The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law 9780226749358

Citation preview

The Expert Witness in Islamic Courts

The Expert Witness in Islamic Courts medicine and crafts i n t h e s e rv i c e o f l aw

Ron Shaham

The University of Chicago Press c h i c a g o & l o n d o n

r o n s h a h a m is senior lecturer in the Department of Islamic and Middle Eastern Studies at the Hebrew University. He is the author of Family and the Courts in Modern Egypt: A Study Based on Decisions by the Sharia Courts 1900–1955 (1997) and the editor of Law, Custom, and Statute in the Muslim World: Studies in Honor of Aharon Layish (2007). The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2010 by The University of Chicago All rights reserved. Published 2010 Printed in the United States of America 19 18 17 16 15 14 13 12 11 10

1 2 3 4 5

ISBN-13: 978-0-226-74933-4 (cloth) ISBN-10: 0-226-74933-9 (cloth) Library of Congress Cataloging-in-Publication Data Shaham, Ron. The expert witness in Islamic courts : medicine and crafts in the service of law / Ron Shaham. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-226-74933-4 (hardcover : alk. paper) ISBN-10: 0-226-74933-9 (hardcover : alk. paper) 1. Medical jurisprudence (Islamic law) 2. Evidence (Islamic law) 3. Evidence, Expert. 4. DNA fingerprinting (Islamic law) 5. Courts, Islamic. I. Title. kbp4700.s42 2010 340.5´9—dc22 2009016703 The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences— Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

For my four beloved ones, i r i t , av i ga i l , da f na , & na  a m a

contents

Acknowledgments Introduction

ix 1

p a r t i The Premodern Period 1

Between a Witness, a Reporter, and a Judge: The Probative Status of the Expert

27

2

The Right Hand of Qadis: Male Experts in Judicial Practice

56

3

Agents of Patriarchy in the Secluded World of Women: Females as Expert Witnesses

83

p a r t i i The Modern Period 4

Continuity and Reform: The Egyptian Expert System in a Comparative Perspective

5

Revealing the Secrets of the Body: Litigants, Courts, and Modern Medicine in Egypt

6

101

121

From Physiognomy to DNA Testing: Developments in the Establishment of Paternity

154

Conclusion: Islamic Expert Witnessing in Comparative Perspective

189

Appendix: List of Court Decisions

195

Notes

199

References

249

Index

263

acknowledgments

During the long period I have spent working on this book, I have enjoyed and benefited from the advice and generosity of a number of persons and institutions. My friend and colleague David Powers offered his hospitality during the summers of 2003 and 2004 in Ithaca, New York, where I wrote parts of the manuscript. He also read and commented on a couple of the chapters. I wish to thank him and his wife, Jane, for all they did for me. The final parts of the book were written in Seattle, where in 2006–7 I spent a sabbatical as a visiting scholar at the Middle East Institute, affiliated with the Jackson School of International Studies, University of Washington. I am grateful to Ellis Goldberg, the director of the institute, for his hospitality and for providing the academic means needed for my work. I also wish to thank my friend from the law school there, Clark Lombardi, who discussed some of the topics of the study with me and assisted in locating relevant legal materials. A number of colleagues—Avner Giladi, Nimrod Hurvitz, Liat Kozma, Clark Lombardi, Kristen Stilt, and Aron Zysow—read chapters from the manuscript and contributed their insights and comments, which helped me to improve its content. On more specific issues I consulted with Eyal Ginio, Miri Shefer, Alex Stein, Elimelech Westreich, and Paul Nicholas. I thank them all. I am of course responsible for any shortcomings remaining in the book. I also wish to thank my two research assistants, Neta Marmur and Manar Muhalwas, who were very helpful in gathering and sorting the Arabic primary sources, and my graduate students, who read some of these texts and discussed them with me.

x

Acknowledgments

Over the years, I have presented parts of the study in conferences, both in Israel and abroad, and I thank the participants for their input and insights. An earlier version of chapter 3 was published as “Women as Expert Witnesses in Pre-Modern Islamic Courts,” in Law, Custom, and Statute in the Muslim World: Studies in Honor of Aharon Layish, ed. Ron Shaham (Leiden: Brill, 2007), 41–65. Reprinted by permission of Koninklijke Brill N.V. Parts of chapter 5 were published as “Revealing the Secrets of the Body: Medical Tests as Legal Evidence in Personal Status Disputes in Modern Egypt,” Medicine and Law 22 (2003): 131–54. I am grateful to the publishers for granting their permission to incorporate these materials into the book. Finally, I wish to thank Evelyn Katrak, for her superb editing. At the University of Chicago Press, I am grateful to my editor, David Pervin, for his support and guidance during the long review process; my manuscript editor, Sandra Hazel, for her final polishing of the text and for seeing the manuscript safely through the printing process; and the two anonymous readers, for their comments, which caused me to expand the theoretical and comparative perspectives of the text, thereby aiming to address a wider audience.

introduction

This book endeavors to shed light on the phenomenon of expert witnessing in Islamic legal systems,1 both past and present. In any legal system, evidence is extremely important, because it is the primary means for maintaining justice and promoting honesty within society. Rules of evidence form the tool by which courts attempt to determine the facts behind a disputed matter. A judge can apply the law to a particular case only after scrutinizing the facts based on the evidence that has been presented. Reliance on expert testimony is one method by which judges substantiate facts. Experts contribute to the factual basis on which the judge supports his conclusions by applying their personal knowledge and experience to a particular factual display.2 My study of the doctrine of Islamic expert witnessing and its practice, however, is not focused mainly on legal rules, compliance with them, or deviation from them. A rule-focused approach reduces the colorful character of social life and the dynamic logic it has for the social actors, and it may block the understanding of what is actually happening on the ground. What intrigues me in this topic is that it combines the cultural-social and the legal. One leg of the expert witness is planted in the field of his craft or science, the other in the legal field. On the one hand, he has to represent his trade or craft in a reliable way that will maintain the professional prestige of his field and his personal reputation; on the other, he has to apply his expertise to the language, the categories, and the procedures of the law—in other words, mediate his knowledge to the court. Otherwise, his expertise will not be useful for the judicial process. From this perspective, expert witnessing is one of the principal channels for

2

Introduction

importing “external” knowledge into the courtroom. This enables the court to keep abreast of societal practices and customs as well as the ever-expanding body of professional and scientific literature. The knowledge provided by experts is thus crucial to any court system that wishes to preserve its relevancy to the society in which it functions and that it is supposed to serve.

1 . s ta t e o f t h e a r t Until recent decades, the dominant paradigm for studying legal systems was “law as a set of rules,” associated mainly with the movements of legal formalism and the science of law and more recently with the work of H. L. A. Hart. This paradigm was heavily influenced by the positivist philosophy and by the centrality of reason in the European Enlightenment movement of the seventeenth and eighteenth centuries, both of which have shaped the Western conscience during the last three hundred years. The main characteristic of “law as a set of rules” is the sharp distinction it makes between the lawyer as a subject and the legal set of rules as an object. Legal rules force themselves on the conscience of those who view them in a uniform manner. As a result, it is possible to have in law an objectivity similar to that existing in the natural sciences. This objectivity emerges from a situation in which something external to human consciousness dictates the content of the lawyer’s conscience. Moreover, people who subscribe to law comprehend its contents in a similar way, which enables them to direct their behavior in a manner that will enable them to attain a high level of probability in fulfilling their legal goals. But the paradigm of “law as a set of rules” has lately been criticized for not paying any attention to the cultural identity of those who work the law, for neglecting to discuss the need—with the passage of time and the change of cultural and social circumstances—to update the meanings of legal rules and for reducing human experiences to a “thin” perception.3 A more recent alternative superparadigm, based on the ideas of various movements and scholars (mainly U.S. legal realism, law as literature, law as practical wisdom, and critical legal studies), views law as a cultural system. The main arguments in favor of this paradigm are that law, both statutory and that created and applied by courts, is a distinct cultural system by which legal actors such as judges and lawyers attach significance to the events brought before them. The contents of law create significance in the lives of the citizens. These contents regulate the entire field of human life in an intensive way, establish the consciousness of people, and structure the nature of their interpersonal relations and of their relations vis-à-vis the state.4

Introduction

3

Another paradigm that helps us understand how people, the customers of law, take an active role in shaping legal meanings, categories, and practice is the paradigm of “law as a process.” It contends that the ongoing creation of the legal order is an active process. Current legal arrangements are constantly subject to cancellation, reformulation, and change. Even the reconfirmation and continuity of legal orders should be perceived as a process. Social and cultural processes that take place outside the realm of the law drive people to use laws, abandon them, bend them, reinterpret them, or replace them. The continuous negotiation on the contents of the law takes place on two different levels. On the level of legislation, different social groups check the power of the state and affect the articulation and promulgation of laws. On the level of the public, judicial strategies are devised by litigants in order to make the most of the law, to circumvent it when it contradicts social customs, or, alternatively, to change it.5 During recent decades, the focus of research on Islamic law has shifted from the study of legal theory and doctrine to the study of the operation of law in everyday life, especially in the courts.6 This shift of focus represents the growing interest in law as a cultural phenomenon and a social process, rather than as a set of rules. A significant contribution in this direction has been the work of the legal anthropologist Lawrence Rosen on the qadi’s court in Sefrou during the 1960s and 1970s. On the basis of his observations, Rosen has updated Weber’s perception of Kadijustiz by arguing that the decision making of the qadi, or Islamic judge, is highly influenced by a calculus of the social consequences of his judgment. “For,” Rosen argues, “rather than being aimed simply at the invocation of state or religious power, rather than being devoted mainly to the creation of a logically consistent body of legal doctrine, the aim of the qadi is to put people back in the position of being able to negotiate their own permissible relationships without predetermining just what the outcome of those negotiations ought to be”; and: “[T]he qadi articulates the outer limits of the requisite and forbidden and, beyond that, seeks not the greater elaboration of governing precepts but, through the constantly individuated direction of the local, the lines of constancy and custom by means of which chaos may be avoided.”7 Historians of Islamic law who criticize Rosen’s work suggest that the work of the qadi involved both the invocation of underlying sociocultural norms and the application of legal norms and procedures; that qadis sought to ground their decisions in reliable knowledge and in the authority of Islamic legal doctrine; and that Muslim communities placed a high value on the reasoned justification of judicial decisions. Although qadis based their judgments on

4

Introduction

legal doctrine, they also took into consideration established court practice, local custom, and socioeconomic norms and conventions. The high value that Islam places on the notion of fairness, argue these historians, has helped to harmonize school doctrine with local custom and to integrate custom into the legal system. It was through the process of judicial reasoning that legal principles, norms, and concepts were adapted to local contexts.8 Be that as it may, there is not necessarily a contradiction between the qadi’s social focus and his applying the legal doctrine. On the one hand, studies conducted on Islamic courts have proved Rosen’s point that the first priority of qadis is to reconcile the litigants.9 On the other, even Rosen contends that, after the qadi realizes that the relationship between the parties cannot be repaired, he has to decide in favor of one party in accordance with the letter of the law, and that “instances of a qadi deciding a case in a way that is clearly contradictory of the law are, of course, unusual.”10 The insights of anthropologists on the role of experts in Islamic legal systems are highly informative and important because they demonstrate how law is embedded in the local culture and how law is a social process. Morocco is a good example of a country in which traditional models of expert testimony survived well into the twentieth century.11 The anthropologist Clifford Geertz views expert witnesses as a subgroup of what he calls “normative witnesses.” He argues that the notaries, or shuhu¯d udu¯l, were the first historical manifestation of this normative witnessing, and that, from this starting point, a huge network of judicial investigation was created which spread to all fields connected to law. Besides the notaries—who still function today, albeit only on a small scale (marriage and divorce)—Geertz mentions a large variety of “certified truth-bringers” (in Moroccan: urafa¯, sg. arı¯f ) who surround the Moroccan civil courts—for example, the amı¯n, an expert for each craft or commercial trade, and the ja¯rı¯, or irrigation expert. According to Geertz, in modern Morocco the litigants use these functionaries as arbitrators in the first stage of the judicial process, but if the arbitration fails, the same expert becomes the main witness in court and is treated as an authority for fact-finding.12 In addition, there are, to borrow Geertz’s phrase, “full-time investigatorreporters” (called khubara¯, sg. khabı¯r): experts in agriculture and in construction, and female experts in affairs relating to women (such as pregnancy and sexual abuse), who are often sent by civil judges to visit the scene of the event under dispute, to interview the people involved, and to report to the court the “real facts,” which often differ from the versions of the litigants.13 That the Moroccan courts push fact-finding to the level of local determination by the use of expert witnesses, Rosen argues, demonstrates that

Introduction

5

the courts institutionalize cultural trends existing in other social fields. The social-cultural postulate that all sorts of knowledge are worthwhile and that knowledgeable people should be regarded seriously is paralleled by the legal postulate that experts should be the ones who provide the court with local knowledge for complementing the testimonies of reliable witnesses.14 Rosen reports that the local court employs on a permanent basis two male experts (called muallim), and one female expert (arı¯fa) for issues relating to women. Male experts deal with disputed borders of land properties, conduct inquiries about the proper amounts of alimony for wives and children, and report on issues relating to construction and buildings, including the quality of construction materials. Using experts, Rosen argues, makes the qadi’s decision less arbitrary, more embedded in local practices, and more supported by the knowledge of individuals whose expertise is recognized by the local community. The experts, who enjoy the reputation of master craftsmen, import local knowledge into the realm of law.15 Although I fully agree with the perspectives of Geertz and Rosen on the role of expert witnessing, their studies lack detailed description and systematic analysis of this phenomenon. Returning to the work of Western legal historians, compared to other fields of Islamic law—such as family law and criminal law—the fields of judicial evidence and procedure are insufficiently researched. Tyan’s seminal study (1960), which remains the quintessential Western work on evidence and procedure in Islamic law, includes a chapter on the composition of the qadi’s court. Although Tyan briefly touches on the rules of testimony and court auxiliaries, he does not even mention expert witnesses.16 Haykel, who in 2002 edited a special volume on this very topic in the journal Islamic Law and Society, conceded the dearth of scholarship.17 The Islamic science of law, or fiqh, maintains a clear preference for oral testimony predicated on eye-witnessing (shaha¯da) over any other mode of evidence. Schacht, the leading twentieth-century scholar in the field, averred that fiqh prohibits judges from relying on circumstantial evidence.18 However, in a recent article, Johansen refuted this thesis by demonstrating that several jurists, foremost among them the Hanbalis Ibn Taymiyya (d. 1328) and his disciple Ibn Qayyim al-Jawziyya (d. 1351), did allow the qadi to use physical signs as probative indicators, especially in criminal matters relating to female fidelity and paternity. Furthermore, in the absence of a confession or direct evidence, they also accepted circumstantial evidence in civil cases.19 Among the various types of witnesses, “professional witnesses,” or “notaries” (shuhu¯d udu¯l or udul), have received the lion’s share of scholarly attention.20 Notaries were persons of unwavering integrity who served as the

6

Introduction

local qadis’ regular assistants. One of their principal tasks was to record oral testimonies, affidavits, and contracts. On account of the qadis’ absolute trust in their faithful notaries, they fully relied on the authenticity of these documents. As such, the notaries freed the qadis from the time-consuming task of themselves hearing all the testimonies. The notaries also, inter alia, conducted investigations and collected evidence outside the court on behalf of the qadi. In fact, Rosen reports that the notaries still constitute an important part of the Moroccan legal system.21 A second group of witnesses about which we have some information is shuhu¯d al-h.a¯l. According to Inalcik, “The study of [Ottoman] mah.kama records reveals that the judge summoned individuals with knowledge and expertise on specific matters to act as witnesses, or shuhud al-hal, in the court.”22 A more detailed explanation of the role of shuhu¯d al-h.a¯l in an Ottoman court is provided by Jennings, who wrote that shuhu¯d al-h.a¯l were respected people from the local community who attended the public court sessions and added their signature to the protocol or the judgment, thereby attesting to the fairness of the judicial process. It is not known how an individual became a part of this group, but it is clear that the group was large. In Ottoman Kayseri, their number in each court session ranged between four and seven, but their lineup changed from case to case. The shuhu¯d al-h.a¯l included ulama and notables, as well as other persons who had specific interests in a certain case. For example, when the defendant was a soldier, his regiment members were among shuhu¯d al-h.a¯l. Jennings clearly distinguishes between shuhu¯d al-h.a¯l and other court auxiliaries, such as court secretaries or experts. Shuhu¯d al-h.a¯l may have advised the qadi occasionally, but they were not in any way experts such as guild members (ehl-i hiref ).23 It seems that by the term ehl-i hiref Jennings meant various artisans and practitioners, who functioned randomly as expert witnesses in the courts. The latter is the group that stands at the center of my study. The group of witnesses that has received the least attention are the experts (ahl al-khibra, sg. khabı¯r; alternative common terms are “knowledgeable people,” ahl al-marifa, and “people of insight,” i.e., ahl al-naz.ar or ahl albas.ar)—that is, medical practitioners, midwives, merchants, tailors, weavers, builders, engineers, or farmers. They provided the courts with professional evaluations, each in his field of expertise. Neither the theoretical attitude of the fiqh toward expert testimony nor the historical practices of this type of testimony are sufficiently dealt with in research. For example, the entry “witness” (sha¯hid) in the second edition of the Encyclopedia of Islam does not mention expert witnesses at all except for a reference to the exceptional acceptability of female testimony on issues known only to women, such as the

