine, the fiqh; that of the “sources taken into consideration by the schools of Tradition and consensus” (al-masaˆdir al-mu‘tabara bi-madhaˆhib ahl al-sunna wa’l-jamaˆ‘a) refers to everything on which the Sunni doctrinal schools are based. In other words, the principles of Islamic sharıˆ ‘a correspond to all sources of Islamic normativity (Dupret, 2016b). Interestingly, the components of the sharıˆ‘a must be spelled out in the constitutional text in order to become legally meaningful and consequential within the realm of Egyptian positive law. The transformation of the sharıˆ ‘a into positive Islamic law is nowhere more obvious than in international arenas. In its ruling Molla Sali v. Greece (ECHR, 2018b), the European Court of Human Rights (ECtHR) pronounced upon a case of inheritance. Mrs. Molla Sali’s husband had bequeathed her his entire estate in his will, in accordance with the Greek Civil Code. However, as both Mr. Molla Sali and his wife belonged to the Thracian Muslim community, the Greek Court of Cassation considered that, in pursuance of international treaties concluded after the First World War, only “Islamic law” or “Sharia law,” which is said not to acknowledge the legal institution of the will, was applicable. Accordingly, the Court invalidated the will, depriving Mrs. Molla Sali of three-quarters of her inheritance. She petitioned the ECtHR on the grounds that, inter alia, this ruling constituted a breach of Article 14 of the European Convention on Human Rights (ECHR), which forbids any kind of discrimination. What matters here, beyond the ECtHR

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ruling in favor of the applicant, is that it took its decision as if “Sharia law” was a fixed body of positive legal rules, as it did in a much more aggressive way when it stated in other rulings: “[S]haria, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it” (Case of Refah Partisi (The Welfare Party) and Others v. Turkey, ECHR 2001: § 123); or: “[I]t is difficult at the same time to declare oneself respectful of democracy and human rights and to sustain a regime based on Sharia, which is clearly distinct from the values of the Convention” (Zehra Foundation and Others v. Turkey, ECHR 2018b: § 62). In fact, it is not the sharıˆ ‘a that is stable and invariable but the sharıˆ ‘a-made-intopositive-law by the Court – what it spells the “Sharia.” Positive Islamic law is often analyzed as the outcome of legal transplants (Watson, 1993) or acculturation (Rouland, 2003), that is, a game in which a hegemonic power imposes, in a field of competing normativities, its way of thinking and conceiving of norms, to wit positive law in our case. Although it would be wrong to generalize this conclusion, legal positivization has sometimes taken the form of such an asymmetrical power game, especially in international law. In its ruling The Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC, 2016), the International Criminal Court (ICC) sentenced the Malian Ahmad al Faqi al Mahdi, who pleaded guilty, to nine years’ imprisonment for the war crime of attacking cultural property and buildings dedicated to religion, as protected under Article 8(2)(e)(iv) of the Rome Statute establishing and organizing the ICC (D’hondt, 2019). In a context in which the ICC presented the Islamist groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) as having “imposed religious and political edicts on the territory of Timbuktu and its people . . . through a local government, which included an Islamic tribunal, an Islamic police force, a media commission and a morality brigade . . . called the Hesbah,” al Mahdi, who “was viewed as an expert on matters of religion” and had been “asked . . . to lead the Hesbah,” was accused of “having agreed to conduct the attack” against mausoleums, based on his “opinion . . . that all Islamic jurists agree on the prohibition of any construction over a tomb” (ICC: §§ 31–8). In this ruling, we see how the Islamic normativity, while being both reified and positivized, is at the same time made illegitimate with respect to international criminal law (Badar and Higgins, 2017). The positivization process is not limited to law. Beyond legal normativity, the dynamics of modernity created and affected other types of norm. These include technical and managerial norms (see Frydman, 2014), which deeply and globally impacted the governance of contemporary societies, Muslim

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among others. This holds true for norms inspired by Islam and Islamic doctrine which, through this positivization movement, were reconceptualized and transformed. Within a framework of normative hyperdensification of social life, the use of such technical and managerial norms, taking the form of indicators and standards, complements or conflicts with legal norms. We briefly address the examples of finance, food consumption, and bioethics. The justification for the search for a specifically Islamic form of financing is derived from Muslim jurists’ opinion that revenue is considered legitimate only if it is derived from a real sharing of the risks that have enabled the revenue to be generated. This interdiction of usury (ribaˆ), which is itself a controversial concept, is founded on Quran II, 275. The principle of sharing losses and profits has led to Islamic financial institutions offering a variety of products such as association, leasing, and limited companies. Most institutions and research into Islamic economics date from the 1960s. A Dow Jones Islamic Market Index traces fluctuations in the value of products and services according to the principles of Islamic finance. Today, numerous financial institutions all over the world offer “Islamic products” (Saeed, 2014). The effort made to standardize practices and contracts is particularly noteworthy. An institution like the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) issues documents such as “Shari’ah Standards for Islamic Financial Institutions” (Shari’ah Standards, 2015) to collectively produce a standardized body of contracts regarding financing practices, products, and services proposed by the Islamic financial industry to its clients (Kammarti, 2017). These standards serve as guides and models for the committees, often called sharıˆ‘a boards, responsible for the assessment of the Islamic conformity of products. Another normative domain that has developed during recent decades is that of halaˆl, that is, food that is permitted according to Islamic tenets, but also, gradually, all issues related to ethics. Although halaˆl has been known and practiced in Muslim societies from the beginnings of Islam, it has taken on a particular dimension in the current period of expanding commodification and commercialization. In Muslim-minority contexts, it has also become a central issue with respect to identity. The fundamental question is what constitutes correct eating and drinking. In a period of widespread industrialization, merchandizing, changing consumption patterns, and evolving dietary worldviews, within an increasingly global market, determining the criteria governing what foods are permitted is both sensitive and problematic. It has triggered “the development of new halal regulations, the rise of the halal consumer and certification industry, and the construction of a ‘halal cuisine’” (Armanios and Ergene, 2018: 17). These regulations are currently developed by

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international actors: state, international, transnational, and other organizations, which produce standards defining what constitutes halaˆl. As well as Islam, these standards can encompass many types of sensitivity (e.g. organic, vegan, ecological), transforming the question into a syncretic, multilayered issue. What must be emphasized here is that the issuance of such standards constitutes a thoroughly normative, though not necessarily legal, enterprise. It represents “bureaucratic scripts by which major halal players with hegemonic aspirations in the Islamic world and ambitious economic expectations govern religion. These standards are also indicative of what has become halal dictums under the purview of the modern state and the influence of global capitalism” (Armanios and Ergene, 2018: 91). The case of bioethics is a perfect illustration of the “scientification” of the world, including its normative though not necessarily legal systems. Bioethics is a branch of ethics that discusses moral questions concerning how to deal with living bodies and the cells, stem cells, and genetics of living creatures. The discipline of bioethics raises questions of morality concerning scientific and medical developments from how to determine birth to when to define death (e.g. procreation, euthanasia, transplantation, experimentation) (Jonsen, 1998). In the case of Muslim societies, several thinkers and scholars have based their answers to questions relating to bioethics in the Quran and hadıˆth and several fatwaˆs have also contributed to broadening the interpretation of some of these Islamic rulings. Institutions have been created to address bioethical issues, such as the Egyptian Network of Research Ethics Committees (ENREC) and the Egyptian National Committee for Bioethics (EGY/NCB). The speed of developments in the medical field has prompted a systematic collaboration between biomedical scientists and Islamic institutions based on the principle of collective ijtihaˆd. The term “co-muftıˆs” was coined to denote this systematic collaboration and to emphasize the role of biomedical scientists in a “normative” interpretation of the Qur’aˆn and the sunna from their own understanding (Ghaly, 2015). The positivization process at work since the times of Hobbes, Smith, and Bentham is closely linked to the contemporary utilitarian transformation of the conception and practice of science. The displacement in the hierarchy of values, from the contemplation of the world to utility (Supiot, 2015: 147–8), is characteristic of contemporary science. Such “scientification” has impacted the whole spectrum of normativity, including religion and law. Scientific creationism, whose ambition is to prove that science, far from contradicting and opposing religion, actually confirms it (Dupret and Gutron, 2016), is a good example of the former. The same holds true for “the use of scientific

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methods and sophisticated technologies to ensure the purity of halal substances” (Armanios and Ergene, 2018: 17, quoting Fischer, 2016). The judicial use of medical expertise can illustrate this process in the realm of law. Examination of forensic reports shows how the authority of science operates in the law, through the interweaving of scientific and legal characterization of facts and through the highlighting of both the scientific status of the reporter and the scientific nature of the evidence produced (Dupret, 2005). It tends to make law a technique of power. Because of its scientific and mechanistic nature, normative positivism impacted the rule of law, sometimes changing it into rule by law. More recently, the trend has been to substitute managerial norms of governance for legal forms of government (Frydman, 2014), thus creating new types of normative hybridity and competition. Today, when we speak of law, we refer to such “science-inspired” positive state law, including its international, regional, and transnational extensions. This system has generalized to every country in the world; comparisons are made and conceptual extensions operate from this precise point. This said, it should be noted that the concept of law has a “core of certainty” and “a penumbral zone” (Hart, 1961). The former hardly poses any conceptual problem: it is paradigmatic. However, the latter is problematic, some of its features linking it to the paradigm, while others diverge. For Hart, this was the case with international law. We could extend this question to law in revolutionary, transitional, authoritarian, or non-Western contexts. These are all situations where it is clear that positive law constitutes the core object of reference, while local circumstances, by definition contingent, make it uncertain, less autonomous, and predictable, dependent on political determinants, such as power relations, electoral maneuvers, international pressures, cultural features, historical events. We may, however, wonder whether, in varying proportions, this is not in fact the case with the law of any country. We can also wonder if the incomplete nature of certain obscure cases, compared to the paradigm, justifies not studying them as law. It may well be the case, on the contrary, that their study is more necessary than that of paradigmatic cases, insofar as it sheds new light on a question that is both conceptual – what is this object on which so many different discourses converge? – and sociopolitical – how and why is law resorted to in a revolutionary, transitional, postrevolutionary, authoritarian, or non-Western context? If we speak of an analysis that is both conceptual and empirical, it is to emphasize that we cannot speak of law in an abstraction that does not take into account the empirical object to which the concept is connected. It also means that the empirical study of what the concept of law expresses is possible only on

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condition that we know which concept, defined in a stipulated manner, is concerned. In other words, there is no valid and effective legal study that does not carry out a double conceptual and empirical analysis. This presupposes conducting what might be called a “practice-oriented sociohistorical jurisprudence” combining conceptual and empirical analyses. Conceptual analysis involves studying the taxonomic principle that lies behind any stipulative definition of law. The point here is to answer the question of what is the principle behind a particular definition of law and to analyze, on this basis, all the logical consequences that this definition may have. Empirical analysis presupposes studying the praxeological principle that lies behind all concrete legal action. It is then a question of studying what people do, say, and mean when they use a given legal vocabulary and when they refer to specific legal objects. Cassandra may weep and Antigone rebel, legal naturalists may regret heteronomy, and legal pluralists aspire to nonstate legality; however, they all miss the point and dodge the core issue: what is law, that is, positive law, in practical terms? Critique preceding description is condemned to the status of self-fulfilling prophecy. Whether we like it or not, positive rules and norms, state law, and technical standards do constitute the means through which government and governance are today achieved. Positive normativities, including law, are in much need of descriptive, nonnormative analysis. We should not assume the evil nature of positive law and fight against a straw man of our own creation. This has often been overlooked by “neonaturalists” who consider that lamenting the current state of law can substitute for the detailed description of its historical and actual functioning. It is mistaken not to take the technicalities of the law seriously as an integral part of its life. Nor is it reasonable to dismiss positivists on the grounds that they do not address the law as it should be addressed. Neither the positive nor the moral dimensions of the law can be accounted for in naturalist terms, as it is not a moral question of justice but a technical question of positive norms as practiced by both lay and professional law users. Describing does not mean renouncing the possibility of taking a critical stance; it provides the very basis for such a stance. Seen from the vantage point of Muslim societies, the positivization of norms – legal, technical, managerial, or otherwise – triggered a complete conceptual and practical upheaval. Often, the reference to Islam remained central; sometimes, it was even the object of revivalist endeavors. However, the way to address Islamic normativity has drastically changed. Whether it is called “Islamizing modernity” or “modernizing Islam,” it means that the manner of conceiving of the norms and of practicing them followed an

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alternative paradigm, fundamentally distinct from that which prevailed before. What is the case for Islamic societies holds true, mutatis mutandis, for the whole world. Normative positivization has gone global. In that sense, the perspective of Islam should not be considered as incommensurable but rather as the prism through which a global phenomenon may be grasped.