Introduction

7

menstrual cycle, birth, and virginity.24 A recently published text,25 the most comprehensive collection of studies on qadis and court decisions, hardly mentions expert witnessing in its section “Evidence and Procedure.” This dearth of scholarship was noted by Brunschvig, who, approximately half a century ago, wrote: “In addition it would be relevant, on the subject of bayyina, to enquire into the position, in relation to it, of the expert evidence which may be required by the judge.”26

2. premodern expert witnessing This book comprises two parts, each containing three chapters. Each chapter is at once self-contained and connected to the other chapters in the book. The first part is dedicated to the premodern period, starting in the formative centuries (seventh to tenth CE) and ending with the Ottoman administrative and legal reforms (Tanz.ima¯t) conducted during the second half of the nineteenth century; the second part relates to the post-Tanz.ima¯t period. Before introducing the themes of the first part of the book, a methodological comment on chronology is due. By using the above-mentioned periodization, I am apparently committing two historiographical inaccuracies: the first is that, with respect to part 1, I imply a uniform and static picture of judicial practice across an extremely long period of time and vast geographical areas. Of course, I fully understand that across such a period and such areas, there was a variety of expert practices. I do not pretend to present thorough chronological or geographical coverage. Since this book is the first comprehensive study on expert witnessing, my aim is to portray the general framework and principles of the phenomenon. The practical examples I provide represent, at the most, the time and place from which they are taken. Other legal historians, working systematically on a certain period or place, are invited to complete and qualify my findings and conclusions. The second inaccuracy is the presentation of an Orientalist stance that links Middle Eastern modernity solely to Westernization, attributes Middle Eastern legal reforms to European colonial incentives, minimizes the role that local societies have played in the reform process, and presents legal reforms as a complete break with traditional legal practices. I do not claim that the majority of legal reforms carried out in the Middle East, starting from the second half of the nineteenth century, were initiated by the colonial powers or conducted according to a purely colonialist agenda. Neither do I claim that external forces imposed those reforms on passive Muslim societies. Local political and legal elites surely played an active role in initiating the reforms and

8

Introduction

shaping them according to local interests, and the reforms were part of the national agenda of these elites. I also believe that in the legal systems created subsequent to the Tanz.ima¯t one may discern dimensions of continuity with traditional Islamic legal systems. I do argue, however, that the extent of the break with the past was much larger than the dimension of continuity. The main catalyst of legal reforms has been the influence of European legal cultures. This influence took place in a colonialist context and not in the framework of interaction between two equally powerful cultures. Middle Eastern legal reforms were not carried out by the selective adoption of elements from European legal cultures. In spite of local administrative and legal elites having had some freedom of choice, this freedom was limited practically by the recognition of these elites that European legal culture was superior to Islamic fiqh. All these reasons justify the periodization I am using. As I hope to establish in this work, the most useful approach for analyzing expert witnessing methods in modern Middle Eastern states is to identify the specific European model (roughly, common law or civil law) that has been the most influential in each and every state. Returning to the first part of my book, it should be stated that expert witnessing is certainly not a modern phenomenon. Ancient legal systems utilized information that reflected the scientific-professional level of the time and was provided by various experts. For example, ancient Egyptian and Roman judges were assisted by medical experts, and this was customary also in ancient Greece and Sicily. In ancient Israel, reliance on expert physicians and slaughterers was practiced in the context of family law and ritual purity.27 There is no reason to believe that Islamic legal systems were any different in this respect, especially if we consider that expert witnesses are also recognized in Arab tribal laws.28 Chapter 1 focuses on the “inner” world of the law, that is, the discourse of jurists by which they create significance for social experiences. Specifically, the chapter, based on classical legal sources, follows the discourse of the ulama on the probative value of expert testimony. This discourse, having both legal and theological ramifications, is, I believe, a subject of intellectual interest in its own right, meaning that I do not intend it necessarily to serve as a basis for comparison with any judicial practice. The chapter opens by stating that fiqh recognizes two main channels for providing information (ikhba¯r): the first is transmission (riwa¯ya), the pure form of which is the reporting of prophetic traditions (ah.a¯dı¯th, sg. h.adı¯th); the second is testimony (shaha¯da), the pure form of which is court testimony. Muslim jurists place other means of providing information somewhere between these two poles. Jurists dispute whether expert opinion is a standard testimony or a report

Introduction

9

(a third option—that is, “judgment” [h.ukm], is also discussed with respect to specific experts). This question has ramifications for the qualifications required of an expert, his position in relation to the judge and the litigants, the procedures by which he delivers his opinion in court, the number of experts required for each legal case (two as in testimony or one as in report), and the probative value of his opinion. In this chapter I analyze the conflicting juristic opinions and the underlying reasoning of each opinion. To better understand the probative status of expert testimony, I compare its status with that of other types of information that fall between the categories of report and testimony, such as information on issues related to religious worship, and translation. Included in the discussion are female experts, such as midwives, who testify without corresponding male testimony. The juristic opinions regarding the required number of female experts range between four (according to the two-toone ratio of females to males applicable in standard testimony) and one. Chapters 2 and 3 offer a thick description of the judicial practice of expert testimony. The work of Van Staevel, who studied expert witnessing in fourteenth-century Tunis, is a fine example of such a practice: The use of expert testimony was common in the fourteenth-century Maliki legal system, especially in cases involving claims of damage in which it was necessary to distinguish among the possible causal factors those that were ancient (qadı¯m) and those that were recent (muh.dath). Experts served as indispensable auxiliaries of the qadi. To be decisive, their testimony had to satisfy two conditions: It must have been solicited expressly by the qadi himself, and it had to be consigned to writing. For this reason, upon completion of their assignment, the experts would draw up an affidavit and submit it to the qadi so that it became part of the court record. Relying on their powers of observation, experts served as the guarantors and mediators of a culture that was rooted in local conditions. Expert knowledge was produced by a hermeneutical process in which eye witnessing served as the basis for making an inference (istidla¯l) drawn from physical evidence or “traces” of the past. Experts used their powers of observation to identify, isolate and correctly interpret physical signs that might serve as “witnesses” in litigation. Of course, the final decision in the case remained in the hands of the qadi.29 My study of the practice of Islamic expert witnessing is informed by a comparative perspective. I believe that studying Islamic legal systems in isola-

10

Introduction

tion strengthens common perceptions of Islamic law as a unique legal system, incomparable with other systems—even a bizarre and unreasonable one. To establish that Islamic legal systems share many features with other legal systems, I use the comparative perspective when possible. According to Taylor, comparisons of legal institutions are useful only when these institutions are naturally or functionally comparable. He argues that most legal systems share a common source with respect to handling expert evidence. Moreover, the goals of the procedure and evidence rules of each system are identical. Both civil- and common-law institutions seek a trouble-free method of assisting the seeker after facts in those areas in which he encounters difficulties in reaching an informed conclusion. In this way, the first premise of comparative legal analysis—that sufficient similarity exists for there to be a valid and productive comparison—is satisfied.30 The legal system that lends itself most comfortably to comparisons with Islamic fiqh is Jewish halacha, because both are jurists’ laws, based on the interpretation of divine texts (Quran; Torah) and divinely inspired texts (hadith; the Talmud) through analogical tools. Both have confronted similar dilemmas in their engagement with modern positive scientism. According to Rosen, both Islamic law and Jewish law are variants of common-law systems, included in the common-law family. He proposes two criteria for the classification of legal systems: (1) the place that law occupies in the overall distribution of power within the society and polity at large, in the face of (2) fundamentally unstable and indeterminate cultural conceptualizations that must be taken into consideration by the legal system. Common-law systems address the first criterion by dispersing power to the local level through various mechanisms of indirect control (mainly juries and adversarial counsel, who present the facts), while still retaining ultimate power at the apex; and they address the second by letting local cultural conceptualizations and information predominate in the content of the law through indirectly administered mechanisms of incorporation. With respect to Islamic law, Rosen regards its characteristic propelling of fact-finding down to local experts as one of the main manifestations of its indirect political control. Also, in common-law systems experts assist in incorporating changing conceptualizations of culture, crafts, and trade directly, by the jury or the judge, unlike in civil-law systems, where such changing conceptualizations gain recognition mainly by way of state legislation.31 For the modern period, I use comparisons mainly with civil-law systems, especially the French, because this model has been the main influence in the Egyptian case. Returning to Rosen’s two criteria for the classification of le-

Introduction

11

gal systems, civil-law systems are predominantly a direct arm of the centralized state. Civil systems, rather than pushing matters down to the local level, tend to bring matters up to the state officials and then down from them. The central regime takes a firm hold on the fact-finding procedures. The experts operate as the direct hand of the court and therefore see themselves as being in the service of the state when called on to appear as expert witnesses. In general, experts in civil-law systems are more controlled than in commonlaw systems, in which they are much more independent of the state-centered judicial system. (For a more detailed discussion on the differences between common- and civil-law systems and the role of experts in each one of them, see chapter 4.) I also include comparisons with Anglo-American commonlaw systems and with the Israeli one. These comparisons enable me to demonstrate that the fiqh was as practical and reasonable in its treatment of expert witnessing as other contemporaneous legal systems. Differences between the modern Egyptian case and the French model are the result of informed political or legal considerations. Back to chapters 2 and 3, the discussion of judicial practice of expert testimony is based on treatises of applied fiqh ( furu¯), collections of legal formularies (shuru¯t.), responsa literature ( fata¯wı¯), and Ottoman court records (sijilla¯t). These sources contain discussions of situations in which expert testimonies of various sorts were needed in court. In chapter 2 I concentrate on two specific groups of male experts for whom the richness of information is larger than for other experts: (1) experts in the human body (and also on animal anatomy), such as physicians, slave dealers, and veterinarians; and (2) construction experts, such as builders and architects. Drawing on Rosen’s comparative paradigm of indirect political control of fact-finding in common-law systems versus direct control in civil-law ones, I ask: What were the qualifications required by the qadis of expert witnesses? How were they selected by the qadi? Did experts function as the advisers of the judge or as partisan witnesses? What procedural options did the court develop for using experts? How did judges tackle the problem of contradictory expert opinions? Another aim of this chapter is to shed light on the involvement of expert witnesses in legal matters relating to daily economic life, with special attention to legal disputes associated with the market production process and with other needs relating to economic activity, such as assessing the value of goods and properties, and the division of estates and partnerships. Fiqh, by prohibiting males from infringing on the privacy of unrelated females, has created for women a judicial role as expert witnesses in the inti-

12

Introduction

mate parts of the female body. Chapter 3 opens a window onto the world of knowledgeable women, especially midwives, who testified on such issues as the menstrual cycle, virginity, defects of the sex organs, pregnancy, birth, and the identity of newborn infants and their physical condition. Each type of physical inspection conducted by female experts is discussed separately. The reports provided to the courts by these women made it possible for qadis to issue judicial decisions on such issues as paternity, inheritance rights, and entitlement to financial support. Situating the activity of female experts in a broader social and cultural framework, I support the claim that these women represented the interests of the patriarchy. They supplied information and advice that were essential for maintaining the dominant male-oriented social and moral order. Female experts, then, were assigned a responsible role within the judicial system; this role, however, should be evaluated in the context of the dominant patriarchal social and cultural orders.

3. modern expert witnessing Two central elements of Western modern natural science distinguish it from medieval science: (1) scientific dictums must be based on facts derived from experiments; (2) scientific laws and factual dictums must be quantified and mathematically presented. The new capacities of modern science have brought about an “explosion of facts” in modern Western law that has led to a tremendous growth in the use of expert witnesses. The fields of knowledge whose mastery is expected from the experts are highly specific. The general culture of science has created in humankind growing expectations regarding the possibility of fact determination and the resultant power to settle judicial disputes.32 The transformations of European and U.S. expert witnessing in the modern period are due both to the scientific revolution and to the reform of the legal and judicial systems. In his excellent study on the development of expert witnessing in the British and U.S. legal systems between the eighteenth and twentieth centuries, Tal Golan writes that “science and law are mutually supporting belief systems and deeply connected social institutions heavily invested in each other.” Scientific and technological developments bring to the courts within days or weeks new forms of knowledge claims. These claims have challenged judicial practices and inspired the development of evidence rules.33 In the English common-law system of the early eighteenth century, the

Introduction

13

court controlled the criminal procedure and the defendant represented himself; the evidence became clear through a confrontation in court between the plaintiff, the defendant, and the witnesses, or through the judge, who himself questioned the litigants and the witnesses. By the end of the century, however, the lawyers reduced the status of the judge to that of a chairman, took on themselves the questioning of the witnesses, developed cross-examination, created for themselves the right to argue legal points, and thereby transformed the system of English common law into the current adversarial system. Already in the seventeenth century, the English courts were aware of the principal distinction between “ordinary” testimony, which is limited to issues of fact, and “expert” testimony, which may include interpretations and conclusions. Expert witnesses functioned as members of the jury or as court advisers. In both roles, their testimony was initiated and controlled by the court, which presupposed that the experts were impartial. Toward the end of the eighteenth century, when the adversarial ideology became dominant— that is, when the court became neutral and the litigants started to summon experts who represented them before the jury—a new space for the expert was needed.34 That the expert no longer fit into the new adversarial system, plus the development of modern science and technology, added considerable difficulties to the area of expert witnessing. For centuries, experts had been summoned to court to give their opinions about matters that were not common knowledge but were nonetheless concrete and tangible—such matters as norms of trade, the construction of ships or wagons, the meaning of Latin words, the interpretation of foreign laws, the nature of wounds, and the traits of witches. These expert opinions were regarded by judges as being based on empirical observations, readily traceable to the particular training and experience of the expert who expressed them.35 But from the late eighteenth century, the traditional expert—a person of expansive and proven experience—was joined by a new type of expert: a scientist or philosopher who based his opinion on his privileged theoretical knowledge of natural laws.36 Moreover, expert assistance, originating in the technological simplicity of an earlier age, became impractical and obsolete during the nineteenth century and especially the twentieth. In addition, the frequency with which expert testimony was resorted to increased tremendously, resulting in a growing awareness that the old procedures were in desperate need of improvement.37 In the nineteenth century, the functioning of the new type of expert witnessing in the common-law system suffered from considerable growing pains. One of the major difficulties was to establish whether the witness was an ex-

14 Introduction

pert in his field and whether his expertise related to a genuine area of science. If the answer to these two questions was positive, there was a need to establish whether his report concerning a particular court case was credible. The transformation of the expert from a jury member or court adviser to a partisan witness created an endless parade of experts, whose testimonies concerning scientific and technological innovations often contradicted one another—a phenomenon that has been called “the battle of the experts.” This new reality planted serious doubts regarding the experts’ integrity and the reliability of their science, in the eyes of both the lawyers and the general public. It led to a continuous decline in prestige of the scientific community and of the legal system, which was a source of anxiety for both.38 Over the course of the twentieth century, U.S. and English jurists devised some strategies for dealing with these “maladies.”39 The credibility of the traditional common-law expert was based on his good reputation among the people of his community. Experts were not required to support their opinions with technical explanations or by conducting demonstrations in the courtroom. By contrast, the modern expert’s credibility is subject to attack in court; he has to provide detailed explanations for his conclusions—and in England and the United States, at least in the early nineteenth century, he was expected to conduct laboratory experiments under conditions as similar as possible to those of the case under discussion. Presenting the findings of these experiments in the courtroom was the central part of the expert’s testimony.40 He was “no longer an impartial figure whose function was to explain the bearing of his specialized knowledge on the facts of the trial, but a quasi-advocate, a vehicle through which the barrister could establish the technical foundation of his case and expose the weaknesses of the other side’s case.”41 The expert witnessing patterns currently in operation in Anglo-American legal systems are therefore a product of a long, and at times painful, dialectic process by which science, its legal applications, and the legal system itself have all been shaped through a continuous dialogue and interaction. On the one hand, the legal system has assisted science by providing the courtroom as an arena in which scientists could present their innovations and thereby gain public exposure. Moreover, the feedback received by scientists from legal practitioners has encouraged them to improve themselves, to maintain their reliability in the eyes of the legal profession and of the public at large. On the other hand, legal systems have learned to accommodate modern science and, in return, have gained novel probative means that have resulted in a much more efficient and reliable system of justice.

Introduction

15

In European civil-law systems, the change from traditional to modern expert witnessing appears to have been less complicated than in the AngloAmerican system. As mentioned earlier, the dynamic of the common law centers on the drama of dispute resolution in the courtroom, which leads to a pronounced emphasis on problems of procedure and evidence. The civil law, by contrast, is much more occupied with abstract rules of law, with the result that issues of procedure and evidence are frequently ignored by Continental legal scholars.42 A more specific reason for the relative ease of the shift to modern expert witnessing in civil-law systems is that in Continental law the trying of facts has always been done by one or more professional judges, not a lay jury. Apparently, it is easier for an expert to convey his highly complicated scientific and technical expertise to a professional judge than to laypersons. Also, in Continental law the expert is an impartial, court-appointed consultant rather than a partisan witness, as in Anglo-American law. Continental law has thus been saved from “the battle of the experts,” which has been the main difficulty faced by Anglo-American court systems. Also, in Continental law the expert presents his report to the court in writing and is rarely summoned to court to defend his report orally. Even when the expert is required to appear in court, the examination of his opinion is minimal in scope relative to the examination in Anglo-American law. Finally, unlike Anglo-American law, Continental law does not have restrictive evidentiary rules—such as the prohibition on hearsay testimony—which have posed problems for expert testimony. Although the transfer from premodern to modern expert witnessing has been relatively smooth in Continental civil-law systems, the role of the expert has nevertheless been debated there, and expert testimonies have been a common source of judicial error and the cause of many reversals of judicial decisions. Judges have tended to overdelegate their responsibilities to experts and to accept the expert report blindly, without affording the litigants a fair chance to challenge its findings. Legislation and court precedents have both attempted to remedy some of these deficiencies.43 Chapter 4, comparable thematically with chapter 1, focuses on Egypt, which, starting in the last quarter of the nineteenth century, chose to reform its traditional legal system along the line of the civil-law model, especially the French one. As convincingly argued by Nathan Brown, this choice, reflecting a major shift in political culture from a decentralized state model to a centralized and penetrative one, was neither accidental nor directly imposed on Egypt by the colonial powers. Rather, adoption of the civil-law model was an informed strategic decision of the indigenous administrative and legal elites.

16

Introduction

The civil-law model served the aim of constructing a strong bureaucratic and centralized state much better than the common-law model, which tends to push power down to the local level. Egyptian Westernized elites viewed the civil-law model of the centralized state as more efficient in securing legal order and the rule of law, thereby contributing to a more rapid release from colonial control.44 Although one might expect that such a major change in legal culture and organization would face rejection as an alien imposition or as culturally inappropriate, this transformation was accepted relatively readily. The new generation of lawyers and judges, trained in the Western tradition, contributed to a situation in which “Egyptian courts have been true to their mission of mediating all sorts of social relationships on the basis of codified and legislated texts, and they have been aided by the active participation of large sections of the population.”45 An accompanying result of this historical change was that Egypt adopted the hierarchical and centralized system of expert witnessing typical of civil-law systems and authorized this system to serve the national court system in any field that required professional expertise. The chapter starts with the Majalla, the Tanz.ima¯t’s codification of Hanafi civil law, which is the last legal statement of the classical rules pertaining to expert witnesses (these references appear mainly in the chapters on sale and rent). By analyzing Egyptian legislation and Court of Cassation precedents on expert witnessing and comparing them to the European, U.S., and Israeli systems, I demonstrate that the European (especially the French) model of expert witnessing has been the main influence on the Egyptian system, but that the Egyptian one is more centralized than the French. Fiqh discourse on expert testimony played hardly any role in this reform process. I also show that the practical dilemmas of expert witnessing in Egypt today bear a striking resemblance to those of civil-law systems, especially that of the French. The main topic of chapters 5 and 6, which by their emphasis on judicial practice are thematically related to chapters 2 and 3, is the incorporation of evidentiary findings based on modern medicine into Egyptian family (and civil) law litigation. Before discussing the content of these chapters, I wish to comment on the broader issues that constitute their background, namely, the reception of modern science in the Muslim Middle East; the attitudes of traditional local elites, especially the ulama, toward Western science in general and in the context of family law in particular; and the strategies adopted by litigants and judges with respect to the use of modern medicine in the process of litigation. Let me start with the attitude of leading premodern Muslim intellectuals

Introduction

17

to science. Al-Ghazzali (d. 1111) and Ibn Khaldun (d. 1382) viewed the pursuit of knowledge as an activity that brings the student closer to his God. At the same time, however, they held that all forms of knowledge, including medicine, astronomy, arithmetic, geometry, and trigonometry, must be subordinate to, and at the service of, religious knowledge. The religious sciences were the only ones that were admitted to the curriculum of the madrasa, the Islamic institution of higher learning, because they served Islamic law and worship directly.46 This “instrumentalist and religiously oriented view of all secular and permitted knowledge,” to borrow the formulation of A. I. Sabra,47 characterized premodern Jewish scholars as well. Unlike Roman Catholic thinkers, Jewish “Sages of Blessed Memory” (H.azal) did not view the sciences as theologically true but as a means for juristic ruling. The sages distinguished between Torah studies, which were an exclusively Jewish field of expertise, and “wisdom” (h.okhma), which belonged to all of humanity. According to them, it was not for the law courts to decide between scientific schools or to determine scientific truths once and for all. Rather, the court had to determine how scientific issues were seen from the perspective of the legal system and, accordingly, to apply the law to actual lawsuits. To put it differently, the attitude of the sages toward science was formalistic, not metaphysical. What interested the man of science was the ontological knowledge of things—what the objective truth was in reality, notwithstanding the context; the sages, however, were more interested in the epistemological aspect of the legal process and its logic—how scientific knowledge could assist the judge in determining facts of nature and their meaning in the specific circumstances of a court case.48 In conclusion, neither Jewish law (halacha) nor Islamic fiqh had any inhibitions regarding the use of knowledge about nature in a judicial context. This brings me to the much-debated topic of Islam and science49 and to the question: Why did the glorious Islamic science of the tenth to twelfth centuries decline, and why did it fail to make the “great leap” to modern science, as argued by many?50 A thorough treatment of both these issues is beyond the scope of the present study, in which I confine myself to the more limited question of the role that science plays in legal systems. Moreover, most of my primary materials focus on medical science rather than on the natural sciences, such as astronomy and physics. This fact somehow simplifies the question, because premodern ulama knew medicine well and quite a number of them combined medical knowledge and practice with legal knowledge. A main difference between the relationship of Middle Eastern societies to modern science as compared with that of Western ones is that in Europe

18

Introduction

and the United States, most inventions have not been sudden, isolated events but the result of a series of trials and errors, with each element connected to a previous one. By contrast, science in non-Western societies was usually a product of the diffusion or transfer of Western science, without ignoring the importance of indigenous scientific initiatives.51 Because most technologies were imported wholesale, turnkey from the West, shipped integrally, and then installed in the region, often complete with expert technicians, they did not form part of an organic development, let alone a chain reaction.52 The history of modern science in Middle Eastern societies has thus to be understood as an encounter between their cultures and a Western cultural phenomenon. This encounter, the characteristics of which may have varied according to local circumstances, affected both science and the adopting culture. The arrival of Western science was usually accompanied by ideologies of scientism and positivism, which were presented both as an antithesis to and as a substitute for traditional culture and worldviews, including religion. As a result, traditional leaders in non-Western societies have reacted with hostility to Western science. However, because they saw European technology as evidence of the supremacy and control of the West, they were eager to domesticate it to prevent gradual submission to the West. This domestication, however, has been carried out without necessarily adopting the ethos of scientism and positivism that formed the basis of European science. Thus, for example, it was possible to reject the scientific hypothesis of evolution and, at the same time, to adopt modern technologies of communication.53 Although resistance of the ulama to the adoption of Western technologies was common, especially among lower-class ulama, who were not as devoted to the reform policies of the state as their senior counterparts, outright opposition, even to specific technological innovations, was rare; skepticism and conservatism were more common. On the whole, no major successful technology was barred or effectively resisted, and maybe the possibility of doing so was in any case an illusion.54 Generally speaking, the ulama resisted new technologies (such as the telegraph, radio, television, the printing press, and autopsies) on religious, moral, socioeconomic, and political grounds, which often overlap. From the religious perspective, the ulama often perceived new technologies as prohibited innovations (bida, sg. bida), as a desecration of God’s name and language, as interfering in God’s will, as endangering belief by encouraging the spread of heterodoxy, and, finally, as an abhorred imitation of the infidels by Muslims, who thereby could become infidels themselves. Morally, the ulama feared undesirable corrupting effects brought about by the reforms, and potential

Introduction

19

fatal damage to the spiritual infrastructure of the Muslim community. They were also motivated by anti-Western feelings. Moreover, the ulama (and often the rulers as well) feared that upsetting the old order, on which their socioeconomic and political control rested, would damage beyond repair their uncontested political authority, along with their monopoly and exclusiveness as spiritual and political leaders. In particular, they dreaded the idea of their being replaced in the bureaucracy and in the education system by graduates of modern education.55 In western Europe and the United States, when modern science started to develop in the late eighteenth century, the Christian church had already conceded to the scientists its pretension to make authoritative claims about nature. Moreover, religion had already been divorced from state institutions in general and from the legal system in particular. This separation between religion and state prevented, or at least minimized, the clash between traditional knowledge about nature (rooted in divine texts) and modern scientific knowledge. By contrast, religious law being still influential in Middle Eastern states today, at least in the field of family law, has contributed to a clash between sanctified knowledge and scientific knowledge. For example, according to the Sunni schools of law, the maximum pregnancy periods are much longer than the biological periods. According to classical Jewish law, a child’s blood group is determined solely by the mother and not by both parents. Such contradictions, added to the revolutionary change in the quality of science, have forced modern Muslim and Jewish jurists to reconsider the relationship between religious law and science, particularly in the field of medicine, which increasingly relies on branches of modern science and has ceased to be a field of practical wisdom.56 In Rosen’s words, “Just as in the West, where new techniques for fertility, life support, and transsexual surgery pose vexing questions about law and common sense, so too in Muslim countries the legal approaches to foreign medical concepts shed light on the permeability of the border between law and society.”57 Thus, the field of family law has been particularly resistant to the integration of new technologies. While Middle Eastern nation-states secularized the majority of legal fields along Western lines, family law (including inheritance and waqf ) have remained in the orbit of the sharia, albeit in a codified form, resulting in a hybrid law, something between the sharia and Western law. From the point of view of the nascent nation-states, since family law was the most developed field of the sharia, one in which the ulama had always enjoyed a monopoly, it was better to reform other legal fields, those in which competition from the ulama was not so severe. According to reformist ideol-

20

Introduction

ogy, family law belonged to the private sphere more than to the public one; its political significance was therefore lower and the state could largely leave it to the control of the ulama without risking too much of its power. Moreover, in this way the state paid lip service to the sharia, thereby placating the ulama and avoiding a direct conflict with them. The secularization of most of the fields of law has had the effect of reinforcing the religious tone of those few branches that remained in the domain of the sharia. Thus, family law has become the “last bastion” of the ulama and, consequently, extremely sensitive and resistant to reform. With the change in the balance of power between state and religion during the 1970s, following the decline in power of the modernist and national ideologies, any attempt to bring about further family-law reform has created polarized and highly emotional political conflicts. Public debates on family law reform are still conducted almost entirely within an Islamic framework and have a markedly political aspect; the state often retreats from planned reforms out of fear of a religious backlash or in the hope of gaining political legitimacy and support.58 For the traditionalists, ulama and radical Islamists alike, family law is a sacred law and the foundation of the most important social institution, the family. They therefore regard any desertion of sharı¯ family law as prejudicial to the divine ingredients of the law as well as a threat to the Islamic patriarchal order. Within the peculiar duality in which the modern and the patriarchal orders coexist, often in a contradictory way, the sharia occupies a special place: it symbolizes the golden age of Islam; it vindicates a present in which Islamic societies are subordinate to the West; it serves as a buffer against the rapid erosion of traditional ways of life and against the aggressive penetration of Western values; it serves as a shelter in a world characterized by uncertainty and chronic economic crisis; it is an innate answer to the crisis of identity; and, above all, it is an ideology whose role is to justify unequal divisions of power, gender relations being only one example.59 The patriarchal ideology, embedded in family law, is not free from a lack of uniformity and inner contradictions, which are manipulated by individuals to renegotiate their familial and conjugal relationships through the courts. Such negotiations are conducted without the litigants contesting the sanctity of the sharia or the theoretical eternality of its rules. The litigants do not necessarily adhere to the sharı¯ model of family relations, yet they undoubtedly conduct their marital disputes armed with the sharı¯ discourse. The courts become tools for changing the same rules they are supposed to apply. Thus, the courts carry the challenging burden of maintaining the shari model and at the same

Introduction

21

time adapting it to the ever-changing social customs, including changes in human knowledge and the introduction of new scientific technologies.60 The interaction between modern medical knowledge, ulama, family law, qadis, and litigants brings me back to chapters 5 and 6. During the nineteenth century, the Egyptian centralist state, with the assistance of European professionals, built a modern medical establishment. New medical and nursing schools trained their students to perform surgical operations, including autopsies, and to prepare medical testimonies for the courts. Pathology was introduced to the newly established civil-law system, and, consequently, medical testimonies became one of the main probative means in murder, assault, and rape cases. The progress of medical knowledge and techniques, as well as the development of modern medical institutions and procedures, has changed the attitude of litigants and judges toward medical aspects of the judicial process. Chapters 5 and 6 demonstrate how law can considerably change without altering its traditional categories and concepts, such as prejudice or mortal sickness; the latter remain intact, but embrace new content.61 The first part of chapter 5 is based on twentieth-century sharia and civil court decisions. It deals with modern medical inspections that serve as evidence in family law cases. I ask why certain kinds of medical inspections are acceptable to Egyptian judges, who are simultaneously reluctant to accept other types of inspections. On the one hand, the judges welcome inspections whose aim is to determine a person’s age or to diagnose his physical or mental problems. On the other, they are reluctant, in particular contexts, to order virginity and pregnancy tests, which have the potential of publicizing cases of moral laxity within Egyptian society. The second part of chapter 5 focuses on the legal construct of mortal illness (marad. al-mawt). Seeking to protect the rights of heirs and creditors, the fiqh—as well as the laws of modern Muslim states—ignores or restricts the legal consequences of transactions (such as divorcing one’s wife, drawing up a last will and testament, or gifting one’s property) performed by a mortally sick Muslim. The determination that a person was on his deathbed when he concluded such a transaction needs to be made subsequent to his death—that is, when his divorced spouse or legal heirs contest the validity of the transactions that he performed prior to his death. This determination involves two main criteria: the mortal character of the malady, based on medical knowledge, and the fact that it prevented the sick male from maintaining his daily routine outof-doors or the sick female from performing her domestic chores.

22

Introduction

Drawing on my previous discussion of law as a process and on litigant strategies, a close study of twentieth-century Egyptian court decisions reveals a growing tendency among litigants to support their claims concerning mortal sickness with medical documentation (for example, protocols of medical tests, hospitalization reports, expert medical opinions, and death certificates). One of my main conclusions is that the civil courts have adapted more easily to the new probative means offered by modern medicine than have the sharia courts, which have continued to regard the inability of a sick person to maintain his daily routine as the main criterion for mortal sickness. Chapter 6, by examining the establishment of paternity in Egypt, as well as in other Muslim countries, demonstrates the explosive potential of any initiative to reform the traditional concepts of family law. The development of scientific tools for determining biological paternity (in chronological order: blood-group tests, HLA-typing tests, and DNA tests) has created a potential for questioning the relevance of fiqh criteria for the establishment of paternity—for example, the presumption that the child is fathered by the mother’s legal husband. A close analysis of a recent Egyptian court case (Hinnawi v. Fishawi) and of the public debate surrounding it exposes the arguments and interests of all participants in that debate. Again, the analysis of the case is conducted from a comparative perspective, here with reference to the Israeli courts; but I also integrate discussion of European and U.S. legislation and court practice. My main conclusion is that the reluctance of Muslim judges to rely on scientific medical evidence in the context of paternity does not emerge from their doubts about the reliability of scientific means but rather from the moral, religious, socioeconomic, and political considerations mentioned earlier, among which their defense of traditional moral and social worldviews.