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Notes

Acknowledgments 1. The CEDEJ (Centre d’e´tude et de documentation e´conomique, juridique et sociale), Cairo, the IFPO (Institut franc¸ais du Proche-Orient), Damascus, and the CJB (Centre Jacques-Berque), Rabat, all belong to the French network of overseas research institutes overseen by the CNRS (Centre national de la recherche scientifique), the incubator of pioneer research in social sciences around the world. 2. We want to thank many people for their insightful remarks on Chapter 8. Regarding Indonesia, our special thanks go to Mark Cammack and to Judges Irman Fadli, Ahmad Cholil, Adil Fakhurroza, Muhammad Isna Wahyudi, and Abdurrahman Rahim. Regarding Egypt and Morocco, we are grateful to many judges who have proved most helpful but should remain anonymous. We also want to thank the journal’s anonymous reviewers for their helpful comments. Our special thanks to Professor David Powers who read, corrected, and commented on the successive drafts. 3. We would like to express our deepest gratitude to Dr. Mina Khalil for having shared with us an 1843 letter from the chief doctor of Cairo Civil Hospital, Dr. Saillomy, which, along with others, will constitute the basis of a more detailed and historically extensive joint exploration of forensic psychiatry in early modern Egypt. We would also like to thank Dr. Ayang Utriza Yakin for his assistance in the search for, and selection of, relevant rulings in the al-Muhaˆmaˆ journal. 4. Chapter 6 is the outcome of a project I conducted jointly with Le´on Buskens on the transformation of Islamic and customary normativities into positive law (Buskens and Dupret, 2015). Section 6.3 is drawn mostly, with his permission, from Busken’s work on the discovery and rediscovery of customary law in Morocco (Buskens, in press). Section 6.4 was written with the assistance of Justice Adil Bouhya.

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Notes to pages xv–59

5. Chapter 4 was written with the support of Elie Perdrix, as part of ashortterm assistantship at the Institute of Political Studies in Bordeaux. Some parts of it are also the outcome of in-depth discussions with my lifelong colleague and friend Jean-Noe¨l Ferrie´.

Introduction: Law Properly So Called, from an Islamic Vantage Point 1. Troper (1994: 195) adds: “One pays a huge price for this definition, as one can no longer speak of feudal law nor even of Roman law, at least during the Republican era, but it offers two advantages: – It provides an understanding of the law and thus the state as a specific form of political power . . .; – (I)t can contribute to the explanation of theories regarding the state, (that is, the) influence of the historical emergence of this specific system exerted on the formation of concepts and theories.”

1 Law as a Concept 1. On the question of knowing whether the Common Law is law, see Schauer, 1989. 2. Although virtuous in its principle, the will to escape “epistemological racism” (Baxi, 2003: 53, quoted by Husa, 2014: 80) seems to be out of context in the treatment of concepts whose ontology is situated both historically and culturally. 3. For the complete review of this volume, see Dupret, 2016a. 4. This is exactly what Fernanda Pirie does when speaking of moral or religious legalism (Pirie, 2020). 5. For a complete review, see Dupret, 2016a. 6. This recalls Carlo Ginzburg’s comments on the dissemination of popular culture in sixteenth century Friuli (Ginzburg, 1980). 7. For a complete review, see Dupret, 2016.

2 The Great Divide in Legal Discourse: Toward a Global Historical Ontology of the Concept of Positive Law 1. See Callon (2017) for whom the theories of the market are less describing it than constituting it. 2. For a nuanced conception of social evolutionism, see Testart (2012). 3. This history of triumphant positive law would not be complete without recalling the resistance that it had to face at the margins of the legal revolution. In his book Yawmiyyaˆt Naˆ’ib fıˆ’l-Aryaˆf (literally: Diary of a Public Prosecutor in the Countryside, 1937), eloquently translated into

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Notes to pages 62–94

4. 5. 6. 7.

8. 9.

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English with the title Maze of Justice (1989), Tawfik al-Hakim describes the idiosyncrasies of the new law and seems to indicate nostalgia for the ancient legal regime, the majority of the decisions taken by the two young prosecutors relating to cases where the new law differentiates itself from the old. See also Leca (2007) on the making of French law. See Schro¨der (2012). The expression was first coined by Muhammad Qadri Pasha (see Cuno, 2015). Contrary to what is stated by Ahmed Fekry Ibrahim (2015), who speaks of a “codifying ethos” in Islamic doctrine after the thirteenth century, to describe the tendency to fix rules in a more unequivocal and predictable manner. In Morocco, the word used to mean “code” is “mudawwana,” which is less ambiguous. This remark is valid in both directions: the concepts of the ancient legal regime no doubt acquired a different meaning under the effect of positivist legal cognition, but they have also managed to conserve a significant proportion of their semantic force within bounds that, although outside the contemporary legal system sensu stricto, nevertheless conserve a significant political capital.

3 Legal Praxeology: Into Perspective and into Practice 1. This excursion into jurisprudence and legal theory allows us to establish a number of elements that are analytically relevant to our praxeological perspective: see Chapter 9. 2. For a more nuanced presentation of the Realist perspective, see Llewellyn, 2011, and Schauer’s “Introduction” to it. 3. Note here a small but significant detail relating to praxeological studies: when first transcribing this hearing, Dr Yakin wrote qabul and not Kabul. The former transliteration of this originally Arabic term corresponds to the usages of judges mastering legal Arabic, which Dr Yakin observed in the documents of many other trials. The latter transliteration corresponds to the Indonesian writing of this word and thus to what the witness probably had in mind when speaking. When writing qabul, judges render this vernacular term “scientific” or “scholarly.” When doing the same in the transcription of a tape-recording, Dr Yakin proceeded like a judge, revealing by the same token a cognitive mechanism operating in his work. 4. This is something that is largely ignored by research, which uses judicial documents as a source of social history or judicial sociology, rather than the practical production of an institution accomplishing its functions. It results in a distorted conception of documents, of what can be read into them, and of the work they accomplish, despite the fact that understanding their uses and utility is obviously very important.

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Notes to pages 101–117

4 Politics Made into Law: Determinism and Contingency in Moroccan Constitutionalism 1. We do not take into consideration what is sometimes called “Islamic constitution,” like the early covenants agreed upon, according to the Islamic tradition, by the Prophet, his Companions, and various polities in the Prophetic context. To our mind, this is not only beyond the scope of our argument, but it also belongs to what could be called “glorified mischaracterization” (Tamanaha, 2004: 25). 2. Including the admission of more Moroccans into the administration, the composition of the government, a better correspondence between civil servants and their functions, and the creation of consultative economic chambers and a National Assembly. 3. Including provisions regarding the dual organization of justice, with Sharıˆ‘a Courts (mahaˆkim shar‘iyya) competent in family and real-estate matters, and Crown Courts (mahaˆkim makhzaniyya) competent in all remaining matters, with three levels of jurisdiction (first instance, appellate, supreme). 4. Including freedom of thought and ideas, and penalties that fit crimes. 5. Including the definition of family property (al-milk al-‘aˆ’ilıˆ al-thaˆbit), dead lands (al-araˆdıˆ al-mawaˆt), and Crown lands (al-amlaˆk al-makhziniyya), and the creation of a Land Registry (al-muhaˆfaza al-‘aqqaˆriyya). 6. Including for a ban on Jewish or Muslim Moroccan subjects (al-ra‘aˆyaˆ almaghaˆriba israˆ’ıˆliyyuˆn wa muslimuˆn) renouncing their citizenship and becoming French within Morocco. 7. According to Adam Przeworski (1988: 62), constitutionalism becomes democratic when the outcomes of a constitutionally institutionalized process cannot be overturned by any power apparatus. 8. For example: the King as the embodiment of national sovereignty; the creation of a constitutional monarchy guaranteeing the teachings of Islam, the development of the country, and the “progressive participation of the people” (ishraˆk al-sha‘b tadrıˆjiyyan). 9. This provision directly targets the Communist Party, which was effectively banned on the grounds of its atheism. 10. As quoted in AMDC, 2017. 11. A priori review means review between the drafting of the legislation and its promulgation. A posteriori review means constitutional review after promulgation of the legislation. Texts referred to by the Preamble of that constitution: the Declaration of the Rights of Man and of the Citizen and the Preamble of the Constitution of the Fourth Republic. Both texts establish a list of constitutional rights. 12. The creation of the Constitutional Council took place in a political context in which human rights and their protection were a major concern. Its

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Notes to pages 118–133

13. 14. 15. 16. 17. 18. 19. 20.

21. 22. 23.

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impact was limited, however, since the King was responsible for the designation of five out of nine members, who necessarily abided by his understanding of the Constitution and of the institutions’ political role, what is often called the “unwritten Constitution,” which makes the King the source of all power (Bendourou 1997, 236–7). The Consultative Council for Human Rights had been created in 1990, together with the National Council for Youth and Future. For more about the 2011 Constitution, see Binyahya, 2011. For more about the aftermath of the 2011 Constitution, see Binduru, alMusaddiq, and Madani, 2014. For more about the issue of an “Islamic public law,” see Mouaqit, 2011. It was also translated into an abundant literature about Islamic constitutionalism. See, e.g. Jarisha, 1985, and Murad, 1991. Although countries such as Indonesia have not done so, while others, such as Turkey, emphasize the secular character of the state. Similar formulations are repeated in different places, e.g. the Preamble and Art. 175. From this viewpoint, the fundamental norm is the only one that can escape Hume’s law, according to which a normative proposition cannot be deduced from a descriptive proposition (or, in Kelsen’s terms, a legal norm cannot proceed from an empirical fact). Searle (1996) speaks of epistemic objectivity. One could say “the modern system of law,” but, from our perspective, this would be redundant. One could say “as it is understood from a modern, positivist viewpoint,” but, from our perspective, this would again be redundant.