4 . s o u rc e s , m e t h o d o l o g i ca l co n s i d e r at i o n s , a n d t e c h n i ca l c l a r i f i cat i o n s This study of legal history is based on various genres of legal literature: fiqh works, collections of legal opinions, works of legal formularies (shuru¯t.), and court records and decisions. The usefulness of legal sources for writing sociolegal history has been a point of dispute among Western scholars. Those who distinguish between legal theory and legal practice imply that the law as it is defined in law books is not a good source for studying law “in the field.” This criticism has been leveled more toward fiqh works (both legal theory, us.u¯l, and applied law, furu¯) and less so toward court records. It has been

Introduction

23

argued—for example, by Coulson—that fiqh works in particular are in many cases the result of “intellectual drills” developed by the ulama. A juristic discussion of the permissibility of riding a drunken camel indeed appears to be a hypothetical case which is remote from “real life.”62 It seems, however, that these examples are exceptional and that the majority of furu¯ works represent the deep involvement of their authors with contemporary realities. True, many writers copied juristic discussions from their predecessors, especially when social and economic conditions remained stable and no need for change was felt; but when change did take place, furu¯ works, after a certain delay, reflected it.63 Collections of legal opinions, fata¯wı¯, have also been suspected of being remote from practical contexts. Most legal historians currently hold that requests for legal opinions, as well as the responses themselves, are deeply entrenched in concrete social realities. The work of Powers in particular, based on the fata¯wı¯ collection of the fifteenth-century Maghribi al-Wansharisi, has demonstrated that in many cases requests for legal opinions were initiated by litigants and qadis in the context of pending court cases.64 Works of legal formularies were certainly close to judicial practice. These manuals, written to help qadis in their daily routine of formulating documents, had to relate to the types of judicial disputes and contracts that occupied the courts. Evidence from Ottoman court records establishes that qadis often used manuals of legal formularies.65 Court records, especially Ottoman ones, have been extensively used by historians as an indispensable source for the social and economic history of the empire. As a result of justified scholarly criticism by Dror Zeevi and others, historians no longer consider these records a faithful mirror of the societies and cultures in which they were written. Because court records, like any other literary genre, have their own conventions, the researcher must use them cautiously. Zeevi has suggested a new agenda for the research of these records, centering on the source itself and reaching out to the society and culture beyond the court’s walls. One suggestion has been to study sharia courts as institutions, focusing, inter alia, on “internal court functionaries,” such as the scribe and the muh.d.ir (an officer responsible for court procedure and bringing litigants and defendants to court), and “external officers,” such as the muh.tasib, the notaries, and shuhu¯d al-h.a¯l.66 The present work, by studying the practice of expert witnessing, forms part of this scholarly agenda. As noted earlier, the current state of the art does not permit the writing of a comprehensive historical narrative of expert witnessing in Islamic legal systems. Patterns of expert testimony have certainly varied across time and

24

Introduction

space. Currently, fiqh works and a number of fata¯wı¯ collections are more readily available to scholars, due to the appearance of CDs and Web sites that include thousands of volumes of scanned texts. This is not the situation with court records. To cover all the variants or even to cover a specific geographical area across time, a thorough study of all the available court records is needed. This has not been done so far, and it is certainly beyond the capacity of an individual scholar. In gathering materials on Ottoman court practice, I had to rely on secondary sources—in this case, histories written on the basis of court records. As a result, I am unable to present a continuous historical narrative or to contextualize many of the scattered examples I traced. From this perspective, my book can serve only as a general and basic study, opening the way for further studies that will fill the historical and geographical gaps. In conclusion, this study is part of the current scholarly agenda, seeking to study the laws of Islamic societies as practiced in everyday life, especially in the courts. It represents the growing interest of scholars in law as a cultural phenomenon and a social process. The uniqueness of this study is in opening a window for studying the operation of the courts from a fresh angle, that of their relation to external knowledge, highlighting aspects of evidentiary and procedural law in action, which so far have not attracted a lot of attention from scholars. By relating to legal doctrine, judicial practice, and public discourse through the use of a large variety of sources, legal and historical alike, I seek to offer with this study a detailed description of the phenomenon of expert witnessing in Islamic legal systems. This phenomenon is studied against its historical and cultural background, thereby revealing current ruptures in Islamic societies emanating from conflicts about cultural orientation and struggles for political power. Finally, through the use of a comparative perspective, I have attempted to draw Islamic law out of its historical isolation and demonstrate the similarity between its concerns and those of other legal systems.

a n ot e o n t r a n s l i t e r at i o n Throughout the book I use the IJMES system of transliteration. Those readers interested in the full transliteration of names and book titles will find it in the references section and the index.

chapter one

Between a Witness, a Reporter, and a Judge: The Probative Status of the Expert 1. introduction The purpose of this chapter is to analyze the juristic discourse with regard to the probative value of expert testimony. Due to its casuistic nature, Islamic fiqh does not have a general theory of evidence in general and of expert witnessing in particular.1 There are, however, discussions on the rules of witnessing and of reporting in treaties of jurisprudence as well as in treaties of applied law. These rules serve as the general framework for treating cases of expert witnessing. Thus, questions relating to the legal status of the expert, to the probative meaning of his testimony, and to the procedures informing his work and his appearance in court may be answered only by trying to reconstruct the general idea of expert witnessing from the many actual cases discussed in the literature. Before I delve into these questions, I shall begin with a general discussion. The unique knowledge and experience of craftsmen, each in their field of expertise, rendered their testimony essential for qadis, who summoned them to their court in cases of need. The general reasoning behind this procedure is demonstrated by the maxim “With respect to each craft, seek the assistance of the best practitioners of the same craft (istaı¯nu¯ ala¯ kull s.ana bi-s.a¯lih. ahliha¯).” This saying is related to a tradition according to which, when the Companion Sad (b. Abi Waqqas) got sick, the Prophet came to treat him. After examining Sad, the Prophet realized that someone more knowledgeable than he was needed, and therefore summoned al-Harith b. Kalada (d. circa 670) from the tribe of Thaqif, who was renowned as a physician (rajul yut.abbib).2 What made the knowledge of experts indispensable for qadis was that

28

Chapter One

experts—on the basis of indicators (adilla, sg. dalı¯l) known only to them, due to their professional experience—could testify as to the existence of things that were hidden from the layman’s eye.3 It is significant that the legal literature refers to experts as having this special quality of “seeing” things related to their area of expertise—for example, by using the phrase “someone who has insight in this field” (man lahu al-bas.ar [or: al-naz.ar] fı¯ dha¯lika al-ba¯b). The Hanbali jurist Ibn Taymiyya (d. 1328) discusses the legality of the sale of a product that cannot be seen (is hidden) at the time at which the sale is contracted—for example, the sale of a carrot that is still in the field and, being a root, cannot be seen. According to the general rules of the fiqh, such a sale contract is void because the object of sale should be “known” (malu¯m). If, however, agricultural experts indicate that the plant is indeed a carrot, Ibn Taymiyya validates this contract and explains that the experts possess knowledge that jurists do not, in spite of the latter being more knowledgeable in religious matters.4 In al-Mabs.u¯t., the Hanafi jurist Sarakhsi (d. 1097) justifies the recommendation to judges to consult expert witnesses, on the grounds of the general Quranic dictum (16:43; 21:7): “Ask those who know [ahl al-dhikr] if you do not know.”5 The phrase ahl al-dhikr is usually understood by Quranic commentators to mean not expert witnesses but rather scholars among “the People of the Book” (ahl al-kita¯b), to whom Muhammad referred his opponents for confirmation that the messengers (of God) who preceded Muhammad had been human beings and not angels.6 The late Hanafi Salih b. Muhammad al-Umari (known as al-Fullani; d. 1803), the author of Iqaz Himam Uli al-Absar, uses the hadith literature to support his interpretation of the Quranic term ahl al-dhikr as meaning “experts.” According to a tradition, one of the Muslim warriors, after being hit on the head by a stone, asked his comrades-in-arms for permission to use sand instead of water for the ablution before prayer. The permission was denied; he washed his head with water and then died. When notified about this, the Prophet was angry and said that if the warriors were ignorant about that medical point, they should have consulted experts. Al-Umari concludes that, since the Prophet and his successors used to consult experts, the sharia instructs rulers and judges to consult such experts as the physiognomist (qa¯if ) and the assessor (kha¯ris.).7 It is difficult to determine exactly when the relationship between the Quranic term ahl al-dhikr and expert witnesses was established, but its appearance in Sarakhsi’s work attests that this linkage was recognized in the eleventh century. Modern legal writers find support for the legitimacy of expert testimony

Between a Witness, A Reporter, and a Judge

29

in other revealed texts. The Egyptian Ajila mentions Q. 35:14: “None can inform you like Him” (wa-la yunabbiuka mithl khabı¯r).8 The term khabı¯r, which appears in other chapters of the Quran, is usually interpreted as Allah himself 9 or, alternatively, as ahl al-kita¯b, to whom the Quran refers for confirmation those Arabs who doubted that Allah had created the universe in six days.10 Ajila also cites the prophetic hadith: “The adviser is reliable” (al-mustasha¯r mutaman).11 The Moroccan Kamal al-Wadghiri finds a precedent for expert testimony in Q. 12:24–26, which tells the story of Yusuf and his Egyptian master’s wife, who tried to seduce him. When Yusuf tried to leave her house, the woman grabbed his garment, trying to hold him, and the garment was torn. Wishing to take revenge on Yusuf, the woman told her husband, who was sitting outside the house, that Yusuf had tried to assault her. Yusuf denied the allegation. Then ‘‘a witness from among her relatives testified [wa-shahida sha¯hid min ahliha¯] [by saying]: if the front part of his garment is torn, then she is right and he is a liar, and if the back part of his garment is torn, then she lied and he is a truth-teller.” Most classical Quran exegetes hold that the witness, who was sitting with the woman’s husband outside the house and therefore could not have seen the event, was a knowledgeable (h.akı¯m) person whom the pharaoh used to consult. The Quran exegete Fakhr al-Din al-Razi (d. 1209) cites a saying of an earlier exegete, the Mutazili al-Jubbai (d. 916 in Basra), to the effect that a conclusion drawn from the way the garment was ripped is weak, presumptive evidence (al-istidla¯l bi-tamzı¯q al-qamı¯s. min qubul wa-min dubur dalil z.annı¯ d.aı¯f ), not certain evidence (h.ujja qa¯t.ia).12 As noted earlier, distinguished persons from the first generations of Muslims, including the Prophet himself, are presented as either demonstrating personal qualities of expertise or using experts. According to one tradition, two brothers who contested the ownership of a fence separating their properties asked the Prophet to judge between them. The Prophet commissioned Hudhayfa b. al-Yaman to settle the case. After visiting the disputed site, Hudhayfa judged in favor of the litigant whose property was adjacent to the knots that had been made in the strings that supported the fence ( fa-qad.a¯ bil -h.iz.a¯r li-man wajada maa¯qid al-qumut. talı¯hi). When Hudhayfa informed the Prophet of the way he had handled the case, the Prophet praised him.13 Another tradition concerns a Medinese woman who fell in love with a man who rejected her wooing. Wishing to take revenge on him, she spilled the white of an egg on her dress and thighs and then complained to the caliph Umar b. alKhattab (r. 634–44) that the man had raped her. As Umar was about to pass judgment against the man, Ali b. Abi Talib intervened. After pouring boiling

30

Chapter One

water on the liquid that, according to the plaintiff, was the defendant’s semen, he identified the real source of the liquid and urged the plaintiff to confess, which she eventually did.14 According to another tradition, the same caliph, Umar, sent Uthman b. Hanif to the al-Sawwad area to conduct a cadastral survey (mash.) for purposes of tax levying. In another case, the Umayyad caliph Umar b. Abd alAziz (r. 717–20) sent currency experts to tax the non-Muslim merchants who entered the territories of the Umayyad state.15 The jurists debate the probative status of expert witnessing. The expert’s deliverance of his opinion in court is sometimes referred to by the term testimony (shaha¯da), sometimes as report (khabar)—hence the term mukhbir for an expert (pl. mukhbiru¯n or ahl al-khibra; also, “experts of a certain craft,” ahl al-khibra min ahl al-s.ana). An example of the use of both terms in one statement is found in the late Hanafi Ibn Abidin (d. 1836). Discussing the case of two assessors summoned to evaluate the decrease in the values of goods that have been damaged, he says that they “report [to the qadi] by using the formula of testimony” (yukhbira¯n bi-lafz. al-shaha¯da).16 Two conclusions may be drawn from Ibn Abidin’s statement: (1) the actions of reporting and witnessing are closely linked and (2) the expert is considered a witness due to his having to use the shaha¯da formula. As an example of treating the expert as a reporter, consider the following scenario: Shortly after taking possession of a slave, the buyer discovers a physical defect in the slave. The buyer comes to court and argues that the defect already existed when the slave was in the seller’s ownership and that the latter concealed from him any information about the defect at the time at which the sale contract was concluded. The defendant-seller argues that the defect did not occur until the slave was already in the possession of the buyer, and the latter therefore has no ground to demand compensation or to annul the contract and get his money back. The Andalusian Maliki jurist Tulaytuli (d. 1067) writes that if the qadi decides to send the same slave to be inspected by trusted experts who subsequently testify about the “age” of the defects, the qadi is not required to notify the defendant (this notification is called idha¯r),17 because the experts advise the qadi by way of a report and not by way of a testimony (alama¯hu ala¯ t.arı¯q al-ikhba¯r la¯ ala¯ t.arı¯q al-shaha¯da).18 To understand this debate fully, we must pay attention to the differences between the terms shaha¯da and khabar (and riwa¯ya). According to the jurists, there is no essential difference between transmission (riwa¯ya) and testimony (shaha¯da). Both are modes of informing (ikhba¯r), as stated by the Egyptian Maliki jurist al-Qarafi (d. 1285): “testimony and

Between a Witness, A Reporter, and a Judge

31

transmission are both reports” (al-shaha¯da wal-riwa¯ya khabara¯n). Fiqh, however, makes a technical distinction between the field of testimonies (ba¯b al-shahada¯t) and the field of reports (ba¯b al-ikhba¯r).19 Qarafi, for example, dedicates the first chapter of his al-Furu¯q to this distinction. The complexity of this topic is attested by his acknowledgment, at the beginning of that chapter, that it took him eight years of study to identify the criteria by which a jurist can categorize cases of reporting (especially unprecedented ones) as either testimony or transmission. Let us start by comparing the purest form of shaha¯da—a court testimony20— and the purest form of riwa¯ya—the transmission of hadith.21 Later I will apply this comparison to expert opinion. First, testimony is specific (kha¯s.s.) because it is in favor of a certain person or against him. Since testimony usually leads to a court decision, it affects only the litigants and those related to them. Also, since testimony brings about a benefit to one party and a loss to the other, it is suspected that a witness who hates someone will provide false testimony in order to harm him. On the contrary, the content of a hadith report (riwa¯ya) is general (a¯mm) and usually applies equally to the reporter and to the recipients of the report. Report does not involve personal loss or gain and is therefore not associated with hostile feelings. Both a witness and a transmitter must be upright (adl)22 persons who are not subject to forgetfulness or confusion. Yet the above-mentioned differences between testimony and transmission led the jurists to prescribe different probative requirements for each. Because of the potential hostility associated with testimony, the jurists insisted that the number of witnesses be two.23 The testimony of the second witness, if it corroborates that of the first, makes the information contained in the testimony more probable (or, in Sarakhsi’s words, it increases the “confidence of the heart”).24 Also, a witness should not be related to either of the litigants, and there may be no hostility between him and the litigants. By contrast, in riwa¯ya there is no need to add a second transmitter to the first one, because it is implausible that the first is hostile to the entire Muslim community. Several transmitters in each generation and multiple channels of transmission, however, are better than one transmitter in each generation because they increase the probability that a certain hadith is authentic.25 The general rule is that the witness must be a free Muslim male.26 The requirement of masculinity in testimony is justified on two grounds. (1) The witness achieves a measure of control of and superiority to the person against whom he testifies. The superiority of the witness to the person against whom he testifies humiliates the latter, especially if he is a male and the witness is a

32

Chapter One

female. To prevent this humiliation, the testimony of women is avoided on principle. (2) Females lack reason and morals (al-nisa¯ na¯qis.a¯t aql wa-dı¯n), and their forgetfulness and tendency to err may therefore lead to the perversion of justice, a potential harm that must be prevented. By contrast, a female is accepted as a transmitter of reports. How is it that a female’s lack of reason and tendency to make mistakes do not prevent her being accepted as a transmitter? The answer is that since the content of hadith has general applicability, many people are interested in it and there are many transmitters. If a female transmitter is mistaken, her mistake will certainly be discovered in the course of time. Court testimony, by contrast, has a short life, and therefore the probability of discovering the mistake of a female witness is low. The requirement that the witness be a free person is designed to prevent the humiliation caused to a free person by a slave who might testify against him. Also, servitude creates negative feelings in slaves that may lead them to give false testimony. By contrast, the reporter of hadith may be a slave, because the content of the hadith binds him as well as his listeners. Another difference between the two is that a witness must not be blind, because he usually testifies about events he has seen, while the transmitter may be blind, because he receives the information by way of hearing. Finally, the witness has to use the verbal formulas of testimony when he speaks in court, whereas the reporter of hadith does not. Having noted the differences between “pure testimony” and “pure transmission,” let us return to the experts. Ibn Qayyim al-Jawziyya claims that regular witnesses are unable to discern certain physical and natural signs and that only experts, such as the assessors (ahl al-khars.) and the dividers of estates (qa¯simu¯n), can discern such signs, due to their special sensory abilities. The existence of such signs, he says, may be proved on the basis of the report of one or two experts (qawl al-wa¯h.id wal-ithnayn). Supporting his claim that certain natural phenomena that seem clearly evident at first sight are noticed only by people endowed with unique sensory abilities, Ibn Qayyim cites the following example. A group of Muslims have gathered to watch the appearance of a new moon, but only one or two persons in the crowd notice the new moon and report it to the qadi. On the basis of this report, the qadi rules on the beginning of the month, notwithstanding the fact that most of the people in the crowd had not noticed the appearance of the moon.27 Two elements in Ibn Qayyim’s discussion deserve attention. (1) He is not decisive about the required number of experts. He implies that since experts must have unique qualities not possessed by laymen, it is impossible to require

Between a Witness, A Reporter, and a Judge

33

two experts for each case (which is the number required in testimony), and a report by one expert must be accepted as sufficient evidence. (2) He draws an analogy between an expert’s report or opinion and a report on issues related to religious ritual and worship, such as the appearance of a new moon. Another jurist, the Maliki Qarafi, makes a similar connection between expert testimony and a report on issues related to religious ritual and worship. He argues that, in addition to pure transmission and pure testimony, there is a third type of report (khabar) that has elements of both testimony and transmission (murakkab min al-shaha¯da wal-riwa¯ya). He discusses ten cases of the third type: five are expert testimonies or opinions (the physiognomist, translator, assessor, divider, and physician), and three are worship-related reports (on the new moon of Ramadan, on the number of prayers, and on the impurity of water).28 The analogy mentioned by both Qarafi and Ibn Qayyim between the testimony of an expert and a report on worship-related issues leads me to the next section of this chapter, in which I discuss the status of a reporter on worship-related issues, as well as other types of witnesses whose reports have characteristics of both shaha¯da and riwa¯ya. This discussion provides further insights about the probative status of the expert, to whom I will return later.

2 . r e p o r t a n d va r i o u s t y p e s o f “ r e p o r t e r s ” The parallel drawn by Ibn Qayyim between the expert’s report and a report on the appearance of a new moon exemplifies reports on worship-related issues (khabar dı¯nı¯; akhba¯r al-diya¯na¯t). There are three types of such reports. (1) In reports relating to the impurity of water, food, or clothing, the permissibility or prohibition of food, and the arrival of prayer time, contrary to shaha¯da, one upright reporter is sufficient, females are equal to males, and blind persons are equal to sighted. An infidel, a sinner, a lunatic, and an undiscriminating (ghayr mumayyiz) minor are disqualified from reporting. (2) In reports relating to the direction of prayer (qibla), the same rules apply. The Shafiis and some Hanbalis accept a report from a sinner. (3) The third type of report relates to the beginning of the Ramadan fast.29 A judicial ruling on the beginning of Ramadan, based on a testimony about the appearance of the new moon, is a condition for the beginning of the fast. The dispute among the schools of law concerning the minimum number of witnesses required to testify about the new moon is reflected in the existence of apparently contradictory hadiths. According to one tradition, transmitted

34

Chapter One

by Abd al-Rahman b. Zayd b. al-Khattab, the Prophet ordered that the fast start and finish on the basis of the testimonies of two witnesses. According to a second tradition, transmitted by Ibn Abbas, the Prophet ordered that the fast be launched on the basis of the testimony of one Bedouin. A third tradition, transmitted by the Tabii Ribi b. Hirash (d. 719 in Kufa), relates that the Prophet declared that the end of the Ramadan fast be based on the testimonies of two Bedouin.30 The opinions of the law schools are presented as being based on one of the above-mentioned traditions or on a compromise between them.31 The opinion of Abu Hanifa (d. 767), the eponym of the Hanafi school, is that if the sky is cloudy, the report of one person on the new moon is sufficient; but if the sky is clear above a large town, the testimonies of a large number of people (alistifa¯d.a; shaha¯dat al-jamm al-ghafı¯r; al-tawa¯tur mi-man yaqau al-ilm biqawlihim) is required. He reasons that if the sky is clear and a group of people are searching for the new moon, it is implausible that only one person will notice it. According to another hadith transmitted from Abu Hanifa, if the sky is clear, the testimonies of two reliable witnesses are required. According to the transmission of al-Muzanı¯, Shafii (d. 820) is satisfied with one witness.32 The same opinion is held by Ibn Hanbal (d. 855), the eponym of the Hanbali school, but it is also related that he prefers two witnesses (ithnayn ajabu ilayya). Unlike Abu Hanifa, Ibn Hanbal thinks that it is plausible that only one person from among a large group of people would notice the new moon, for reasons such as the angle of his position and the quality of his vision. In contrast with Abu Hanifa, Shafii, and Ibn Hanbal, who in principle permit the reliance on one person’s report, Malik b. Anas (d. 795), the eponym of the Maliki school, requires at least two reliable witnesses; it is also related that if the sky is clear, he requires more than two. He argues that there is no ground for making the new moon of Ramadan an exception to all other months, with respect to which the requirement is two witnesses.33 The Hanafi Sarakhsi argues that even those Companions who permitted reliance on the testimony of one person on issues related to worship prefer that more than one person testifies, not as a condition of the validity of the testimony but as a precaution (ih.tiyat.)—that is, a way to achieve more confidence that the report is accurate. It is reported that Ali b. Abi Talib required a single witness to take an oath for precisely that reason.34 Ibn Rushd the Grandson (d. 1198) explains that the conflict of opinions among the eponyms of the law schools is based, inter alia, on the doubt as to whether the report on the new moon of Ramadan is classified as a shaha¯da

Between a Witness, A Reporter, and a Judge

35

or as a khabar (taraddada al-khabar fı¯ dha¯lika bayna an yaku¯n min ba¯b alshaha¯da aw min ba¯b al-amal bi1 -ah.a¯dı¯th allatı¯ la yushtarat.u fı¯ha¯ al-adad). Abu Hanifa was understood by later jurists as regarding testimony on the new moon of Ramadan as the transmission of a report (ajra¯hu majra¯ al-khabar) and therefore permitting the report of a female and of a slave in this context. Indeed, Ibn Rushd the Grandson holds that the similarity between a reporter on the new moon and a transmitter of hadith is closer than the similarity between a reporter on the new moon and a witness (tashbih al-ra¯ı¯ bil-ra¯wı¯ huwa amthalu min tashbı¯hihi bil-sha¯hid).35 What are the specific grounds for the similarity found by jurists between a report on the new moon and transmission of a hadith? In both cases there is equality between the reporter and the recipients of the report: in the case of hadith, both the transmitter and the recipients are obliged to follow the legal rule contained in the report. Similarly, both the reporter on the new moon (if he is a Muslim) and the recipients of his report are obliged to start worshiping (al-shuru¯ f ¯ı l -iba¯da). This parallelism appears very clearly in the text of the Hanbali Ibn Qudama (d. 1223): Since it is a report by way of a testimony on the timing of the religious obligation, it is accepted from a reliable single [reporter], similar to a report on the arrival of prayer time; and since it is a report related to a worship in which both the reporter and the recipient of the report participate, it [the report] is accepted from a single reliable [reporter], similar to the transmission [of hadith].36 That the reporter on the new moon is obliged to perform the act of worship like any other believer prevents his having any interest in lying. Thus a single reporter is sufficient. The same logic applies to a report on prayer time and on the purity of water used for ablution, as well as to testimony regarding a person’s conversion to Islam.37 The jurists mention another ground for the acceptability of a single report on the new moon of Ramadan: since this report results in the believers’ entering a state of worship, and since worship is the “right of God” (h.aqq Alla¯h; mah.d. h.aqq al-shar), it is permissible to rely on a single report out of caution (ih.tiya¯t.)—that is, to prevent possible disrespect to the “right of God.”38 An absolute majority of the jurists holds that reporting on the new moon of Shawwal, leading to the end of fasting and the beginning of ı¯d al-fit.r, should be done by two witnesses and according to the standard rules of shaha¯da.

36

Chapter One

What is the difference between the new moon of Ramadan and that of Shawwal? First, a report on the new moon of Shawwal terminates a state of worship (al-khuru¯j min al-iba¯da)—the end of fasting—and it therefore requires two witnesses, similar to a testimony on the apostasy of a fellow Muslim. Also, ending of worship, in this case breaking the fast, involves benefit for the believers (manfaa lil-na¯s)—they can eat and no longer suffer the fasting. As a result, a report on the new moon of Shawwal is similar to a standard testimony in favor of a litigant (naz.¯ır al-shaha¯da ala¯ h.uqu¯q al-iba¯d), which requires two witnesses. The logic is that if the report brings about the end of worship, the reporter may have a greater incentive to lie, to release himself as soon as possible from the burden of fasting. This motive may create conflict and mutual suspicion in the community. It is therefore appropriate to be stricter in the requirement of testimony in the case of Shawwal, similar to a standard lawsuit involving material rights in which the insistence on two witnesses is aimed at easing the mutual suspicion of the litigants.39 In fiqh discussions on evidentiary rules, we find references to additional situations in which it is arguably permitted to be satisfied with one witness and in which the question of whether this witness is indeed a witness or a reporter is debated. One such situation is a secondhand testimony, or, literally, a testimony on a testimony (al-shaha¯da ala¯ al-shaha¯da). In this case, the primary witnesses (shuhu¯d al-us.u¯l)—those who witnessed the event that is the subject of the lawsuit—are unable to appear in court in person, due to a journey, sickness, or some other justifiable reason. They relate their testimonies to secondary witnesses (shuhu¯d al-furu¯), who appear in court in their stead. The jurists are split between two main opinions. According to the first, attributed to the majority of Iraqi and Hijazi jurists, including Abu Hanifa, Malik (as related by al-Mawardi and Ibn Qudama), and Shafii, two secondary witnesses should represent each primary one. The reasoning behind this position is that since the qadi makes a ruling on the basis of al-shaha¯da ala¯ al-shaha¯da, the effect of such a testimony is binding (shaha¯da mulzima) and the standard requirements of testimony should apply.40 By contrast, Shafii (according to al-Muzani’s transmission) demands two pairs of different secondary witnesses for each of the primary ones—four secondary witnesses in all. According to a second opinion, attributed to Ibn Hanbal and, according to Sarakhsi, also to Malik, it is sufficient that one secondary witness represent each primary one. They reason that the secondary witness is a substitute (badal) for the primary one, and that the total number of secondary witnesses should be the same as that of the primary ones. Moreover, the secondary wit-

Between a Witness, A Reporter, and a Judge

37

nesses merely transfer the testimonies of the primary ones to the court and are therefore messengers on behalf of the primary ones. Thus, Ibn Hanbal argues it is obligatory to accept the report of one secondary witness (qawl wa¯h.id), as in the case of reporting on religious matters (akhba¯r al-diya¯na¯t). According to Sarakhsi, Malik regarded al-shaha¯da ala¯ al-shaha¯da as similar to the transmission of Prophetic reports or reporting on religious matters (riwa¯yat al-akhba¯r).41 Another functionary who falls between the categories of a reporter and a witness is the one responsible for the screening of witnesses. Verification of the witnesses’ uprightness (tadı¯l) is a condition of the acceptability of their testimonies by the court. This verification is conducted through a procedure called tazkiya. The qadi authorizes a reliable messenger to question the witnesses’ neighbors and the people of the market regarding the credibility of the witnesses. This part of the procedure is called secret screening (tazkiyat al-sirr). Every secondary witness who testifies on the reliability of a primary witness before the qadi’s messenger is called a muzakkı¯.42 What is the required number of muzakkı¯s? The first opinion, that of Muhammad al-Shaybani (Abu Hanifa’s student, d. 802), Malik, and Shafii, requires two muzakkı¯s for each primary witness. These jurists argue that since the tazkiya is meant to allow a testimony by which the plaintiff establishes his rights against the defendant (that is, h.aqq al-iba¯d matter is involved), the standard rules of shaha¯da should apply. These jurists permitted each of the muzakkı¯s to testify on the reliability of the two primary witnesses. The second opinion, that of Abu Hanifa, his student Abu Yusuf (d. 798), and Ibn Hanbal, regards tazkiya testimony as a khabar (ajra¯hu majra¯ alkhabar) and holds that one muzakkı¯ for each primary witness is sufficient; also, the muzakkı¯ does not have to use the shaha¯da formula. Abu Hanifa and Abu Yusuf explain that the tazkiya brings about the determination of the evidence (taqarrur al-h.ujja), which in turn facilitates the handing down of a court decision. Making a court ruling is the “right of God” (h.aqq al-shar, in contrast with the first opinion, which regards it as h.aqq al-iba¯d). Abu Hanifa and Abu Yusuf also argue that since a single report is acceptable on matters of religious worship, all the more so is it acceptable on the issue of inspecting the reliability of the witnesses (al-jarh. wal-tadı¯l). The Hanbali Ibn Qudama rejects the similarity that the eponym of his school, Ibn Hanbal, draws between tazkiya testimony and transmission of hadith. Ibn Qudama adopts the first opinion, arguing that tazkiya testimony is different from hadith transmission, in which the evidentiary rules are eased ( fa-innaha¯ [riwa¯yat al-h.adı¯th] ala¯ al-musa¯hala).43

38

Chapter One

3. expert witnesses—how many are required and why? 3.1. General The linkage between expert testimony, on the one hand, and testimony on issues relating to religious worship and hadith transmission, on the other, raises a number of questions: Do the jurists hold that one expert is sufficient, as in other cases of khabar, or that two experts are required, as in shaha¯da? And, assuming that one expert is sufficient, what are the juristic justifications for that relaxation of evidentiary requirements? According to Brunschvig, who studied Maliki texts, the theoretical classification of experts in Islamic law is basically as witnesses, and they are therefore subject to the rules pertaining to testimony. Practical considerations (in his words: les besoins de la procédure), however, created a judicial reality in which the theoretical evidentiary requirements with respect to experts were relaxed. The final result was that the jurists had to justify the acceptability of one expert instead of two.44 By contrast, Baber Johansen argues that “the expert does not testify or take an oath; rather, he conveys an opinion based on knowledge and, for that reason, he may stand alone: his deposition is valid even without a second witness or co-jurors.” This argument is related to Johansen’s discussion of how Maliki jurists of the Mamluk period—namely, Ibn Taymiyya, Ibn Qayyim al-jawziyya, and Ibn Farhun—integrated circumstantial evidence into fiqh doctrine of evidence and procedure. Ibn Qayyim went so far as stating that physical indicators are stronger evidence than the testimony of witnesses, because they do not lie. Expert witnesses, by knowing how to interpret physical indicators, or how to interpret “the language of things,” become indispensable aids to judges.45 Mohammad Fadel, discussing the status of females as witnesses, develops the distinction between normative reporting, for example the transmission of hadith and the issuance of a legal opinion, and political reporting, such as court testimony. Expert opinion, according to this categorization, falls under the first category. Fadel explains: Court-appointed experts, it was believed, simply reported facts about the external world that were universally valid, just as a mufti reported facts about the law that were universally valid; the testimony of the . . . doctor . . . lacked the partisan nature that was the distinguishing charac-