5 The Legal Reification of the Mind: The Development of Forensic Psychiatry in Egyptian Law and Justice 1. We would like to express our deepest gratitude to Dr. Mina Khalil for having shared with us this document. 2. Regarding some of the terms used in this report: • Monomania: Psychiatric category introduced in the early nineteenth century by the French alienist Esquirol as a subcategory of melancholia. Monomania corresponds to lesions of the intelligence, affections, or will. “Hetero-aggressive forms (arson or homicide) were an opportunity for the alienists to enter the field of justice, by being brought in to assess, by virtue of their expertise, the degree of responsibility of the accused” (Pewzner, 2002: 221–2). • Delirium tremens: The modern Latin delirium tremens, trembling delirium, was introduced as a psychiatric category in 1813 by the

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Notes to pages 133–148

British alienist Thomas Sutton to designate an affection linked to alcoholism and especially to a sudden alcoholic withdrawal. • State of permanent alienation: “Alienation” is a generic term used to designate insanity, at the time of the birth of psychiatry (Pinel, Esquirol, Griesinger), and referring to the one single mental disease by which a person is alien to others and to him or herself. 3. In this case, it was decided by the Consular Court, based on Art. 64 of the law of May 28, 1836, regarding the prosecution of crimes and misdemeanors in the cities in which the Sultan had conceded capitulation privileges to France (Echelles du Levant et de Barbarie), that Mr. Zambelli be transferred to Alexandria and then to France, to be handed over to the King’s General Prosecutor and judged. 4. One should stress the use of the term “nafsaˆnıˆ’” in its modern sense of “psychological.” Although this term has a long history in Islam and Islamic mysticism, it referred to the soul rather than to mental faculties. 5. Goldberg (1998) rightly stresses that the story of Mixed Courts has rarely been told “through the eyes of their legal cases,” with the exception of Mark Hoyle’s 1991 book. He also emphasizes how much the Mixed Courts, although initially related to the capitulations system, were actually designed “to restrict consular jurisdiction.” 6. “Maurice Jean Joseph Bellet, former Advocate General at the Court of Appeal of Toulouse, appointed on June 2, 1877, in [the Court of First Instance of] Alexandria, promoted to Deputy Counselor at the Mixed Court of Appeal on June 15, 1879 . . . Titular Counselor on May 19, 1884, resigned on November 1, 1902. Order of Medjidieh 1st class” (Livre d’Or, 1926). 7. “Antoine de Korizmics, Austrian, former Counselor at the Hungarian Justice Ministry, appointed [to the Mixed Courts Public Prosecution Office] on June 24, 1875, appointed Judge at the Mixed Court in Cairo on November 25, 1876 . . . appointed [to the Mixed Court of Appeal] on May 1, 1886, resigned on October 15, 1912” (Livre d’Or, 1926). 8. Mixed Civil Code, Mixed Commercial Code, Mixed Maritime Commercial Code, Mixed Code of Civil Procedure, Mixed Penal Code, Mixed Criminal Instruction Code. See “Codes of the Egyptian Mixed Tribunals,” 1896. 9. See the list of Mixed Courts personnel according to their citizenship in Livre d’Or, 1926. 10. The process of translating the Mixed Codes and the Egyptians who staffed the Mixed Courts should be studied in order to better understand how the language of contemporary legal Arabic was fixed.

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Notes to pages 148–170

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11. For samples of such rulings, see Khaled Fahmy’s blog: https://khaled fahmy.org/en/category/facebook-posts/. 12. Although the term “mania” has a very ancient history, it had changed, by the 1880s, from being a general term defining overactivity to a moodrelated diagnosis, as in today’s manic-depressive disorder. 13. Which itself underwent an important reorganization in 1897, 1909, and 1910, including a three-stage judicial structure: summary courts (mahaˆkim juz’iyya), first instance courts (mahaˆkim ibtidaˆ’iyya), and the Supreme Court (mahkama ‘ulyaˆ) (Shaham, 1997: 12). Note that the use of the term “council” (majlis, pl. majaˆlis) itself reveals important changes: initially designating judicial institutions that were part of the siyaˆsa system, it was replaced in the 1870s by the term “court” (mahkama, pl. mahaˆkim), which was until then used only for judicial institutions belonging to the sharıˆ‘a system. 14. Etymologically speaking, paranoia means something that is against the mind. Appropriated in the nineteenth century by the nascent science of psychiatry (Krafft-Ebing, Mendel, Seglas, Meyer), it indicates a mental disorder manifested by relationship difficulties, behavioral disorders and a feeling of persecution that can go as far as irrationality and delirium. 15. The term “psychosis,” from which the predicate “psychotic” is derived, was used for the first time by an Austrian physician, Baron Ernst von Feuchtersleben, in 1845, as an alternative to the terms vesania, madness, and mania. It describes the severe forms of psychiatric disorder. Sigmund Freud himself used the division between psychosis and neurosis.

6 From ‘Urf to Qaˆnuˆn ‘Urfıˆ: The Legal Positivization of Customs 1. Larenz speaks of a sense of fulfilling a norm (quoted in Watson, 1985: 45). 2. Article 36 of the Mecelle speaks of ‘aˆda: “Usual practice is an arbitrator.” Article 45 speaks of ‘urf: “A matter stipulated by custom is like a matter stipulated by a text.” 3. Buskens (2017) offers a study of the materiality of colonial law with further references. Hoffman (2010) presents a research project on colonial legal practice in Southern Morocco based on the reading of more than twenty thousand customary court records from the period 1936–56. 4. Inna al-‘urf ka-qaˆ‘ida qaˆnuˆniyya yaftarid fıˆ’l-qaˆdıˆ al-‘ilm wa min waˆjibihi an yutabbiqahu tilqaˆ’ nafsihi wa laˆ yaqa‘ ‘ibb ithbaˆtihi ‘alaˆ atraˆf al-da‘waˆ. 5. According to Berque, this right to acquests is balanced by the modesty of the nuptial gift (mahr, sadaˆq).

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Notes to pages 177–190

7 General and Particular: The Legal Rule and an Islamic Swimsuit in a Secular Context 1. “Re`gle de conduite dans les rapports sociaux, ge´ne´rale, abstraite et obligatoire, dont la sanction est assure´e par la puissance publique.” 2. A word constructed from the terms burqa and bikini and corresponding to a kind of swimsuit, similar to a diving suit, covering the whole body with the exception of the feet, the hands, and the face, generally worn in order to conform with a certain interpretation of Islamic precepts. 3. In France, the Council of State is a body of the French national government that acts both as legal advisor to the executive branch and as the supreme court for administrative justice. 4. “14. La loi est une re`gle de conduite prescrite a` tous les citoyens. Ce n’est donc point un ordre transitoire relatif a` un individu ou a` un objet particulier; c’est une re`gle permanente, uniforme, prescrite sur un objet d’utilite´ ge´ne´rale et d’inte´reˆt commun. La loi conside`re les sujets en masse, et les actions en ellesmeˆmes et par abstraction. Elle ne peut statuer sur un individu, ni sur une action ou sur un cas particulier; elle doit eˆtre e´gale pour tous, soit qu’elle prote`ge, soit qu’elle punisse: tous les citoyens sont e´gaux a` ses yeux.” 5. “General” or “particular” status may be a question of sequence, as shown by the example of legal precedent. Precedents are interesting with respect to our discussion inasmuch as they depend on a factual and therefore particular instance (the first case) of a legal and thus general rule (this same case having become limiting with respect to the specific case, in itself particular) (Schauer, 1991: 185): “the description of the precedent facts is in reality a generalization, and as a result this articulated description constitutes the factual predicate for a rule.” 6. For example, the “trouble-case method” of American Realists (Llewellyn and Hoebel, 1941). 7. For a detailed presentation of the various “affairs of the veil,” see de Galembert, 2008, and Hennette-Vauchez and Valentin, 2014. 8. “The objective of New Laı¨cite´, which has found its expression in numerous public speeches and statements emanating, over the last decade, from senior politicians and legal experts, is to give the principle of laı¨cite´ the function and legal effect of limiting religious freedom. In this sense, ‘New Laı¨cite´’ . . . aspires to restrict religious conviction to the private sphere alone, and consequently to severely limit its public expression” (HennetteVauchez and Valentin, 2014: 26). 9. Somewhat ironically, one can see that the judgment regarding the incongruity of the burkini in a way matches the judgment regarding the normality of going topless, as described by Jean-Claude Kaufmann (1995), who observed the falling off in the rules of decency and in negative opinions, and thus a shift in the “cursor of normality” (Dupret and Que´re´, 2014).

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Notes to pages 196–203

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8 Filling Gaps in Legislation: The Use of Fiqh in Contemporary Courts in Morocco, Egypt, and Indonesia 1. We use the expression “reference to Islam” to signify all the situations in which texts point to words and concepts related to Islam as a religion, an identity, a normative system, or an affiliation. 2. Shra‘ is a Moroccan colloquial word referring to shar‘. 3. In the appointment Dahir of Ahmad b. Talib b. Suda as judge of Tangier in 1293 AH/ CE by Sultan al-Hasan I, we read: “We grant him permission thereby to view the acts and adjudicate between parties and issuing judgments according to the Maliki doctrine” (Ghmija, 2000: 13). 4. By 1912, Morocco was divided into three zones, the French protectorate in the middle part, the Spanish protectorate in the north and the very south, and Tangier in the northwest, which was an international zone. 5. Indonesian civil law is based on Burgerlijk Wetboek voor Indonesie (1847), commercial law is based on Wetboek van Koophandel 1847, and criminal law is based on the Wetboek van Strafrecht voor inlander en daarmede gelijkgestleden 1872. 6. Pancasila are: (1) “Belief in One Supreme God (with the obligation to carry out/implement sharıˆ‘a for adherents of Islam)”; (2) “Just Humanitarianism”; (3) “Unity of Indonesia”; (4) “Democracy guided by Consultation”; and (5) Social Justice. 7. Aceh issued several “qanuns” (legislations), e.g.: a prohibition on the sale of liquor (khamar) regulated by Qanun No. 12/2003; a prohibition on gambling (maysir) by Qanun No. 13/2003; a prohibition on gender promiscuity (khalwa) by Qanun No. 14/2003; and the implementation of jinaˆya (Islamic criminal penalties) by Qanun No. 6/2014. 8. We do not have any statistics on the training of judges, but we can say that the large majority of judges today hold a Bachelor’s degree in law. 9. Created by Law No.1.02.240 dated 3/10/2002. 10. “Process in which the doctrines of the four Sunnıˆ schools were drawn upon to select the least stringent juristic opinion (known in the primary sources as tatabbu‘ al-rukhas or takhayyur), or where two juristic opinions were combined in the same legal transaction (known in the primary sources as talfıˆq)” (Ibrahim, 2015: 2–3). 11. With regard to the substantive law applied in Egypt, the legislative rules currently governing marriage and divorce are found in Law No. 25 from 1920, Law No. 25 from 1929, Law No. 100 from 1985, and Law No. 1 from 2000. 12. Article 3 was preceded by Article 280 of Law No. 78 from 1931 (Shaham, 1997: 12–13). Article 1 of the Civil Code of 1947 also requires judges to fill gaps and lacunae in the civil code by citing the principles of Hanafi fiqh. 13. See, e.g. Yakin, 2015, 2016.