Between a Witness, A Reporter, and a Judge

39

teristic of testimony; Maliki jurists, for example, were so committed to the notion that expert testimony was objective that they did not subject it, unlike ordinary testimony, to rebuttal.46 In support of his statement, Fadel provides a quotation from the Maliki jurist Ibn Hisham (d. 1209): There is no rebuttal of them [i.e., expert opinions], because they were not asked to testify. Indeed, the judge only asked them for information, so they provided him with it. Rebuttal is only allowed in [cases of ] doubt and suspicion of the witnesses, and this has been the basis of [legal] practice according to the master jurists. (Ibid.) In conclusion, Fadel states that because expert opinion is objective, females were allowed to serve as court-appointed experts. Moreover, the court accepted the opinion of one expert female as sufficient evidence.47 In what follows, I present a detailed analysis of the juristic discourse on the probative status of various experts—the translator, the physician, the assessor (muqawwim or qayyim), the divider (qa¯sim), and the physiognomist (qa¯if ). I demonstrate that the jurists, on the basis of the distinctions between riwa¯ya and shaha¯da, seek to categorize various experts as either reporters or witnesses. At the end of this chapter, I use the findings of this analysis to challenge the thesis of Johansen and Fadel. 3.2. Translation When litigants or witnesses speak a language that the qadi does not understand, he needs the services of a translator. What are the personal qualifications demanded of a translator? He must be an upright Muslim, like a hadith transmitter and a reporter on religious matters (riwa¯yat al-akhba¯r). If an upright translator is unavailable, however, it is permitted to use a person of suspicious character, due to necessity, analogous to a non-Muslim physician.48 Unlike a hadith transmitter, a translator must be a free male. This is because a legal rule contained in a tradition applies to the person who transmitted this tradition, while the content of a translated text obliges the litigants but not the translator himself. Is one translator sufficient or are two required?49 Abu Hanifa, Abu Yusuf, and Ibn Hanbal (the latter according to the transmission of Abu Bakr Abd al-Aziz) hold that one is sufficient, because translation is in the category of

40

Chapter One

reporting and not of witnessing; but two translators are preferable out of caution (wal-mathna¯ ah.wat.; li-annahu fı¯ al-ih.tiya¯t. aqrab). The opinion that one translator is sufficient is supported by the precedent of Zayd b. Thabit, who served as a single translator of the Jewish scriptures for the Prophet.50 According to one transmission, Malik holds that one translator is sufficient if the qadi appoints him. If the translator is hired by a litigant, however, two are required, similar to a standard testimony. According to a second transmission, Malik requires two translators unconditionally.51 Qarafi, who does not have a clear-cut opinion, thinks that translation bears a greater resemblance to testimony than to reporting. Another Maliki, Ibn al-Shatt, presents a unique argumentation by saying that the character of the translated text decides the status of the translation—if the text is a transmitted tradition, one translator suffices, but if it is a court testimony, two translators are required.52 The Hanafi Shaybani, differing from Abu Hanifa and Abu Yusuf, requires two upright and free Muslim translators, as in shaha¯da, because the translator’s sayings have a binding effect (ilza¯m) on the qadi’s ruling and because the qadi can understand the content of the testimonies only through the translation. The translator, however, does not have to use the shaha¯da formula. This formula is meant to deter witnesses from lying, but the translator does not have any motivation to lie.53 The Shafiis also demand two translators, arguing that the translation brings about the affirmation of an acknowledgment (tathbı¯t iqra¯r). Because such affirmation requires freedom and honesty, it requires the same number of witnesses as in shaha¯da. The Shafii Mawardi contests Abu Hanifa’s position. To the Hanafi claim that just as religious rules (shara¯i al-dı¯n) are accepted through a single transmission (khabar al-wa¯h.id), the more so is the translation of one person, Mawardi answers that accepting traditions from a slave transmitter is valid, whereas the translation of a slave is void, and therefore the analogy created by the Hanafis between transmission of hadith and translating is faulty. As for the Hanafi inference from the acceptability of both a translation by a blind man and the reporting of tradition by a blind man that both cases are categorized as khabar, Mawardi responds that a blind man can be a witness on issues that require only hearing, and it is therefore impossible to infer from his acceptability as a translator whether he is a witness or a reporter. Ibn Qudama, who represents the preponderant Hanbali opinion (not that of Ibn Hanbal himself), argues that translation is a transmission (naql) of something that is hidden from the judge and related to the litigants, and therefore the number of required translators is two, as with witnesses.54 Translation

Between a Witness, A Reporter, and a Judge

41

is different from religious reports and similar to reporting to the qadi on an acknowledgment made by a person out of court, which requires two witnesses. According to Ibn Qudama, if the lawsuit in which translation is required involves the Quranic punishments (h.udu¯d) or retaliation of physical injury (qis.a¯s.), two honest male translators are required. If it is a monetary lawsuit, one male and two female translators are acceptable, and they may be slaves. 3.3. Physicians and the Assessment of Physical Defects and Wounds Earlier I mentioned the exemplary case of a dispute between a recent buyer of a slave and the seller concerning physical defects in the slave discovered by the buyer soon after taking possession of the slave. The buyer argues that the defect originated when the slave was still in the ownership of the seller, who concealed from him any information about the defect at the time at which the sale contract was concluded. The seller, however, argues that the defect occurred after the sale contract was concluded and the slave was conveyed to the buyer, and the latter therefore has no ground to demand compensation or to annul the contract and get his money back. Hanafi jurists refer in this context to physical defects known only to physicians. The majority of Hanafi jurists agree that the testimony of two upright Muslim physicians to the effect that the defect is “old” is required to enable the qadi to rule on the annulment of the sale and the return of the slave to his original owner. Sarakhsi says explicitly that the testimony of a number of physicians (namely, two) is required, because their report (qawl) is as binding as a testimony (la¯ budda min al-adad fı¯ dha¯lika liannahu qawl mulzim kal-shaha¯da).55 The point of difference among Hanafi jurists is how many physicians must testify on the existence of the defect for the buyer to be entitled to file his claim (li-tawajjuh al-khu¯s.u¯ma) against the buyer.56 Most Hanafis think that one upright physician is sufficient;57 others, however, hold that two are required. Ibn Abidin opts for the first opinion, on the grounds that since two physicians are required to determine that the defect is “old,” the testimony of one is sufficient for establishing the mere existence of the defect.58 The preponderant Maliki opinion, associated with Malik himself, requires two upright experts, on the grounds that the physician’s report is a testimony.59 Ibn Kinana (d. 813 in Medina) attributed to Malik a slightly different opinion, according to which it is better to have two experts, but if two are unavailable, one reliable expert suffices.60 Put differently, if the evidence regarding the defect is provided by experts who are not reputable and there are no other ex-

42

Chapter One

perts (ahl al-bas.ar bil-uyu¯b) in the city, the qadi is permitted to rule on the basis of their opinions and even on the basis of the opinion of one such expert. The jurist Ibn al-Majishun (d. 827) is reported as holding that the qadi is allowed to rely on the opinion of one dubious expert, because the qadi does not posses medical knowledge.61 Ibn Rushd the Grandson says that if there is no alternative, a report by one physician is sufficient, even if he is a non-Muslim and of dubious character.62 In a different discussion, Ibn Rushd draws an analogy between a physician sent by the qadi to inspect a physical defect and other types of messengers sent by a qadi–for example, a messenger sent to receive the testimony (or the oath) of a witness who is not able to attend the court in person or to receive an acknowledgment concerning a h.add offense.63 Although the above-mentioned Malikis in principle require two physicians but are willing to accept the testimony of one expert on practical grounds, a minority opinion of the school, associated with the Andalusian Ibn Habib (d. 853), holds that the qadi is allowed to rely on one expert, even a nonMuslim one, because his opinion is a report and not a testimony.64 This is also the opinion of Ibn Hisham (d. 1209).65 Ibn Hisham holds that the qadi is entitled to be satisfied with the report of one physician, even a non-Muslim, because the report is based on knowledge and is not a testimony (li-annahu fı¯ jihat al-ilm la¯ min ba¯b al-shaha¯da).66 Note that Ibn Hisham uses the opposing terms ilm and shaha¯da, whereas most of the jurists I have come across use khabar and shaha¯da. Elsewhere, Ibn Hisham says that, according to Maliki practice, if the physicians testify about a defect found in a slave, the litigant who is going to lose the case as a result of this testimony is not entitled to attack the character of the experts in an attempt to refute their opinion, because whereas such an attack is applicable in the case of witnesses, the physicians are only informers ( fa-lam yakun fı¯him [ fı¯ ahl al-bas.ar] idha¯r li-annahum lam yusalu¯ al-shaha¯da wa-innama¯ al-qa¯d.¯ı istakhbarahum fa-akhbaru¯hu; wal-idha¯r innama¯ huwa ala¯ al-z.unu¯n wal-tuhma lil-shuhu¯d).67 The Egyptian Shafii al-Suyuti (d. 1505) refers to consultation with physicians with regard to “mortal illness” (marad. al-mawt). According to fiqh, any transaction (such as a last will and testament or the foundation of a waqf ) conducted by a person on his deathbed that prejudices the rights of his legal heirs is void.68 Al-Suyuti cites the opinion of the Shafii Abd al-Karim b. Abi Said al-Rafii (from Qazwin, d. 1226), who requires for this purpose two upright and free Muslim physicians. This opinion is categorized by al-Nawawi as the apodictic opinion of the school (al-madhhab al-jazm), on the grounds that determination of mortal illness affects the personal (monetary) rights of the dying person’s heirs. This differs from consultation with physicians on

Between a Witness, A Reporter, and a Judge

43

whether to permit a sick person to use sand instead of water for his ablutions, in which case one physician is sufficient because ablution is the “right of God.”69 The Hanbali Ibn Qudama refers to the same question in the context of evaluating the severity of a head wound caused by a beating. In this context, a physician’s opinion is required for assisting the qadi in determining the amount of blood money. In the same discussion Ibn Qudama includes the issue of a beast that is injured or becomes sick while in the possession of the person who rents it for work. The renter has to compensate the owner of the beast. Ibn Qudama quotes al-Khiraqi (d. 946), who says that if it is possible to get two physicians, it is not acceptable to be satisfied with the opinion of one physician or one veterinarian, because this is a matter of (monetary) rights. Only if a second physician is unavailable is it permitted to rely on the opinion of one, because such an opinion requires the expertise of professional physicians. Al-Khiraqi draws an analogy between this case and that of physical defects in the intimate parts of a female body, with regard to which it is permissible to rely on the report of only one female expert (see below). If one female expert is sufficient, argues al-Khiraqi, all the more so is one male expert. Ibn Qayyim al-Jawziyya, quoting Ibn Qudama almost word for word, adds that the justification for relying on only one expert is a state of necessity (h.a¯lat d.aru¯ra).70 3.4. The Evaluation of Property Value and the Division of Assets Debates on the required number of expert witnesses appear in fiqh discussions concerning the evaluation of estates and goods, the value of damages caused to both movable and immovable property, and rental prices. The Hanafi Ibn Abidin discusses a case in which there is a need to evaluate certain merchandise—one time if it is intact and a second time when it is defective. He argues that two assessors (muqawwimu¯n, sg. muqawwim) who practice the same craft to which the defective goods belong (al-muqawwim al-ahl fı¯ kull h.irfa) must report their evaluations by using the formula of testimony (yukhbira¯n bi-lafz. al-shaha¯da).71 The Shafiis and Malikis likewise require two assessors, arguing that the assessment is a testimony concerning the value.72 The Hanafi Sarakhsi discusses a conflict of opinion among the assessors (in one place he calls them “knowledgeable people,” ahl al-ilm; in a second he calls them “assessors,” muqawwimu¯n) about the value of stolen property— one says it is above ten dirhams (the nis.a¯b, the minimum value of stolen property required for applying the h.add punishment), the other assessor says it is

44

Chapter One

less than the nis.a¯b. This disagreement prevents the application of the h.add. It is therefore necessary, Sarakhsi says, that two assessors agree that the value of the stolen property exceeds the nis.a¯b, because evidence on the basis of which a judgment on h.add punishment can be handed down is not completed by one opinion (al-h.ujja al-h.ukmiyya la¯ tatimmu bi-qawl wa¯h.id).73 The Hanafi jurist Haskafi (d. 1677) discusses a case in which a person claims that the rental price of an endowed asset (waqf ) is far below the market price. He determines that if an expert (dhu¯ khibra) supports the claimant’s claim, the qadi has to annul the rent contract and instruct the parties to raise the rent to the customary market level.74 Ibn Abidin infers from Haskafi ’s use of the term dhu¯ khibra (singular) that one expert suffices, which is in accordance with the opinions of Abu Hanifa and Abu Yusuf and in contrast with the opinion of Shaybani (who requires two).75 Malik also permits reliance on a single assessor, except for h.add cases, in which two assessors are required.76 The Malikis Qarafi and Ibn al-Shatt disagree with Malik. Qarafi argues that assessment is more similar to testimony than it is to either transmission of hadith or judgment (h.ukm), implying that two assessors are required. Ibn al-Shatt argues the same, on the grounds that an assessment facilitates a judgment that in turn creates monetary obligations.77 A particular type of assessor was the kha¯ris., whose role, as the ruler’s delegate, was to assess the quantity of fruit or crops before they are picked or harvested. This early assessment was needed for tax purposes. The first kha¯ris. in Islamic history was the Companion Abd Allah b. Rawaha (from the tribe of al-Khazraj in Medina; d. 629), who was sent by the Prophet to assess the date crops of the al-Khaybar Jews. The historical example of Ibn Rawaha serves as a precedent for the Maliki, Shafii, and Hanbali preponderant opinion that one kha¯ris. is sufficient. Some of the jurists holding this opinion draw an analogy between a kha¯ris. and a judge (h.a¯kim), both of whom act alone according to their individual discretion (ijtiha¯d). Shafii, however, recommends sending two assessors, or even more if possible.78 The divider (qa¯sim) was an expert whose role was to divide estates and goods among partners and heirs. According to Malik, one divider is sufficient but two are better (al-ah.san). Qarafi confirms that the opinion supporting one divider is the dominant opinion of the school (mashhu¯r). He explains that division is similar to both judgment and transmission, but that the strongest (alaz.har) similarity is to the first, because the judge nominates the divider as his representative (istana¯bahu). Ibn al-Shatt differs with Qarafi, arguing that the divider’s report is a testimony and not a judgment. This is also the opinion of the Maliki Abu Ishaq al-Tunsi (d. 1052).79

Between a Witness, A Reporter, and a Judge

45

According to the Maliki al-Kharashi,80 all the jurists agree that one divider is sufficient, because he reports on the basis of knowledge possessed by only a small number of people (li-annahu t.arı¯quhu al-khabar an ilm yakhtas.s. bihi qalı¯l min al-na¯s), comparable to the physiognomist, the mufti, and the physician (even an infidel one). If the divider is sent by the judge, he must be upright. If the division involves, as a preliminary step, assessment of the properties, two dividers are required, because the assessment is a testimony concerning the value, and the standard rules of shaha¯da therefore apply.81 The Maliki Tulaytuli, in a legal formulary of assessment, refers to one assessor whose religiosity, reliability, and expertise are accepted by the parties (rad.u¯ dı¯nahu wa-ama¯natahu wa-bas.arahu bil-qisma) who appoint him to assess their property and divide it among them.82 The Shafii jurist al-Nawawi (d. 1277) says that a divider nominated by the qadi must be a free, upright, legally capable (mukallaf ) male Muslim who is knowledgeable in measurement, arithmetic, and assessment. If the divider is chosen mutually by the parties, the requirements of uprightness and freedom do not apply. This is because the qualifications required of a divider whose status, as the qadi’s delegate, is that of a judge (h.a¯kim) naturally are higher than those required of a divider chosen by the parties, in which case his legal status is that of a representative (wakı¯l).83 If the division does not include assessment, the school opinion is that one divider is sufficient, although a few Shafiis hold that there are two school opinions (one and two dividers, respectively). If the division involves assessment, two dividers are needed. The ruler is entitled to nominate a divider as a judge with regard to the assessment (li-jalihi h.a¯kim fı¯l-taqwı¯m).84 The Shafii Mawardi refers to two statements by al-Shafii regarding a division that does not involve assessment. According to the first, two dividers are required; according to the second, the divider is equated to a judge (h.a¯kim), which means that one is sufficient. The Shafii jurists are confused by what seems to be two opposing views of al-Shafii. Most of them argue that there are two school opinions: (1) that one divider is sufficient, like one measurer (kayya¯l) and one weigher (wazza¯n);85 (2) that two dividers are required, like two assessors and two judges with respect to “punishment for hunting” ( jaza¯ al-s.ayd). The last term is derived from Q. 5:95, which prohibits hunting during the pilgrimage (h.ajj). According to the verse, a Muslim who violates this prohibition breaks his state of sanctity (ih.ra¯m) and must pay compensation, the value of which is determined by two reliable persons (yah.kumu bihi dhawa¯ adl minkum).86 According to this opinion, if the divider is considered a judge (h.a¯kim), it is possible that the required number of dividers be two (an yujma

46

Chapter One

fı¯hi bayna ithnayn), because Q. 4:35 says (in the context of marital dispute): “send one arbitrator (or adjudicator) from his family and one from hers.” Other Shafiis, those who deny that there are two school opinions on the matter, hold that the school differentiates between two situations: (1) if one of the partners is a minor or a missing person and unable to defend his rights, two dividers are required; (2) if the partners are present and able to defend their interests, one divider suffices. The judge has to accept the divider’s conclusions, because the latter represents him (istina¯batihi lahu), in the same way that the qadi has to accept the judgments of his deputies (khulafa¯).87 3.5. Physiognomy The pre-Islamic Arabs perfected the science of physiognomy (qiya¯fa), which permitted them to verify lines of parentage by finding similar signs (ima¯ra¯t or ala¯ma¯t) on the bodies of the child and his presumed father or mother. In his al-Turuq al-Hukmiyya, Ibn Qayyim al-Jawziyya explains that these signs may be invisible to the layman’s eye and that only the physiognomist, due to his unique sensory abilities, is able detect them. Ibn Qayyim adds that the Prophet and the Companions, the Righteous Caliphs, considered physiognomy the means for establishing paternity ( jaalaha¯ dalı¯lan min adillat thubu¯t al-nasab) and made use of it. The Sunni schools of law, except for the Hanafis, accept the reliance on physiognomy.88 According to the Shafii al-Mawardi, four features are inspected: bodily form and the form of organs; color of skin and type of hair; patterns of movement; and way of talking, voice, and temperament. These elements may be apparent (z.a¯hir) or hidden (khafiyy). Some physiognomists excel in detecting many features of similarity; others excel in determining the strength of each feature. In addition to his professional expertise, a physiognomist must be a free, upright (Muslim) male, because his determination of paternity falls between a judgment and a testimony (li-annahu mutaraddid al-h.a¯l bayna h.ukm wa-shaha¯da). If he functions in court as an informer (manzilat al-mukhbir), he does not have to be knowledgeable in fiqh; but if he appears as a judge (manzilat al-h.a¯kim), he must be familiar with the laws of paternity.89 Mawardi says it is for the qadi to decide whether the physiognomist functions as a judge or as a reporter (ijtahada [al-qadi] rayahu fı¯ tah.kı¯m al-qa¯if aw istikhba¯rihi). If the qadi uses the physiognomist as a judge, he delegates to him his adjudicative authority (in ada¯hu ijtiha¯duhu ila¯ tah.kı¯mihi, ka¯na dha¯lika istikhla¯fan lahu fı¯l-h.ukm baynahuma¯). If the chosen physiognomist excels in his profession, the qadi may be satisfied with just one, because the

Between a Witness, A Reporter, and a Judge

47

physiognomist is in the position of a judge. If, however, the qadi designates two physiognomists, this brings about greater certainty ( fa-in jamaa bayna qa¯ifayn ih.tiya¯t.an ka¯na awkad), analogous to the designation of two adjudicators in the case of a dispute between spouses. If the qadi decides to use the physiognomist as an informer, he has to nominate two of them, because he is forbidden to hand down a decision on the basis of a single report (khabar alwa¯h.id). He must base himself on the testimonies of two witnesses, analogous to the requirement to have two assessors. Mawardi adds that after the two physiognomists have completed their inspection, there are two ways (wajha¯n) in which they may deliver their conclusions to the court: (1) in the form of a report (khabar yuadda bi-lafz. alikhba¯r); (2) in the form of a testimony (shaha¯da tuadda bi-lafz. al-shaha¯da). The first option is justified on the grounds that a witness usually testifies about an event he saw or heard, and since these two modes—observing an event or hearing about it—are absent from the physiognomist’s work, his conclusions must be categorized as a report. The second option is justified on the grounds that the physiognomist’s report is a shaha¯da, in spite of its not being based on an event he saw, because the circumstances testify (al-h.a¯l yashhadu) and also because a judgment must be based on a testimony and not on a report.90 The Maliki school position is that the report of one physiognomist (even if he is of dubious character or a non-Muslim) is sufficient because he is a reporter (rather than a witness).91 However, the Maliki Qarafi holds that physiognomy resembles both testimony and transmission: with regard to the first, the physiognomist’s report applies to specific persons and not to the entire community; with regard to the second, the physiognomist’s function serves the entire public. Qarafi holds that the similarity to testimony is stronger, meaning that two physiognomists are needed, contrary to the dominant position of his school. It may be argued, says Qarafi, that the element of potential hostility associated with the provision of testimony is absent in the case of physiognomy, because the physiognomist used to be chosen (during the lifetime of the Prophet) from among the Banu Mudlij, an Arab tribe whose members were well known as experts in that realm. But this argument does not hold water: first, because the Banu Mudlij did not have a monopoly on the role of physiognomists; second, because the physiognomist’s report is accepted even without his previous nomination by a qadi—as was the case with the physiognomist Mujazziz al-Mudliji, who established the paternity of Zayd b. Haritha (the Prophet’s adopted son) over Usama (d. 674 in Medina) without the Prophet’s asking him to do that.92 Another instructive illustration relating to the probative status of expert

48

Chapter One

testimony is provided by the Hanbali Ibn Qayyim al-Jawziyya. Discussing the categorization of the physiognomist as a witness or as a judge,93 Ibn Qayyim says that this disputed categorization is useless, because there are cases in which one witness is sufficient—examples being the divider, the kha¯ris., the assessor, and the physician—while there are cases in which two judges are needed, an example being the above-mentioned h.a¯kima¯n fi jaza¯ al-s.ayd. Ibn Qayyim then discusses a second pair of disputed categories: is the physiognomist a witness or a reporter (mukhbir)? He maintains that these categories are useless, because the witness is a reporter and the reporter is a witness. Anyone who testifies about something is a reporter. The sharia, argues Ibn Qayyim, does not distinguish between the two (al-sharı¯ a lam tufarriq bayna dha¯lika as.lan). The distinction is mistakenly created by those jurists who make the acceptance of testimony conditional upon the use of the shaha¯da formula and are not satisfied with a simple reporting. Ibn Qayyim holds that the reasoning behind this distinction is weak and that there are many indicators to the contrary, both in the Quran and in the hadith. He quotes Ibn Hanbal, who holds that if one physician is sufficient in a case in which a second one is unavailable, how much more so is one physiognomist, because there are more physicians than there are physiognomists.94

4 . t h e s ta t u s o f f e m a l e s a s e x p e r t witnesses and their required number The position of women in Muslim societies in general, and in the fiqh in particular, is reflected in the rules of evidence. Generally speaking, Muslim jurists, like Jewish jurists, are reluctant to rely on female testimony. The majority of jurists agree that female testimony is entirely excluded, not only from all Quranic punishments (h.udu¯d) and penal (uqu¯ba¯t) cases, but also from claims of marriage and divorce, because these fields encompass issues dealing primarily with the human body and its status (for example, a marriage contract entitles the husband to exclusive enjoyment of his wife’s body). As for financial matters, according to a literal interpretation of Q. 2:282,95 the standard testimony is of two males; if, however, there is only one male witness, it is permitted to replace the second male witness with two females. The traditional rationalization for the two-to-one ratio is that females are forgetful and imprecise in relating details. The two female witnesses remind each other about the details of the transaction under consideration, thereby complementing each other and producing a full testimony, equal to that of one male.96 A few recent studies shake up this monolithic patriarchal narrative by pro-

Between a Witness, A Reporter, and a Judge

49

posing a modernist reading of Q. 2:282. Muhammad Fadel, for example, argues that two discourses with regard to female testimony may be found among post-Ayyubid Sunni jurists. The first, which he calls “normative,” recognizes the equality of women to men as transmitters of hadith and as mujtahids.97 The second, which he calls “legal-political,” discriminates against women as witnesses and judges. A few jurists, among them the Maliki al-Qarafi and the Syrian Hanafi al-Tara¯ bulsı¯ (d. 1440), were troubled by the fact that it is impossible to justify the gap between the two discourses on the grounds of the natural intellectual inferiority of women. They therefore developed socially oriented justifications for this gap. This interpretive line, certainly not a dominant one, has been revived by the Islamic reformer Muhammad Abduh and his followers, who argue that female testimony has been discounted because women have traditionally pursued domestic occupations that prevented them from developing memory skills, precision in details, and proficiency in such public matters as contracts.98 Although Muslim jurists generally hold that female testimony is not “basic evidence” (h.ujja as.liyya), there is one field in which the testimony of women has been essential and enjoyed a privileged status—testimony relating to the hidden parts of the female body (in legal jargon: “under the dress,” tah.t al-thiya¯b). This is the only field in which fiqh, on the grounds of necessity (d.aru¯ra), permits women to testify alone and not alongside a male.99 The necessity is created, as in Jewish law, by males being prohibited from viewing the intimate parts of the female body.100 The jurists disagree about events involving females that men are forbidden from seeing. For example, Abu Hanifa holds that unrelated males are permitted to see a woman breast-feeding and thus are able to testify about it. Similarly, he holds that males are prohibited from witnessing a birth but may testify about the first cry of the newborn (istihla¯l). It seems, however, that Abu Hanifa’s is a minority opinion and that the majority of jurists prohibit males from witnessing breast-feeding and the istihla¯l. According to Hanafi sources, if a male happens by chance to view a “female-exclusive” event, such as a birth, he is permitted to testify about it if he is an upright person.101 It is convenient to divide female testimony regarding the female body into two types. In the first, the female supplies standard eye-witnessing on events in which she participates and that are closed to males, such as birth and breastfeeding. Every Muslim female who is a major and is reliable is qualified to supply this kind of testimony. In the second, a female who is a midwife or possesses medical knowledge provides her expert opinion about events that she has not observed personally (for example, sexual intercourse between a recently wed-

50

Chapter One

ded couple) on the basis of her interpretation of signs found on the inspected female’s body (for example, signs of the existence or absence of virginity). These two types of testimony are different, the first being standard, whereas the second is expert witnessing. The juristic discourse, however, does not make a systematic distinction between the two types, and they are discussed jointly. Also, that the jurists, in referring to expert females, use neutral wording, such as “a woman” (imraa), “women” (nisa¯), “a just woman” (imraat adl), and “women trusted by the qadi” (mimman yathiqu [al-qadi] bihinna), as well as wording indicating expertise, such as “a midwife” (qa¯bila, pl. qawa¯bil) or “a woman knowledgeable in medicine” (imraa ma¯hira bil-t.ibb), makes it difficult for the reader to distinguish between the two.102 A female who testifies about signs found on another female’s body is an expert witness. The Hanafi Sarakhsi, discussing the case of a convicted female adulterer who is arguing that she is pregnant, instructs the qadi to delay the application of the h.add punishment (for the sake of the baby’s life) and have females inspect her. He explains that the qadi must consult with experts whenever he faces difficulty (wa-ma¯ yashkulu ala¯ al-qa¯d.¯ı fa-innama¯ yarjiu fı¯hi ila¯ man lahu bas.ar fı¯ ha¯dha¯ al-ba¯b), and compares the inspecting female to a male expert, qayyim al-mutlafa¯t—that is, an expert in assessing the decrease in the value of damaged property.103 A few prominent traditions provide the framework for the juristic discourse on female expert testimony.104 According to one tradition, the Prophet says that the testimony of women (shaha¯dat al-nisa¯) is permitted with regard to events that males are forbidden to observe. According to a tradition transmitted by the Prophet’s Companion Hudhayfa b. al-Yaman (d. 656), the Prophet allowed the testimony of a (single) midwife concerning a birth. According to another tradition, Uqba b. al-Harith married Umm Yahya b. Abi Ihab, and, following their marriage, a black female slave (her name is not indicated) claimed that she had breast-fed both Uqba and his wife, which created a ban on their marriage. Uqba sought relief from the Prophet, arguing that the slave was lying. The Prophet dismissed his claim and held that he must separate from his wife on the basis of the slave’s testimony. These traditions formed the basis of two juristic attitudes. The first, attributed to the Malikis and Shafiis, requires anywhere between two and four female expert witnesses, on the grounds that such testimony falls within the scope of the term shaha¯da. The supporters of this opinion argue that the fact that the tradition narratives use the term shaha¯da (rather than khabar) and the term female in the plural (rather than in the singular) proves that all the standard rules of testimony apply, excluding the requirement that the witness

Between a Witness, A Reporter, and a Judge

51

be a male. The number of female experts therefore must be two (the Maliki opinion), while the Shafiis require four, according to the standard ratio of “one male equals two females.”105 In support of their view, these jurists state that the fact that the female expert is required to be a free Muslim proves that the testimony she provides is a standard shaha¯da. The second attitude, associated with the Hanafis and Hanbalis,106 permits reliance on the testimony of one female, on the grounds that such testimony is not a standard shaha¯da but rather a khabar, a report, similar to the transmission of a tradition. This approach is based on the following grounds. (1) In the hadith one finds support for the testimony of one female in this context—for example, the above-mentioned tradition of Uqba b. Harith concerning the black slave wet nurse. The Hanafi Sarakhsi, a supporter of this approach, deals with the difficulty emanating from certain traditions that use the term females rather than a female by arguing that females may be treated as a generic noun (ism al-jins), which may be interpreted as either singular or plural.107 (2) Against al-Shafiis’ position, the Hanafis argue that the rule that “one male equals two females” is applicable only to financial claims in which females testify alongside males and is inapplicable to claims pertaining to the female body, in which females testify without corresponding male testimony.108 (3) Sarakhsi argues that from a socio-moral perspective, there is a need (d.aru¯ra) to minimize the shame and disrespect caused to the inspected female by allowing only one female (rather than two) to inspect her.109 In an attempt to refute the Hanafis, who allow reliance on the report of one female expert, the Shafiis argue that the Hanafis’ preferring to have two female experts rather than one, for the sake of caution and certainty, implies that they consider the testimony of a female expert a shaha¯da.110 Responding to this polemical argument of the Shafiis, Sarakhsi says that the Hanafis do not require reports from two female experts, yet if it happens (in other words, accidentally, in ittafaqa dha¯lik) that a woman is inspected or observed by more than one female expert, they do not object to that, since the double inspection increases the reliability of the report. Later Hanafis, more outspoken than Sarakhsi, recommend reliance on two females. For example, Ibn al-Humam (d. 1457) is quoted as saying that reliance on one female expert is accepted, but two or three are better, because their report creates legal obligations.111 The jurists al-Mawsili (d. 1284) and al-Tara¯ bulsı¯ acknowledge that in issues in which women are permitted to testify without corresponding male testimony, the number requirement is dropped, as in the transmission of reports. He adds, however, that “two [female experts] are better for caution, and three are more favorable in the eyes of Allah, and by four any controversy is eliminated”

52

Chapter One

(wal-thinta¯n ah.wat. wal-thala¯th ah.abb ila¯ Alla¯h walbi-arba yakhruj/ yukhraj an al-khila¯f ).112 This is also the Hanbali position.113 The need to minimize the inspected female’s humiliation, Sarakhsi adds, justifies the waiving of two requirements of the witness: gender (female instead of male) and number (one witness instead of two); but it does not justify waiving the requirement of freedom, since an inspection by a free female does not cause a greater shame to the inspected female than an inspection by a slave. The female expert therefore must be free.114 The Hanbali Ibn Taymiyya (d. 1328) refutes the Shafii application of the “two-females-equal-one-male” ratio to female expert testimony. The reason for applying this ratio to female testimonies on financial matters is the inclination of females to forgetfulness and inaccuracy. This reasoning, Ibn Taymiyya argues, is irrelevant to female testimony on the female body, because in this type of testimony the female uses her senses rather than her mind. A single female therefore equals a single male in this respect.115 The approach that permits reliance on one female expert draws an analogy between expert female testimony and the transmission of traditions (riwa¯ya; riwa¯yat al-akhba¯r) by females, as with the analogy made between a male expert and a transmitter of a religious report or of a tradition. Sarakhsi says that the testimony of a female concerning events that males are forbidden to watch is a report (khabar) in which the requirement of masculinity is waived, and that the requirement of the number of witnesses should therefore be waived as well, as with the transmission of reports (riwa¯yat al-akhba¯r).116 At the same time, Sarakhsi tries to reconcile the two positions by arguing that a female’s expert testimony resembles both testimony and report (khabar min wajh wa-shaha¯da min wajh) and that there is ambiguity (shubha) in this respect. On the one hand, it is a shaha¯da because the female witness must be a Muslim and free, she must use the formula “I testify” (ashhadu) in the framework of a judicial procedure, and her testimony is binding (ilza¯m), because the qadi bases his decision on it. On the other hand, it is a khabar because the requirements of gender (female instead of male) and number (one witness instead of two) are waived.117