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Notes to pages 203–208

14. In Indonesia, the Decree of the Bureau of Religious Courts No. 8/1/735 of February 18, 1958, stipulates: “To obtain the unity of substantive law in examining and adjudicating cases, the judges of religious courts or Mahkamah Syariiyyah are recommended to refer to 13 books of fiqh.” These thirteen books are al-Faraˆ’id (Shamsuri); al-Fiqh ‘alaˆ al-Madhaˆhib al-Arba‘ah (‘Abd al-Rahman al-Jaziri, d. 1941); Bughyat al-Mustarshidıˆn (Husayn al-Ba‘lawi); Fath al-Mu‘ıˆn (Zayn al-Din Malibari, d. ca. 1579); Fath al-Wahhaˆb (Zakariyya al-Ansari, d. 1520); Haˆshiyah Kifaˆyat alAkhyaˆr (Ibrahim b. Muhammad al-Bajuri, d. 1860); Mughnıˆ al-Muhtaˆj (Muhammad Sharbini, d. 1569); Qawaˆnıˆn al-Shar‘iyya (Sayyid ‘Abdullah b. Sadaqah San‘an); Qawaˆnıˆn al-Shar‘iyya li Ahl al-Majaˆlis alHukuˆmiyyaˆt wa’l-Iftaˆ’iyyaˆt (Sayyid ‘Uthman b. Yahya, d. 1913); Sharh Kanz al-Raˆghibıˆn (al-Qalyubi, d. 1659); Sharqaˆwıˆ ‘alaˆ al-Tahrıˆr (‘Ali b. Hijazi b. Ibrahim al-Sharqawi d. 1737); Targhıˆb al-Mushtaˆq (Shihab alDin Ahmad b. Hajar al-Haythami, d. 1665); Tuhfat al-Muhtaˆj (Shihab alDin Ahmad b. Hajar al-Haythami, d. 1665).” 15. This Kompilasi Hukum Islam (KHI) regulates the personal status of Muslims. On the basis of thirty-eight books of fiqh, the majority of which are Shafi‘i texts, the KHI marks the apex of the codification process of fiqh in Indonesia and is in force in the religious courts. 16. This verse is extracted from the poem known as Tuhfat Ibn ‘Aˆsim. In his explanation of this verse, al-Tasuli cited Ibn Lubb’s fatwaˆ, according to which a marriage is not void in the absence of witness testimony, on the condition that it was celebrated and publicized, and that the spouses and the legal guardian were known. 17. The last paragraph of Article 5 of the PSC states that “in an exceptional way, judge[s] may adjudicate all petitions seeking marriage recognition and may admit for these purposes all means of legal evidence.” In its ruling dated 21/10/1986, the Cassation Court defined the “state of exception” as any kind of difficulty that prevents the spouses from registering the marriage contract (Ghmija, 2000: 73). 18. Majalla qadaˆ’ al-majlis al-a‘laˆ, Vol. 70, 2009, p. 514. 19. In Case No. 416 dated 11/5/1982, the Court of Cassation stated that lafıˆf is a common judicial practice. Lafıˆf is thus accepted as legitimate evidence. See Ghmija, 2000: 98. 20. On 2/2/2005, a circular from the Minister of Justice urged judges to adjudicate marriage recognition petitions with flexibility in order to preserve progeny rights and also for the sake of family stability. 21. The same template was adopted in the following cases: Case No. 1300, February 26, 2012, ‘Ayn Shams family court; Case No. 72, March 31, 2013, Zaytun family court; Case No. 260, January 27, 2011, Zaytun family court; Case No. 361, March 26, 2012, Zaytun family court; Case No. 1341, April 30, 2011, Zaytun family court; Case No. 1133, June 28, 2008, Heliopolis family court;

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Notes to pages 209–213

22.

23. 24.

25.

26. 27.

28. 29. 30. 31. 32.

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Case No. 1020, January 28, 2010, Heliopolis family court, and Case No. 1014, January 28, 2010; Case No. 222, May 20, 2010, Heliopolis family court; Case No. 1671, March 27, 2011, ‘Ayn Shams family court; Case No. 1472, February 27, 2011, ‘Ayn Shams family court; Case No. 1280, February 25, 2013, ‘Ayn Shams family court; Case No. 290, April 17, 2011, ‘Ayn Shams family court. Case No. 72, March 31, 2013, Zaytun family court. The same template was adopted in the following cases: Case No. 260, January 27, 2011, Zaytun family court; Case No. 361, March 26, 2012, Zaytun family court; Case No. 1341, April 30, 2011, Zaytun family court; Case No. 1133, June 28, 2008, Heliopolis family court; Case No. 1020, January 28, 2010, Heliopolis family court and Case No. 1014, January 28, 2010; Case No. 222, May 20, 2010, Heliopolis family court; Case No. 1671, March 27, 2011, ‘Ayn Shams family court; Case No. 1472, February 27, 2011, ‘Ayn Shams family court; Case No. 1280, February 25, 2013, ‘Ayn Shams family court; Case No. 290, April 17, 2011, ‘Ayn Shams family court. Case No. 125, November 16, 2008, ‘Ayn Shams family court. Sistem Informasi Administrasi Perkara Pengadilan Agama (SIAPDA, Administration and Information Systems of Religious Court Cases). SIAPDA, which is desktop-based, is gradually being replaced by the SIPP (Sistem Informasi Penelusuran Perkara, Information System for Case Searching), which is web-based. The UCSFT is a compilation of citations from various Shafi‘i fiqh texts on family issues. It has between fifty-five and seventy-five pages in five different versions (received differently by many judges). The use of the decision-making “template” program in religious courts has been compulsory since 2007. (1) Articles 1(1) and 3(5) of Law No. 22/1946; (2) Article 1 of Law No. 32/ 1954; (3) Article 49(2) (and its explanation No. 22) of Religious Judicature Act No. 7/1989; (4) Article 2(2) of Marriage Act No. 1/1974; (5) Article 2 (1–3), Article 10(2), and Article 6(1–2) of Government Regulation No. 9/ 1975; (6) Article 7 of the KHI; (7) Articles 9(1–3), 34, 35, and 90 of Civil Administration Law No. 23/2006; (8) Articles 8(2) and 58 of Population and Civil Registration Law No. 24/2013; (9) Minister of Religious Affairs Regulation No. 11/2017; and (10) Decree of the Chief-Judge of the Supreme Court No. KMA/032/SK/2006. Case No. 57/Pdt.P/2016/PA.Mj, 10 p., p. 8. Case No. 110/Pdt.P/2014/PA.Pdlg, 13 p., p. 9. Case No. 110/Pdt.P/2014/PA.Pdlg, 13 p., p. 9. Case No. 110/Pdt.P/2014/PA.Pdlg, 13 p., p. 11. This reference is actually to Sayyid Bakri al-Dimyati, n.d., vol. 4, pp. 253–4, instead of p. 254. The judges also referred to the same fiqh book, vol. II, at p. 308, but we could not find the exact quotation.

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Notes to pages 213–223

33. Case No. 110/Pdt.P/2014/PA.Pdlg, 13 p., p. 9. 34. The reference is not written in its entirety, which makes it difficult to verify whether the citation is correct or not. However, we found it to be correct: Sayyid Bakri al-Dimyati, n.d., vol. 4, pp. 253–4. 35. In the ruling, the reference is incomplete. This is a correct citation of Shihab al-Din Ahmad b. Hajar al-Haythami, n.d., vol. 7, p. 241. 36. Fiqh and Indonesian procedural rules are largely identical. 37. See Ghmija, 2000. 38. On the use of sample documents for a variety of practices in the Ottoman Empire, see Rubin, 2011: 89.

9 Playing by the Rules: The Search for Legal Grounds in Homosexuality Cases – Indonesia, Lebanon, Egypt, and Senegal 1. See, e.g, case No. 522/Pid.B/2012/PN.SBG from North Sumatra, in 2012, where a fifty-year-old man had homosexual intercourse with a minor and was sentenced to two years in prison. Indonesian law defines any person under the age of eighteen as a juvenile. According to the Child Protection Act of 2002, as amended in 2014, anyone who commits or incites someone to commit child molestation and/or child abuse will be sentenced to five to fifteen years of imprisonment and fined up to 5 bn Indonesian rupiah (€4m). 2. By the Law Gazette (Staatsblad) No. 130, on 20 May 1911. 3. Mahkamah Konstitusi, case No. 46/PUU-XIV/2016. 4. However, the western province of Aceh, which was allowed to have its own criminal law under the peace agreement, criminalizes homosexuality (liwaˆt): in the Qanun Jinayat No. 6 of 2014 (which came into force in 2015). 5. “One is forbidden from exposing oneself or others to a performance or public appearance that exhibits nudity, sexual exploitation, sexual intercourse or other pornographic acts” (Setiap orang dilarang mempertontonkan diri atau orang lain dalam pertunjukan atau di muka umum yang menggambarkan ketelanjangan, eksploitasi seksual, persenggamaan, atau yang bermuatan pornografi lainnya). 6. Report by the Chairman of the Commission for the Reform of the Criminal Code (President Fouad Ammoun), March 1939, “Rapport ge´ne´ral sur la re´forme pe´nale,” in Code pe´nal, 2009, Beirut, Antoine E´dition, pp. 16 et seq. 7. Ibid., p. 18. 8. See, e.g. Veyne, 1982, E´pitre aux Romains, I, 26–7; Chiffoleau, 1990. 9. The crime of sodomy was abrogated with the French Revolution. However, outrages against public decency were aggravated by judges in the case of homosexual acts (Art. 330, al. 2 of Criminal Code) and acts against nature with a juvenile under the age of eighteen (Art. 331, al. 3). One should also note that Art. 175 of the 1871 German Criminal Code punished “acts against nature.”

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Notes to pages 223–241

10. 11. 12. 13.

14.

15.

16.

17. 18.

19.

20.

21.

22.

23. 24.

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See Saghieh, 2009: 31. Ibid. The plea template can be accessed online on the Legal Agenda website. We draw most of the information concerning Egyptian criminal jurisprudence from Husni, 1989, whom Egyptian jurists consider the most authoritative reference in the field. However, on October 25, 2017, several MPs proposed a five-article draft law criminalizing homosexuality, defined as “sexual intercourse with people of the same sex” (Art. 1) and support for or incitement to it. In Arabic, the word da‘aˆra also refers to the notion of debauchery. However, it seems that this particular legislation directly targets prostitution, even though it gives no definition of the terms. Case No. 852/Pid.Sus/2017/PN.JKT.UTR against the four AGS employees; Case No. 853/Pid.Sus/2017/PN.JKT.UTR against the four AGS striptease dancers; Case No. 854/Pid.Sus/2017/PN.JKT.UTR against the two partygoers. BBM (Blackberry Messenger), WA (WhatsApp), and Twitter. The same holds true in Senegal, where investigators look not only for the accused person’s confessions but also for their admission that they knew it was forbidden by the law and local mores (between which they willfully make no distinction). Moreover, in this case, the court adds that the act was committed by a man and a transsexual, which transforms it into an act between a man and a woman, “like any sexual relationship characterized as traditional.” As far as lesbianism is concerned, one can mention the so-called “piano piano case” in Senegal, from the name of the bar where the defendants, five women accused of having kissed each other, were arrested on the night of 11–12 November 2013. Judged one week later for “acts against nature” and “public offense against decency,” they were eventually given the benefit of the doubt and released. To our knowledge, no case of lesbianism has ever been filed in Indonesia, Lebanon, or Egypt. In February 2008, a celebrity magazine published a series of photos, asserting they were taken during a gay marriage ceremony. Most of the men in the photos were arrested but were quickly released due to lack of proof regarding “acts against nature.” This decision generated an unprecedented wave of homophobia in the country. Note that this demand for the application of the law can be made for diametrically opposing purposes: condemning homosexuality, as in the dissenting opinion in the Lebanese case; releasing those accused of homosexuality, as requested by the attorneys for those accused in the Senegalese case. Contrary to what happened in Lebanon until recently, where “liberal” decisions taken by single judges used to be overruled on appeal. This type of medical examination is now forbidden in Lebanon.

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Notes to pages 242–250

25. In Lebanon, the exact opposite occurred, precisely because the courts sought to overrule an established precedent that based convictions on the “impression of obviousness” of what homosexuality is and of the legally established character of its condemnation. 26. “Public sexual indecency” plays a pivotal role, either when established, as a basis for conviction (Indonesia), or when absent, as a reason to preclude it (Lebanon). 27. In the case we described, this is what the Lebanese judges refuse to do, although formerly it was normal practice. 28. Mainly for procedural reasons related to the due process of law, while in Lebanon, the appeal court considered that evidence was inadequate because it did not prove the act and its public character. 29. This was already hypothesized regarding Senegal (see earlier). In Indonesia – and despite the Chief Justice Ordinance according to which first-instance cases must be dealt with in less than five months – it may be considered that the trial (six months) was rather expeditious, considering the number of defendants. This can be explained by the fact that the judges were under media pressure. It can also explain the fact that the more “objective” Pornographic Act was used, despite what the judges considered to be aggravating circumstances, i.e. the attack on Indonesia’s founding principles (Pancasila). In Lebanon, the whole procedure lasted about three years, a duration that is not abnormal but certainly not expeditious. Here, the opposite explanation may be suggested: the lack of a national and international political dimension did not incite the judges to speed up the trial. 30. This is a reference to H. L. A. Hart’s seminal distinction between primary, substantive rules and secondary, habilitating rules (of recognition, change, and adjudication), whose union is characteristic of what he calls “modern legal systems.”

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Index

‘Abbas (Ottoman), 139 ‘Abd al-‘Aziz bin Hasan (Sultan), 104–5, 106 ‘Abd al-Hafid bin Hasan (Sultan), 106 ‘Abduh, Muhammad, 60 Abdu¨lhamid (Ottoman), 103–4 al-‘Abidi, Muhammad al-‘Alawıˆ, 205 Abourabi, Yousra, 125 Abu Hanifa, 209 Abu Yusuf, 209 Acade´mie internationale de droit compare´, 167 Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), 258 ‘Aˆda (habit), 161–2 Adams, John, 99 Adverbial usage of words, 50 Aı¨t El-Hajj, Marzouq, 179 al-‘Alami, al-Sharif, 204–5 Algeciras Conference (1906), 104, 105 Algeria colonial origins of Islamic law in, 41–2 Morand Code, 255 Al-kadd wa’l-si‘aˆya (right of women to compensation for labor), 154–5, 169–71 Al-Qaeda in the Islamic Maghreb (AQIM), 257 ‘Amal (local interpretation), 162–3 Anderson, James Norman Dalrymple, 160–1 Ansar Dine, 257 Anthropology history and, 53 law and, 9, 34, 62, 76, 184, 255 Rex fable (Hart) and, 13–14 Arab Spring, 118, 120, 122, 131 Atias, Christian, 61, 74

Austin, John, 1, 7, 30, 32, 49, 54, 65, 157–8, 159–60, 253 Austria, constitutionalism in, 100 Bachelot, Roselyne, 235 Balafrej, Ahmed, 107, 108 Balakirev, Mili, 154 Beccaria, Cesare, 134–5 de Be´chillon, Denys, 179–80 Bechor, Guy, 164–5 Ben Achour, Yadh, 60 von Benda-Beckmann, Franz, 31 Bentham, Jeremy, 63–4, 69, 134–5, 216, 259 Berque, Jacques, 255 Binnis, Khalid, 205 Bioethics, 259 Blackstone, William, 47, 64 Bloch, Marc, 37 “Block effect,” 67 Bobbio, Norberto, 82 Bolingbroke, Viscount (Henry St. John), 101–2 Bontems, Claude, 41 Boucetta, M’hamed, 171 Bras, Jean-Philippe, 41–2 Brown, Nathan, 40–1, 130–1, 215–16 “Burkini” case, 24, 178, 186–9 Buskens, Le´on, 269 Camau, Michel, 109, 112, 130 Canada, judges in, 78 Cerutti, Simona, 254 Chehata, Chafik, 164, 255 Cheve`nement, Jean-Pierre, 188 Cicero, 159 Cicourel, Aaron, 77

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300 Codification of law generally, 14–15 compilation versus, 216–17 in Egypt, 70, 71, 141 family law, 194 Islamic law, 69–70, 265 Moroccan customary law, effect on, 168 in Ottoman Empire, 71 positive law and, 69–70 precedent and, 217 qaˆnuˆn (law of the state, law as lex) and, 69–70 Colonialism Algeria, colonial origins of Islamic law in, 41–2 Islamic law as colonial invention, 41–3 Moroccan customary law during colonial period, 154, 165–7 Senegal, effect on, 226 Command theory, 7 Common law, 30, 64 Comparative law, 65–8, 220 Conceptual analysis of law generally, 2, 9–11, 20, 29 adverbial usage of words and, 50 contingent concept, law as, 48 contours of inquiry, 21, 29, 43–50 etymological delusion and, 44–5 general and particular and, 47–8 grammatical confusion regarding law, 48–9 Islamic law, 29, 35 legalism, 20, 29, 32–5 legal pluralism (See Legal pluralism) metonymic delusion and, 46 nominalist delusion and, 45–6 nominal usage of words and, 50 ontological conception versus ontological analysis, 49–50 predicative usage of words and, 50 “social reality,” law as, 44 taxonomic categories and, 46–7 translation, problems of, 45 Constable, Marianne, 193 Constitutionalism. See also specific country in Arab world, 109–10 constitutional review, 100, 109 in continental Europe, 100, 102 in democratic countries, 109 etymology of constitution, 101 fiqh (Islamic legal doctrine) and, 122–3

Index Islam and, 122, 123 Islamic law and, 122–3 judicialization of constitutional law, 115 juridicization of constitutional law, 115 in “long nineteenth century,” 102–3 monarchical constitutions, 109–10 in Morocco (See Moroccan constitutionalism) natural law and, 129 “non-constitutional constitutions,” 130 positive law and, 127–8, 129–30 post-Cold War transition to democracy and, 115 secondary rules and, 128–9 sharıˆ ‘a (Islamic normativity) and, 122–3 in socialist countries, 109 Conventions, customs as, 156 Cook, James (Captain), 6 Coulon, Alain, 81 Coulson, Noel J., 160–1 Customary law generally, 154 ‘aˆda (habit), 161–2 ‘amal (local interpretation), 162–3 conventions, customs as, 156 customs versus customary law, 154, 159–60 fiqh (Islamic legal doctrine) and, 160, 161–3 habits, customs as, 156–7 incorporation of customs into legal systems, 154 legal hybridity and, 173–4 legal pluralism and, 172–3 as moral rules turned into positive law by state action, 157–8 in Morocco (See Moroccan customary law) natural law versus, 155 norms, customs as, 156 opinio necessitatis and, 157 positive law versus, 155 recognition of rules and, 158 ‘urf (custom), 154, 160, 161–2, 165 Customary marriage in Egypt, 201 Davidson, Arnold, 56, 75, 135–6 Davis, Donald, 52 Delanoe¨, Bertrand, 235 Delirium tremens, 267 Descartes, Rene´, 74 Descriptive rules, 84–5, 180–1 Dharma, 11, 253

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Index Divorce in Egypt (khul‘), 15–16, 255 in Indonesia, 87–91, 92–3 in praxeological analysis of law, 87–91, 92–3 Documentary method of interpretation, 93, 241–2 Donlan, Sea´n Patrick, 30 Dow Jones Islamic Market Index, 258 Dresch, Paul, 32–4 Dupret, Baudouin, 80, 215 Duve, Thomas, 66, 73 Duverger, Maurice, 116 Dynamic nominalism, 12, 57 Efficacious formalism, 53 Egypt ‘Abduh and maqaˆsid al-sharıˆ ‘a in, 60–1 al-Ahkaˆm al-Shar‘iyya fıˆ ’l-Ahwaˆl alShakhsiyya (1875), 198 al-Azhar University, 62–3, 202 British protectorate in, 139 Cairo University, 202 Civil Code (1948), 70, 72–3, 141, 164–5 Code of Obligations, 255 codification in, 70, 71, 141 Constitution (1971), 122 Constitution (2012), 256 Constitution (2014), 224 constitutionalism in, 22, 99, 104 contempt of religion in, 233 Council of State, 152 Court of Cassation, 141, 152, 198, 210, 214–15, 233, 244 Criminal Code (1937), 152, 224 criminal law in, 224–5 customary marriage in, 201 customs, legal positivization of, 164 debauchery in, 231–3, 244 family courts, 202 family law in, 201–2 fiqh (Islamic legal doctrine) in, 24, 58–9, 67–8, 136, 198, 204, 214–15 forensic psychiatry in (See Forensic psychiatry in Egyptian law) French influence on law, 141, 197–8, 224 haqq (subjective law, right) in, 57 High Probate Council, 148–51 homosexuality cases in, 24–5, 225, 231–3, 236–7, 240, 244, 245, 246 Indigenous Codes (1883), 141, 152, 224

301

Indigenous Courts of Appeal, 141, 146–8, 152 institutional transformations in, 197–8 Islamization in, 163 judges in, 202 khul‘ (divorce) in, 15–16, 255 al-Laˆ’ihat al-Asaˆsiyya (Fundamental Regulation) (1882), 104 law versus morality in, 8 legal transformations in, 197–8 legal transplantation in, 197–8 marriage authentication in, 201, 207–10, 214–15 Ministry of Justice, 202 Mixed Code of Civil Procedure (1876), 141, 145–6, 152, 224 Mixed Courts of Appeal, 141, 142–6, 152 moral dimension of law practice in, 80 National Committee for Bioethics (EGY/ NCB), 259 National Courts, 141 Network of Research Ethics Committees (ENREC), 259 Ottoman influence on law, 141, 224 positive law in, 55, 56–7, 58–9, 62–3, 67–8, 136 public health service in, 136–7 qaˆnuˆn (law of the state, law as lex) in, 5, 57, 58–9 reorganization of court system in, 269 sedentarization in, 163 sets of relevancies in, 17 Sharıˆ ‘a Bar Association, 148, 150 sharıˆ ‘a courts, 198 sharıˆ ‘a (Islamic normativity) in, 56–7, 58–9, 70, 136, 164–5, 198, 256 siyaˆsa (ruler’s justice) in, 57, 58–9, 136 State Council, 198 Supreme Administrative Court, 141 Supreme Constitutional Court, 141, 198, 224, 256 ‘Urabi revolt, 104 ‘urf (custom) in, 165 England. See also United Kingdom Bill of Rights (1689), 99 constitutionalism in, 101–2 Magna Carta, 99 Enlightenment concept of punishment in, 135 positive law and, 54, 216 psychiatry and, 137–8

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302

Index

Entrenchment of rules, 128, 180–1, 242 Esquirol, Jean-Etienne-Dominique, 138 Ethnographic re-specification, 22, 81–2 Ethnomethodology, 78–80 Ethnomethods, 15, 77, 78–80, 182 Etymological delusion, 44–5 Etymology of constitution, 101 of law, 1, 253 of “law properly so called,” 1 of legalism, 34 of norm, 178 of sharıˆ ‘a (Islamic normativity), 45, 253 European Convention on Human Rights (ECHR), 256–7 European Court of Human Rights (ECtHR), 256–7 Evolutionism, 38–9 Fahmy, Khaled, 133, 136–7, 140–1, 150, 151, 152 Family law codification of, 194 customary marriage in Egypt, 201 divorce (See Divorce) in Egypt, 201–2 filling of gaps in, 194 fiqh (Islamic legal doctrine) and, 194 in Indonesia, 203–4 institutional transformations in, 196 legal transformations in, 196 marriage (See Marriage) marriage authentication (See Marriage authentication) Moroccan customary law, 169 in Morocco, 199–201 Fantappie`, Carlo, 101 al-Fasi, ‘Abd al-Rahman, 204–5 El Fassi, Allal, 107–8, 168 von Feuchtersleben, Ernst, 269 Fillon, Franc¸ois, 188 Fiqh (Islamic legal doctrine) generally, 24 constitutionalism and, 122–3 contemporary Islamic law and, 40–1 customary law and, 160, 161–3 in Egypt, 24, 58–9, 60–1, 136, 198, 204, 214–15 family law and, 194 in Indonesia, 24, 199, 203, 204 marriage authentication and, 24, 196, 204 modern law, relation to, 216, 218 Moroccan constitutionalism and, 130

in Morocco, 24, 197, 204 national laws, continuum with, 196 positive law and, 4, 72–3, 216 “reference to Islam” and, 215 in Tunisia, 60–1 Folk law, 30 Forensic psychiatry in Egyptian law generally, 22–3, 141–2 alimony case, 148–51 asylums, 139 civil law, influence of, 143, 145–6, 151–2, 153 codification, importance of, 152 courts, importance of development of, 152 experts and, 145–6 French influence on, 143, 145–6, 148, 151–2 in High Probate Council, 148–51 historical background, 132–3, 151 in Indigenous Courts of Appeal, 146–8 inheritance case, 146–8 judicial fees and, 145–6 lexicon of, 143–4, 146, 148, 150–1 in Mixed Courts of Appeal, 142–6 murder case, 142–4 nation-state, importance of development of, 133 Ottoman influence on, 133, 151–2 positive law and, 133–4 psychiatric treatment, 139 psychiatry, importance of development of, 133–4 railroad accident case, 144–6 sharıˆ ‘a (Islamic normativity) and, 140–1 siyaˆsa (ruler’s justice) and, 140–1 Formalism, 249 Foucault, Michel, 12–13, 54, 56, 58, 75, 134, 136 France Algeria, colonial origins of Islamic law in, 41–2 Association for the Defense of Human Rights-Collective against Islamophobia in France, 187 asylums in, 138–9, 140 “burkini” case, 24, 178, 186–9 Civil Code of 1804, 14, 70 Code Napole´on, 197 Constitution (1958), 116 Constitutional Council, 115 constitutionalism in, 99, 101 Council of State, 178, 187–9, 270 Criminal Code, 226

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Index Egyptian law, influence on, 141, 197–8, 224 Fifth Republic, 116, 120 forensic psychiatry in Egyptian law, influence on, 143, 145–6, 148, 151–2 “functional Gaullism,” 116 “hereditary Gaullism,” 116 Lebanese law, influence on, 222 Moroccan constitutionalism, influence on, 116, 120 New Laı¨cite´, 189, 190–1, 270 Penal Code, 221 Senegalese law, influence on, 225, 226 Frank, Jerome, 249 Freud, Sigmund, 136, 269 Fuller, Lon, 179 Garfinkel, Harold, 2, 77, 83, 93, 182, 183, 185 Gatteschi, Domenico, 72–3 Gemei, Hassan, 8–9 Generality versus particularity generally, 23–4, 192–3 “burkini” case, 24, 178, 186–9 categorization and, 178, 181–6 in conceptual analysis of law, 47–8 ethnomethods and, 182 “family resemblances” and, 182 legal authority and, 191–2 as legal categories, 178 legal reasoning and, 185–6 legal rules, generality and, 178–81 methods of distinguishing, 182 ordinary reasoning and, 182–3, 184–5 in ordinary world, 183 praxeological re-specification of, 178 primary rules and, 190, 191 public statements and, 190–1 regulatory authority and, 191 rule of law, generality and, 177, 178–81 secondary rules and, 190 typicality and, 183–4, 186 Ghazzal, Zouhair, 72 Gillotte, Charles-Emmanuel-Euge`ne, 72–3 Ginzburg, Carlo, 74 Globalization of positive law, 54–5, 71–2 Gluckman, Max, 30 Goffman, Erving, 17 Goldberg, Ian, 268 Grammar of interactions, 16 Greece, Civil Code, 256–7 Grundnorm, 129

303

Habits, customs as, 156–7 Hacking, Ian, 2, 53, 56, 57, 93, 154 al-Hakim, Tawfik, 264–5 Halabi, 72–3 Halaˆl food, 258–9 Hallaq, Wael, 40–1, 215–16 Halpe´rin, Jean-Louis, 14, 53–4, 65–6, 67, 71 Hamon, Benoıˆt, 188 Hanafi school of Islamic doctrine, 198, 201, 209, 210, 214–15 Hanbali school of Islamic doctrine, 200 Haqq (subjective law, right), 4–5, 57 “Hard” cases, 219, 242 Hart, Herbert (H.L.A.), 7–8, 10, 11, 18, 30, 34, 52, 67, 83–4, 86, 128, 179–80, 191, 276 Hasan II (Morocco), 112–15, 116–17 Hawaiians, deification of Captain Cook, 6 Heckendorn Urscheler, Lukas, 30 Heinich, Nathalie, 191 Henry, Jean-Robert, 42 Historical analysis of law generally, 2, 11–15, 20 dynamic nominalism and, 12, 57 efficacious formalism and, 53 historical ontology, 11–15, 21, 53, 55–62, 73–5 legal systematization, 14 paradigmatic change, 12–13 “pragmatic history,” 254 primary rules, secondary rules versus, 13–14 Historical determinism, 35–6 Historical ontology, 11–15, 21, 53, 55–62, 73–5 Hobbes, Thomas, 33, 61, 69, 253, 259 Hobsbawm, Eric, 102 Hoffman, Katherine E., 269 Homosexuality cases generally, 24–5, 220, 227 comparability of cases, 220 conduct versus status, 12 counternarratives in, 246–9 documentary method of interpretation in, 241–2 in Egypt, 24–5, 225, 231–3, 236–7, 240, 244, 245, 246 evidence in, 238–42 facts in, 236–8 historical ontology and, 56 “impregnation by contiguity” in, 240–1 in Indonesia, 24–5, 221–2, 227–9, 238–9, 242–3, 245

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304

Index

Homosexuality cases (cont.) in Lebanon, 24–5, 222–4, 229–31, 237, 243–4, 246, 247–9 legal reasoning in, 236 lesbianism cases in Senegal, 275 master-narratives in, 244–6 moral rules and, 219–20 rules in, 242–4 in Senegal, 24–5, 226, 233–6, 241–2, 243, 245–6 Honore´, Tony, 83–4 Hoyle, Mark, 268 Hume, David, 267 Ibn ‘Ardun (the Great), 169–70 Ibn ‘Asim, 204–5 Ibn Farhun, 204–5 Ibn Juzayy, 204–5 Ibn Lubb, 205, 206, 272 Ibn Qasim, Abu al-Hasan ‘Ali, 204–5 Ibn Rushd, 204–5 Ibrahim, Ahmed Fekry, 39–41, 215–16, 265 Ideological basis of law, 51 Ijtihaˆd (effort of interpretation), 66, 214 India constitutionalism in, 100 customs, legal positivization of, 163–4 Indigenous societies law in, 5–7 “primitive mentality,” 5–7 Indonesia generally, 22 characterization of facts in, 89–91 Constitution, 199 context in, 87 criminal law in, 221 debauchery in, 221–2 divorce in, 87–91, 92–3 Dutch influence on law, 199, 203, 221, 271 family law in, 203–4 fiqh (Islamic legal doctrine) in, 24, 199, 203, 204 homosexuality cases in, 24–5, 221–2, 227–9, 238–9, 242–3, 245 institutional transformations in, 198–9 judges in, 203–4 Judicial Authorities Act (2009), 210–11 Kompilasi Hukum Islam (Compilation of Islamic Law/KHI), 92–3, 203, 211, 213

legal transformations in, 198–9 Marriage Act (1974), 199, 203, 213 marriage authentication in, 210–14, 215 Ministry of Religious Affairs, 203 “New Order,” 203 “Old Order,” 203 Pancasila (five pillars), 199, 271 Penal Code (KUHP), 221, 228 Pornography Law, 222, 227, 242–3, 245 procedural correctness in, 91 relevance in, 88–9 Religious Courts of Appeal, 204 Religious Courts of First Instance, 204 Religious Judicature Act (1989), 203, 213 sharıˆ ‘a (Islamic normativity) in, 199, 203 Sistem Informasi Administrasi Perkara Pengadilan Agama (Administration and Information Systems of Religious Court Cases/SIADPA), 211–13, 215 Sistem Informasi Penelusuran Perkara (Information System for Case Searching/ SIPP), 211–13, 215 statistics regarding, 87 Supreme Court, 203–4 Unofficial Compilation of Shafi‘i Fiqh Texts (UCSFT), 211, 213–14, 215 Institutional context, 16 “Instructed action,” 251–2 International Conference on AIDS and STI in Africa (ICASA), 233 International Congress of Comparative Law (1900), 65 International Criminal Court (ICC), 257 Interpretation ‘amal (local interpretation), 162–3 documentary method of, 93, 241–2 ijtihaˆd (effort of interpretation), 66, 214 “instructed action,” 251–2 rules, standardization of interpretation, 217–18 Iran constitutionalism in, 99, 104 Mutammim-i Qaˆnuˆn-i Asaˆsıˆ (Supplement to Fundamental Law) (1907), 104 Qaˆnuˆn-i Asaˆsıˆ (Fundamental Law) (1906), 104 Iraq, Constitution, 122 Islamic finance, 258 Islamic positive law generally, 20–1 ‘aˆda (habit), 161–2

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Index ‘amal (local interpretation), 162–3 codification of, 69–70, 265 as colonial invention, 41–3 conceptual analysis of, 29, 35 conceptual overstretching, 37–9 constitutionalism and, 122–3 contingent nature of disputed, 37–8 continuity in, 215–16 evolutionism and, 38–9 fiqh (Islamic legal doctrine) (See Fiqh (Islamic legal doctrine)) historical continuity of, 39–41 historical determinism and, 35–6 hybrid nature of disputed, 37–8, 39 Jewish law versus, 37–8, 66 Moroccan constitutionalism and, 22 normativity and, 11, 15, 74 positivization of, 19–20, 64, 255–7 pragmatic eclecticism and, 39–40 “reference to Islam,” 215 Roman law versus, 37–8, 44, 66 sharıˆ ‘a (Islamic normativity) (See Sharıˆ ‘a (Islamic normativity)) syncretic nature of disputed, 37–8, 39 ‘urf (custom), 154, 160, 161–2, 165 Ismail (Khedive), 150 Italy, magistrates in, 78 Japan constitutionalism in, 100, 103 Meiji era in, 55 positive law in, 55 Jeammaud, Antoine, 180 Jewish law, Islamic law versus, 37–8, 66 von Jhering, Rudolph, 66 Judicial discretion, 194–6 Julian, 157 Juppe´, Alain, 189 Kant, Immanuel, 31, 34 Kaufmann, Jean-Claude, 270 Kelsen, Hans, 14, 30–1, 32, 63, 65, 66, 69, 82, 127, 129, 194–5, 253, 267 el-Kettani, Mohamed Mountassir, 110–11, 123 Khalil (Sheikh), 72–3, 204–5, 206 Khul‘ (divorce in Egypt), 15–16, 255 Kosselleck, Reinhart, 2, 61–2, 69 von Krafft-Ebbing, R., 135–6 Kuhn, Thomas, 12–13 Kuran, Timur, 35–6, 40

305

Lafıˆf (conventional testimony of group of witnesses), 206–7 Lambert, Edouard, 66, 67, 164 Latour, Bruno, 192 Laval, Pierre, 108 Law anthropology and, 9, 34, 62, 76, 184, 255 codification of (See Codification of law) conceptual analysis of (See Conceptual analysis of law) as contingent concept, 48, 51, 74 etymology of, 1, 253 extendibility to other times and places, 2 grammatical confusion regarding, 48–9 historical analysis of (See Historical analysis of law) ideological basis of, 51 in indigenous societies, 5–7 Islamic positive law (See Islamic positive law) “law” versus “laws,” 2–3, 4 legal practices versus laws, 171–2 morality distinguished, 7, 8–9, 94–6 natural sciences compared, 10 normativity and, 34–5 norms versus laws, 15, 171–2 positive law (See Positive law) praxeological analysis of (See Praxeological analysis of law) psychiatry and, 139–40 religion distinguished, 9 sharıˆ ‘a (Islamic normativity) (See Sharıˆ ‘a (Islamic normativity)) as “social reality,” 44 “spirit of the laws,” 2–4 state and, 129 understood as positive law, 253–4 as universalizing process, 51 “Law properly so called” generally, 253 etymology of, 1 law by analogy versus, 7 state and, 54 Layish, Aharon, 163 Lebanon “acts against nature” in, 243, 246, 247 Civil Procedure Code, 222, 223 Commercial Code, 222 Committee of Muslim Ulamas, 230 Criminal Chamber of the Court of Cassation, 223

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306

Index

Lebanon (cont.) Criminal Circuit of the Court of Appeal, 222–3 Criminal Code, 222–4, 229–31, 243–4, 247–9 Criminal Procedure Code, 222 French influence on law, 222 Helem (NGO), 223 homosexuality cases in, 24–5, 222–4, 229–31, 237, 243–4, 246, 247–9 Legal Agenda (NGO), 223 Misdemeanors Court of Appeal, 222 Obligations and Contracts Code, 222 Ottoman influence on law, 222 Legal borrowing, 158–9 Legal hybridity, customary law and, 173–4 Legalism, 20, 29, 32–5 Legal orientalism, 254 Legal pluralism generally, 5–6, 20, 29 common law and, 30 customary law and, 172–3 folk law and, 30 normativity and, 30–1, 32 problems with, 31–2, 73–4 weak versus strong pluralism, 172–3 Legal positivism, 7–8, 63–4 “Legal positivization,” 21 Legal realism critique of positive law, 219 “soft rule skepticism” and, 249–50 Legal restraints theory, 250–1 Legal systematization, 14 Legal transplantation, 158–9, 197–8 Lenoble, Jacques, 192, 242 Le Pen, Marine, 188 Lesbianism cases in Senegal, 275 Levi, Edward, 33 Le´vy-Bruhl, Lucien, 6 LGBTIQ cases. See Homosexuality cases Linant de Bellefonds, Yvon, 161 Lisaˆn al-Maghrib (Moroccan newspaper), 106, 123–4 Livet, Pierre, 184 Livingston, Eric, 251 Llewellyn, Karl, 249 Locke, John, 33 de Lolme, Jean-Louis, 102 “Long nineteenth century,” 102–3

“Looping effect,” 93 Luhmann, Niklas, 62 Lyautey, Marshal, 166, 167 Lynch, Michael, 78 al Mahdi, Ahmad al-Faqi, 257 Maliki school of Islamic doctrine, 124, 161–2, 199–200, 204–7, 214 Managerial norms, 257–8 Manzo, John, 78 Maqaˆsid (objectives of sharıˆ ‘a), 60–1 Marcy, Georges, 167 Marriage authentication (See Marriage authentication) concept of marriage, 44 customary marriage in Egypt, 201 divorce (See Divorce) historical ontology and, 61–2 “love” and, 92–3 Marriage authentication generally, 196, 204 in Egypt, 201, 207–10, 214–15 fiqh (Islamic legal doctrine) and, 24, 196, 204 in Indonesia, 210–14, 215 lafıˆf (conventional testimony of group of witnesses), 206–7 in Morocco, 200, 205–7, 214 Maynard, Douglas, 78 al-Mazari, 162 Meehan, Albert, 78 Mekouar, Ahmed, 107 Me´lenchon, Jean-Luc, 188 Melissaris, Emmanuel, 31 Menski, Werner, 31 Mental alienation, 132–3 Metonymic delusion, 46 Midhat Pasha (Ottoman), 103–4 Millard, Eric, 64 Milliot, Louis, 162–3, 167, 255 Monarchical constitutions, 109–10 Monomania, 267 Montagne, Robert, 166 Montesquieu, 2–4, 10, 64, 65, 99, 102, 194 Morality application of moral rules, 8 customary law as moral rules turned into positive law by state action, 157–8 form of moral rules, 9

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Index homosexuality cases, moral rules and, 219–20 law distinguished, 7, 8–9, 94–6 mathematical calculation and, 134–5 objectives of moral rules, 9 positive law, understood through vantage point of, 7–9 sanctions imposed by moral rules, 8–9 Morand, Marcel, 42 Moroccan constitutionalism generally, 22, 100–1, 131 ‘Abd al-Karim Murad al-Tarabulsi Memorandum (1906), 105–6, 124 ‘Abd Allah bin Sa‘id Memorandum (1901), 104–5, 106 ‘Ali Znibir Memorandum (1906), 105 Commandery of the Faithful, 124, 125–7 “Conditional Allegiance” draft (1908), 106 consensual alternation and, 117–18 Constitution (1962), 113, 168 Constitution (1972), 113 Constitution (1996), 116–17 Constitution (2011), 119–21, 125–6 Constitution for the Sharifian Kingdom (1908), 106, 123–4 democracy versus monarchy in, 112–15 domain of competencies, Islam as, 125 fiqh (Islamic legal doctrine) and, 130 frame of reference, Islam as, 125 French influence on, 116, 120 Fundamental Law of the Kingdom of Morocco (al-qaˆnuˆn al-asaˆsıˆ li’l-mamlaka al-maghribiyya) (1961), 100, 112–13 historical context, 22 independence-consolidating constitutionalism (“short twentieth century”), 101, 110–15 Islam and, 22, 123–7 King, religious powers of, 124, 125–7 liberalizing constitutionalism (post-1990), 101, 116–21 Lisaˆn al-Maghrib draft (1908), 106, 123–4 Memorandum of the Consultation and Independence Party (1947), 111 Moroccan Action Committee draft (1934), 107–8, 123 openness and, 125 positive law and, 130 reformist constitutionalism (“long nineteenth century”), 101, 104–8 revolutionary context, 22

307

sharıˆ ‘a (Islamic normativity) and, 126, 130 sovereignty and, 107, 109 Sultan and, 124 technical constitutionalism, 22 tolerance and, 125 Moroccan customary law generally, 22, 154–5 codification, effect of, 168 colonial period, during, 154, 165–7 contract law, 168 family law, 169 independence, effect of, 167–8 integration of, 169 al-kadd wa’l-si‘aˆya (right of women to compensation for labor), 154–5, 169–71 sharıˆ ‘a (Islamic normativity) and, 167–8 ‘urf (custom) in, 165 Morocco Advisory Committee on Regionalization, 118 Berber Dahir (1930), 107, 166, 197 Chamber of Counsellors, 117–18 Chamber of Representatives, 117–18 Code of Personal Status, 168 Commission for the Reform of the Mudawwana, 171 Compendium of Sharifian Case-Law, 255 Constitutional Council, 117 constitutionalism (See Moroccan constitutionalism) Consultation and Independence Party, 111 Court of Cassation, 214 customary law (See Moroccan customary law) Democratic Bloc, 116 Economic, Social and Environmental Council, 118 Economic and Social Council, 117 Family Code (2004), 118, 126, 169, 171, 200, 205–7, 214 family law in, 199–201 February 20 Movement, 118–19, 120, 131 fiqh (Islamic legal doctrine) in, 24, 197, 204 French protectorate in, 104, 107, 110–11 Front for the Defense of Constitutional Institutions (FDCI), 113 ijtihaˆd (effort of interpretation) in, 214 independence of, 111 Independence Party (Istiqlal), 108, 110–11, 112, 113, 116, 168 Institut des Hautes Etudes Marocaines, 166 institutional transformations in, 197

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308

Index

Morocco (cont.) judges in, 200–1 Judicial Organization Law, 200 Law of Unification, Moroccanization, and Arabization of Moroccan Justice (1965), 197 legal transformations in, 197 Makhzen courts, 197 marriage authentication in, 200, 205–7, 214 National Bloc, 117, 118 National Consultative Assembly, 112 National Council of Human Rights, 118 National Institute of Judicial Studies, 200–1 Nationalist Movement, 108, 110 National Party for the Realization of Demands, 108 National Union of Popular Forces (NUPF), 113 Organization of Popular Democratic Action, 116 Parliament, 117–18 Party of the Caliphate, 110–11 Patriotic National Front, 110 Patriotic Union of Popular Forces, 116 Personal Status Code (PSC) (1957), 199–200, 214, 272 Progress and Socialist Party, 116 Qarawiyyıˆn University, 200–1, 214 Reform Party, 123 Royal Institute for Amazigh Culture, 118 Seine Saint-Cloud Declaration (1955), 111 Shra‘ courts, 197, 205 Socialist Union of Popular Forces, 116 Supreme Audit Council, 117 Supreme Institute of the Judiciary, 200–1, 214 Young Moroccans, 107 Mouaqit, Mohamed, 126, 170 Mouline, Mohammed Nabil, 100, 107, 110 Muhammad, Muhammad ‘Abd al-Jawad, 164–5 Muhammad V (Morocco), 108, 110, 112–13 Muhammad VI (Morocco), 118–19, 126 Muhammad ‘Ali (Ottoman), 139 Multiple modernities, 134 Murphy, Bernard, 155, 156, 159–60 Natural law constitutionalism and, 129 customary law versus, 155 “law” versus “laws,” 61

positive law versus, 3, 19, 61 Netherlands Civil Code, 203 Indonesian law, influence on law, 199, 203, 221, 271 Penal Code, 221 Nominalist delusion, 45–6 Nominal usage of words, 50 “Non-constitutional constitutions,” 130 “Normal crimes,” 77–8, 186, 238, 245 Normative positivization of bioethics, 259 of halaˆl food, 258–9 of Islam, 261–2 of Islamic finance, 258 of managerial norms, 257–8 of technical norms, 257–8 Normativity customs as norms, 156 etymology of norm, 178 Islamic law and, 11, 15, 74 law and, 34–5 laws versus norms, 15, 171–2 legal pluralism and, 30–1, 32 legal practices versus norms, 171–2 norm-creating institutions, 128 norms of reference, 17–18 sharıˆ ‘a (Islamic normativity) (See Sharıˆ ‘a (Islamic normativity)) Obeyeskere, Gananath, 6 d’Ohsson, Ignace Mouradja, 72–3 Opinio necessitatis, 157 Ordinary language, 15–16 Ost, Franc¸ois, 192, 242 Otto, Jan Michiel, 154 Ottoman Empire codification in, 71 constitutionalism in, 22, 99, 103 Criminal Code (1858), 222 Egyptian law, influence on, 141, 224 forensic psychiatry in Egyptian law, influence on, 133, 151–2 Khatt-i Sharıˆf (Noble Edict) (1839), 103 Lebanese law, influence on, 222 Mecelle, 164, 255, 269 Penal Code (1851), 141, 224 positive law in, 55 Qaˆnuˆn-i Esaˆsıˆ (Fundamental Law) (1876), 103

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Index Papadopoulo, Alexandre, 38 Paradigmatic change, 12–13 Parolin, Gianluca, 4 The People’s Action (Moroccan newspaper), 108 Permanent alienation, 268 Perron, Nicolas, 164 Peters, Ruud, 198 Pinel, Philippe, 138 Ponsot, Henri, 108 Positive law art of law versus science of law, 63–4, 65, 66–7 codification and, 69–70 comparative law and, 65–8 constitutionalism and, 127–8, 129–30 as contingent concept, 50–2 “core and penumbra,” 18–19 customary law versus, 155 in Egypt, 55, 56–7, 58–9, 62–3, 67–8, 136 emergence of, 18 Enlightenment and, 54 fiqh (Islamic legal doctrine) and, 4, 72–3, 216 globalization of, 54–5, 71–2 “Great Divide” and, 54, 62 Islamic law, positivization of, 19–20, 64, 255–7 law understood as, 253–4 legal positivism and, 7–8, 63–4 “legal positivization,” 21 legal realist critique of, 219 morality understood through vantage point of, 7–9 Moroccan constitutionalism and, 130 natural law versus, 3, 19, 61 objectification of law and, 62, 64–5 other normative systems compared, 253–4 as paradigmatic revolution, 54, 62–8, 74 psychiatry and, 133–4 religion understood through vantage point of, 7 as science, 62, 64–5, 216, 260 sharıˆ ‘a (Islamic normativity), positivization of, 20, 72–3, 256–7 state and, 54–5, 63, 69 universalism of, 18–19 Pragmatic eclecticism, 39–40 “Pragmatic history,” 254 Praxeological analysis of law generally, 2, 15–18, 20, 21–2, 76–7, 255, 260–1 causation, 83–4

309

characterization of facts and, 89–91 context and, 87 cross-examination, 80 descriptive rules, 84–5 divorce, 87–91, 92–3 ethnographic re-specification and, 22, 81–2 ethnomethods and, 15, 77, 78–80 generality versus particularity (See Generality versus particularity) grammar of interactions, 16 institutional context, 16 judges, 78 juries, 78 juvenile justice, 77, 78 law firms, 79 lawyers, 78 magistrates, 78 moral dimension of law practice, 80 “normal crimes,” 77–8, 186, 238, 245 norms of reference, 17–18 precedent, 86 prescriptive rules, 84–5 procedural constraints, 16–17 procedural correctness and, 91, 92 production of documents and, 93–4 relevance and, 88–9 rules, praxeological approach to, 84–6, 251–2 “sciences of law” and, 82–3 sets of relevancies, 17 technical and ordinary language, 15–16 Precedent codification and, 217 judicial discretion and, 195 in praxeological analysis of law, 86 Predicative usage of words, 50 Prescriptive rules, 84–5, 180–1, 191 Primary rules generality versus particularity and, 190, 191 in historical analysis of law, 13–14 in praxeological analysis of law, 84 secondary rules versus, 13–14, 69, 84, 276 Procedural constraints, 16–17 Prussia Civil Code, 61–2 marriage in, 61–2 Przeworski, Adam, 266 Psychiatry asylums, 138–40 consciousness, liability and, 152 delirium tremens, 267 emergence of, 137–8

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310

Index

Psychiatry (cont.) Enlightenment and, 137–8 forensic psychiatry in Egyptian law (See Forensic psychiatry in Egyptian law) law and, 139–40 mental alienation, 132–3 monomania, 267 permanent alienation, 268 positive law and, 133–4 “positive psychiatry,” 138 psychosis, 269 psychotic personality, 152 Psychosis, 269 Psychotic personality, 152 Puchta, Georg Friedrich, 66 Punishment, paradigmatic shift in, 134–5 Qadri Pasha, Muhammad, 198, 210 Qaˆnuˆn (law of the state, law as lex) codification and, 69–70 in Egypt, 5, 57, 58–9 al-Qayrawaˆnıˆ, Abuˆ Zayd, 204–5 Quran, 160, 162, 258, 259 Rachik, Hassan, 126 Raj, Kapil, 102–3 Raz, Joseph, 73, 128 “Reference to Islam,” 215 Religion law distinguished, 9 positive law, understood through vantage point of, 7 religious rules, 9 Renucci, Florence, 42 Rex fable (Hart), 13–14 Roberts, Simon, 10 Robinson, Richard, 155 Roman law codification versus, 14, 264 Islamic law versus, 37–8, 44, 66 Rome Statute, 257 Rubin, Avi, 71, 134 Rule of law generality and, 177, 178–81 relational understanding of, 177 Rule of the Mendicant Orders, 101 Rules customary law, recognition of rules and, 158 descriptive rules, 84–5, 180–1 entrenchment of, 128, 180–1, 242

formalism and, 249 generality versus particularity (See Generality versus particularity) in homosexuality cases, 242–4 ideal of, 249 interpretation of (See Interpretation) legal realism and, 249–50 legal rules, generality and, 178–81 moral rules (See Morality) praxeological approach to, 84–6, 251–2 prescriptive rules, 84–5, 180–1, 191 primary rules (See Primary rules) religious rules, 9 rule skepticism, 249 secondary rules (See Secondary rules) sociologism and, 249 “soft rule skepticism,” 249–50 standardization of formation, 217–18 standardization of interpretation, 217–18 theory of legal restraints and, 250–1 Sacks, Harvey, 78, 185 Sahlins, Marshall, 6 Saillomy, Doctor, 132–3 Salaymeh, Lena, 37–8 al-Sanhuri, ‘Abd al-Razzaq, 70, 71, 164–5 Sarkozy, Nicolas, 188, 235 von Savigny, Friedrich Karl, 66, 157, 164 Schauer, Frederick, 84–5, 128, 180–1, 191 Scheffer, Thomas, 80 Schu¨tz, Alfred, 185 Science art of law versus science of law, 63–4, 65, 66–7 law, natural sciences compared, 10 positive law as, 62, 64–5, 216, 260 “sciences of law,” 82–3 “scientification,” 259–60 Searle, John, 251 Secondary rules of adjudication, 13–14 of change, 13–14 constitutionalism and, 128–9 generality versus particularity and, 190 in historical analysis of law, 13–14 in praxeological analysis of law, 84 primary rules versus, 13–14, 69, 84, 276 of recognition, 13–14

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Index Senegal “acts against nature” in, 226, 233–6, 243, 245–6 Aides Se´ne´gal (NGO), 233 colonialism, effect of, 226 Court of Cassation, 235 Criminal Code (1965), 225–6 Criminal Procedure Code, 235 French influence on law, 225, 226 “gay marriage” affair, 233, 275 homosexuality cases in, 24–5, 226, 233–6, 241–2, 243, 245–6 Jamra (NGO), 235 lesbianism cases in, 275 ONDH (human rights NGO), 234–5 RADDHO (human rights NGO), 234–5 Sets of relevancies, 17 Sexuality, paradigmatic shift in, 135–6 Shafi‘i school of Islamic doctrine, 200, 214 Shaham, Ron, 163 Shari‘ah Standards for Islamic Financial Institutions, 258 Sharıˆ ‘a (Islamic normativity) generally, 5 applicability of, 160–1 constitutionalism and, 122–3 in Egypt, 56–7, 58–9, 60–1, 70, 136, 164–5, 198, 256 etymology of, 45, 253 forensic psychiatry in Egyptian law and, 140–1 in Indonesia, 199, 203 Moroccan constitutionalism and, 126, 130 Moroccan customary law and, 167–8 positivization of, 20, 72–3, 256–7 in Tunisia, 60–1 Shklar, Judith, 69 Shmueli, Avshalom, 163 Sibum, Otto, 102–3 Siyaˆsa (ruler’s justice) in Egypt, 57, 58–9, 136 forensic psychiatry in Egyptian law and, 140–1 Smith, Adam, 259 Sociologism, 249 Soeharto, 203 Soekarno, 203 Soesilo, 221–2

311

“Soft” cases, 219, 242 “Soft rule skepticism,” 249–50 Sohrabi, Nader, 103 Spirit of the Laws (Montesquieu), 2–4 State customary law as moral rules turned into positive law by state action, 157–8 law and, 129 “law properly so called” and, 54 legal order and, 127 positive law and, 54–5, 63, 69 “State Islamism,” 122 Stolleis, Michael, 55–6, 59–60 Sudnow, David, 77–8, 185, 186, 245 Sunna, 160 Sutton, Thomas, 267 Switzerland, Civil Code, 195 Systemism, 54 al-Tahtawi, Rifa‘a, 4–5, 56–7 Tamanaha, Brian, 69, 81–2 Tashrıˆ ‘ (legislation), 5, 45, 58–9 al-Tasuli, 205, 272 Technical language, 15–16 Technical norms, 257–8 Terem, Etty, 162–3 Testart, Alain, 14, 38 Theory of command, 7 Theory of legal restraints, 250–1 Thomas, Yan, 53, 59 Thomas of Aquinas (Saint), 19, 61, 68 al-Titwani, Sheikh Muhammad al-Murir, 205 Toullier, Charles-Bonaventure-Marie, 178–9 Touraine, Marisol, 188 Travers, Max, 78, 79 Treaty of Fes (1912), 104, 107, 110, 165 Treaty of Paris (1763), 102–3 Treaty of Versailles (1919), 102–3 Troper, Michel, 69, 82, 127, 264 Tunisia ‘Ahd al-amaˆn (Pledge of Safety) (1857), 103 Ben Achour and maqaˆsid al-sharıˆ ‘a in, 60–1 constitutionalism in, 22, 99, 103–4 fiqh (Islamic legal doctrine) in, 60–1 French protectorate in, 103 Qaˆnuˆn al-Dawla al-Tuˆnisiyya (Law of the Tunisian State) (1861), 103 Santillana Code, 255 sharıˆ ‘a (Islamic normativity) in, 60–1

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312

Index

Ulpian, 157 United Kingdom. See also England asylums in, 140 cross-examination in, 80 psychiatry in, 138 United Nations, 54 United States constitutionalism in, 99–100, 101 Massachusetts Constitution (1780), 99 ‘Urf (custom), 154, 160, 161–2, 165 Utilitarianism, 54, 64, 134–5, 216

al-Wansharisi, 204–5 Warnock, John, 139 Watson, Alan, 38, 55, 67, 156, 158 al-Wazzani, al-Mahdi, 204–5, 207 al-Wazzani, Muhammad Hasan, 108, 111 Weber, Max, 14, 48, 70, 253 Winch, Peter, 35 Wittgenstein, Ludwig, 2, 9, 43, 56, 75, 155, 179–80, 182 Wood, Leonard, 58, 130, 148, 163–4 Woodman, Gordon, 32

Vallaud-Balkacem, Najat, 188 Valls, Manuel, 188 Van Hoecke, Mark, 30–1 Van Stae¨vel, Jean-Pierre, 161

Yakin, Ayang Utriza, 87, 92 Zambelli, Christophe, 132–3, 140, 268 Zappulli, Luisa, 78

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