5. conclusions Examination of the legal discourse on the probative status of experts reveals that the jurists base both the general justification for the use of experts and the determination of the required number of experts on textual (Quran and hadith) as well as analogical grounds. With regard to the Quran, interpreta-

Between a Witness, A Reporter, and a Judge

53

tion of the term ahl al-dhikr as “knowledgeable people” provides support for the call to consult experts. As for the hadith, a number of traditions establish that the Prophet relied on the opinion of one expert. For example, Zayd b. Thabit translated the content of Jewish scriptures for the Prophet; the latter sent Abd Allah b. Rawaha to assess the date crop of al-Khaybar’s Jews; the solitary opinion of Mujazziz al-Mudliji was regarded by the Prophet as sufficient evidence for establishing the paternity of Zayd b. Haritha over Usama b. Zayd; and the Prophet annulled the marriage of Uqba b. Harith and Umm Yahya on the grounds of the testimony of the black slave to the effect that she had breast-fed both. These traditions naturally encouraged the jurists to link expert testimony to the transmission of hadith and to the deliverance of reports on worshiprelated issues. This linkage was made on the basis of the identical probative relaxation. In all three cases—hadith transmission, reporting on worship-related issues, and expert witnessing—it is permitted, on the basis of particular traditions referring to each case, to rely on a solitary report or testimony, although the ideal situation is to have as many reporters as possible. Considerations of necessity may be the logical common denominator for the relaxation of probative requirements in the three cases. As for hadith transmission, the fear of losing binding Prophetic dictums and the absence of an alternative encouraged the validation of solitary traditions. In religious matters, since worshiping God is a duty of believers, the fear of prejudicing God’s rights required the easing of probative demands. Finally, with regard to expert witnessing, it was often practically impossible to find two qualified and upright experts for each legal suit. I must emphasize, however, that I have not found this common denominator presented in this explicit way in the legal literature, so it remains my own speculation. Finding textual support—in the Quran and especially in the hadith—for the sufficiency of one expert may have made further deliberation on this topic redundant, because these textual sources are the strongest sources of the law (us.u¯l al-fiqh). But the existence of contradictory traditions and perhaps the desire of the jurists to increase theoretical consistency in this topic led them to search for logical justifications (by way of analogy, qiya¯s) for the probative status of the expert. To this end, they made use of the differences between the transmission of hadith, on the one hand, and court testimony, on the other. Since expert testimony was conceived of by the jurists as falling between the two, they tried to find, for each type of expert, the similarities to both hadith transmission and court testimony. If they found that the similarity to hadith reporting was stronger, they concluded that one expert was sufficient; if the

54

Chapter One

similarity to court testimony was stronger, they concluded that two experts were needed. In a few cases, as in the case of the divider and the physiognomist, the jurists found that the strongest similarity was neither to a hadith reporter nor to a court witness but rather to a judge (h.a¯kim), thereby permitting the reliance on one. As a generalization, it seems that the more prevalent juristic position holds that the expert is a witness. A physician’s report on the “age” of physical defects found by the buyer in his recently bought slave may serve as a good example. The Hanafis, Malikis, and Hanbalis all held that reports by two physicians are a condition for the annulment of the sale contract; the Malikis and Hanbalis permitted reliance on a report of one physician only if two were unavailable.118 Many of the jurists who concluded that the expert is in principle a witness held that, in exceptional cases, necessity (d.aru¯ra) justifies the mitigation of probative requirements by relying on a single expert, on experts of dubious prestige, and even on non-Muslim experts. This necessity was created by the difficulty in finding in every geographical area quality experts in the quantity that would satisfy judicial needs. These jurists, being sensitive to practical considerations, were aware that insistence on two experts for each lawsuit had the potential of stifling the judicial system and preventing it from producing effective justice. A similar commitment on the part of the jurists to encouraging smooth handling of vital economic and commercial activities is attested by their relaxation of other probative demands.119 At the same time, those jurists who concluded that one expert is in principle sufficient, as with a hadith reporter and a reporter on religious-related issues, clearly expressed their preference for two or more experts to strengthen the reliability of expert testimony. This position resembles their preference for a hadith transmitted through multiple channels, and for the testimony of a large crowd on the appearance of a new moon. The same principles apply to reports by female experts. Those jurists who classified such a report as khabar were willing to rely on a single female expert, but preferred two or more for achieving higher reliability. Those who considered it a court testimony required two, but were prepared to make a concession by being satisfied with one, on the grounds of necessity—the unavailability of more than one expert—or on moral grounds—that an examination by one female expert rather than two is less embarrassing for the inspected female. A few jurists made the analogical claim that since the standard requirement for the masculinity of the witnesses is waived in the case of female expert testimony, it is permissible to waive the requirement for two witnesses as well.

Between a Witness, A Reporter, and a Judge

55

My findings in this chapter suggest that Brunschvig, by concluding that expert testimony is basically subject to the shaha¯da rules and that relaxation of that standard was motivated by practical judicial considerations, represents the more prevalent opinion among Muslim jurists, whereas the opinions of those jurists cited by Johansen and Fadel are less prevalent. Even Ibn Qayyim al-Jawziyya, a strong supporter of the acceptability of circumstantial evidence, states clearly that reliance on two experts is required for the sake of greater reliability, unless it is impossible to find more than one.120 The similarity found by Fadel between the transmission of hadith and the issuance of a legal opinion, on the one hand, and expert opinion, on the other, all three being normative, nonpolitical, and therefore objective, requires qualification. Expert opinion forms the basis for a judicial decision that is personal, binding, and immediately effective, whereas a hadith targets the entire Muslim community and a legal opinion is consultative in character and not judicially binding. Moreover, a wrong or fabricated hadith or a misguided legal opinion will not in the long run cause severe damage to the Muslim community, because they will be balanced by alternative authentic hadiths or correct legal opinions, which will finally direct the community to follow Allah’s will. As the famous hadith says, Allah does not fail the entire community. By contrast, the opinion of a court-appointed expert, if wrong, eventually leads to the loss of legal rights of one of the litigants. In other words, unlike a hadith or a legal opinion, which are purely normative, an expert report, although explicitly normative and objective, is implicitly political, because it supports the position of one of the litigants; consequently, if incorrect, it may cause a qadi to hand down a wrong judgment. This explains why even those jurists who permitted a single expert preferred to have two, in order to achieve greater certainty and avoid as far as possible the danger of infringing on individual legal rights. Drawing on this theoretical basis, the next two chapters discuss the practical operation of expert witnessing in premodern Islamic judicial systems.

chapter two

The Right Hand of Qadis: Male Experts in Judicial Practice

1. introduction In chapter 1 I analyzed the general framework for treating expert witnessing, informed by the rules of witnessing, on the one hand, and reporting, on the other. On the basis of this general framework, various judicial practices of expert witnessing, across time and space, developed. In the present chapter I seek to provide a description, the most detailed possible, of these practices. I emphasize the extent to which Islamic legal systems relied on local knowledge and on the expertise of local craftsmen and artisans, who represented their community’s culture of crafts and commerce and enjoyed the respect of their neighbors. My findings in this chapter concerning judicial practice support my conclusions from chapter 1—namely, that experts were regarded as witnesses rather than as informers. Tyan, the best authority on judicial organization during the premodern period, mentions that among the legal assistants attached to the qadi’s court were (1) professional witnesses or notaries (shuhu¯d udu¯l or udu¯l), who testified on the authenticity of documents registered in front of them, assisted the qadi in issues of procedure and decision making, and performed missions of judicial administration, such as screening witnesses (tazkiya) and candidates for positions for which good morals were required; (2) the muzzakı¯, who was entrusted with investigating the character of witnesses; (3) the interpreter, mutarjim, who translated documents and oral testimonies from languages not familiar to the qadi; (4) the qasam (sic) or qa¯sim, an official in charge of supervising the division and apportioning of goods; (5) the amı¯n al-h.ukm, who supervised and administered the property of orphans; and (6) additional

The Right Hand of Qadis

57

aids—such as the bawwa¯b, the jalwaz, and the awn—who maintained order in the court and protected the personal security of the qadi.1 Tyan does not mention expert witnesses among these legal assistants, nor does Hallaq in his recent chapter on the early qadis.2 Although the patterns of using experts in Islamic legal systems differed across time and space, it seems that, unlike the regular court personnel, expert witnesses—practitioners of various professions—were summoned to the courts only in cases in which their services were needed.3 For example, in Ottoman Egypt both the notaries and the deputies of the Hanafi qadi (nuwwa¯b, sg. na¯ib, who represented the other Sunni schools of law) conducted criminal and medical investigations, including the inspection of bodies, on behalf of the qadi and wrote reports.4 In case of the need for an expert’s testimony, and if the inspection could take place in the court itself, the qadi summoned the expert or experts to the court. In cases in which the inspection had to take place out of court, the notaries or the deputies summoned the experts to the location of the event. Most of the experts who assisted the qadi in this way were heads or members of guilds (shuyu¯kh al-t.awa¯if; ad.a¯ al-t.awa¯if al-h.irafiyya). The qadis contracted and paid for their services as needed.5 That qadis summoned guild heads and guild members to testify in court as expert witnesses is supported by evidence included in the present chapter. Another potential reservoir of experts for the qadis to draw on might have been the assistants of the muh.tasib. According to h.isba literature, the muh.tasib was entitled to nominate a reliable expert (arı¯f, pl. urafa¯) from the practitioners of each profession. The arı¯f supervised the functioning of his colleagues and reported to the muh.tasib about their affairs, the merchandise brought to their markets and their prices, and other issues of interest, such as frauds committed by them.6 It is likely that qadis summoned those urafa¯ to testify as expert witnesses in times of need. Possible confirmation of this is found in Morocco, where the masters (umana¯) of the various market crafts, who were directly in touch with the muh.tasib, functioned also as court experts when their services were required, carrying the title urafa¯. They delivered their opinions orally to the qadi, and the notaries committed their reports to writing.7

2. procedures for using expert witnesses What were the qualifications required of expert witnesses, and how were they selected? The legal literature generally requires of an expert that he be proficient in his trade, in addition to being trustworthy and reliable, which are

58

Chapter Two

the standard requirements from any witness.8 However, the literature does not discuss any formal procedure for establishing a person’s expertise or for selecting an expert from the available reservoir of a particular town or locality. In one place it is indicated that the physiognomist (qa¯if ), the expert for deciding the blood relationship between persons on the basis of physical similarity, should be experienced on the grounds of the Prophetic hadith: “Only the experienced can be wise” (la¯ h.akı¯m illa¯ dhu¯ tajriba).9 The way to test the physiognomist’s expertise was to present to him a certain child surrounded by women, excluding his mother, three times, and then to present him the same child within a group of women including the child’s mother. If he was correct in his indication in each of the four presentations, he was considered an expert.10 Did the qadi summon the expert witnesses to the court, which would render the experts the qadi’s advisers, or did the litigants summon the experts, with the latter serving as partisan witnesses? In the inquisitorial Roman court system, it was the courts that summoned the experts, and the expert’s opinion was final and not subject to appeal. By contrast, in Jewish law the expert was one of the judges (dayyan, pl. dayyanim). His role was to establish the facts in the field of his expertise. The legal consequences of these facts were, however, decided by all the members of the court (or by a cohen in issues relating to purity). A second, less common, option for the ancient Jewish court was to use experts as witnesses. An expert who operated as a witness and not as a member of the court was paid for his services.11 In the British common-law system of the premodern era (from the thirteenth to the early eighteenth century), the court developed two main procedural options for using experts. The first and seemingly most common option was to call them as jurors, which has some similarity to the above-mentioned Jewish practice.12 The second option was for the court to nominate them as consultants whose advice the court or the jury could adopt or not as they pleased. There was also a third option, which was for the parties to call them as witnesses testifying on their behalf. This third practice became increasingly common in civil lawsuits in Tudor, and later Stuart, England. However, experts testifying as witnesses were not regarded as a distinct legal entity. There was no special procedure for defining witnesses as experts, as was the case with court experts or those serving in expert juries. In the absence of such a procedure, they were regarded and treated merely as witnesses.13 Islamic legal literature instructs qadis to consult experts when they need professional advice that is not part of the common legal knowledge. It seems that in cases of public law application, it was the qadi, the representative of

The Right Hand of Qadis

59

state authority, who summoned the experts—for example, in a case in which it was necessary to determine whether the value of a stolen good was above the minimum sum (nis.a¯b) required for h.add application. In private lawsuits, however, it appears that the options of the experts as either the qadi’s advisers or partisan witnesses were both practiced. Although fiqh literature more frequently mentions the first option, I am not able to say definitely which option was more common in practice. The availability of the option to use experts as partisan witnesses is attested by the fact that legal literature deals with cases of conflict between the seller’s and the buyer’s experts.14 The Maliki mufti Ibn Attab (from Cordova; d. 1126)15 was asked about a person who bought a she-mule in Toledo and rode on it to Valencia. After a month or two, he discovered defects in the mule and brought evidence (probably by veterinarians) before the local qadi to the effect that the defects existed in the mule before the time of the sale. The qadi of Valencia handed down a decision in his favor (probably that he was entitled to return the mule to the seller and get his money back or be compensated). The decision was sent to the qadi of Toledo, who sent a notice to the seller (adhara ila¯) to appear personally in court to make a statement on the plaintiff ’s claim and evidence. The seller reacted by producing two veterinarians (ata¯ bi-sha¯hidayn min al-baya¯t.ira), who testified that they had been present when the sale contract was concluded and that the mule did not suffer from these defects at that time. The mufti was asked which of the two sets of experts (those of the seller or those of the buyer) should be preferred. The response of the mufti, which presents a conflict of opinion among Maliki jurists, is not relevant to the current discussion,16 the important point here being that each of the conflicting parties could produce his own expert testimony to support his version of the facts. Conflict of opinion among experts has been a source of concern, because it may jeopardize the credibility of experts and interrupt the smooth unfolding of the judicial process. The Maliki Tulaytuli express this concern implicitly by ruling that if the experts are in dispute as to whether the defect is “old” or “new” or whether the slave has to be returned to the seller, the qadi should not rule on the return of the slave to the seller, because the expert opinions are contradictory (taka¯dhı¯b).17 Other Malikis refer to contradictory opinions of construction experts regarding defects in buildings.18 In a case in which the experts of a house buyer argue that the walls are cracked and prone to collapse and that the cracks were created prior to the sale, while the seller’s experts argue that the walls are safe and the cracks do not present any hazard to the buyer, the Maliki Ibn Attab holds that the qadi should act on the evidence that is more just (al-qad.a¯ fı¯ dhalik bi-adal al-bayyinatayn). It is not speci-

60

Chapter Two

fied, however, what the criteria for justness are in this case. The fourteenthcentury Tunisian jurist and qadi Ibn al-Qattan holds that the qadi should act on the opinion of the buyer’s experts. This opinion, as well as the Shafii and the Hanbali opinions, is based on the standard evidentiary rule that since the presumption works for the seller (namely, that the merchandise was intact), the buyer’s evidence should be preferred.19 According to the same logic, if the dispute among the construction experts concerns the “age” of the defects, the preponderant Maliki opinion and also judicial practice are to prefer the opinion holding that the defect is new, unless and until the contrary is established, while the minority opinion of Ibn Sahnun (d. 869) is to accept the opinion according to which the defect is old. The Tunisian jurist and qadi Ibn Abd al-Rafi (d. 1332 or 1334) holds that if expert opinion to the effect that the defect is recent is inconclusive, the qadi should make the seller swear an oath before judging in his favor.20 The remainder of this chapter comprises three main sections and the conclusion. In the first section, I shed light on the involvement of expert witnesses in daily economic life, focusing on legal disputes associated with the production process of the market and with other needs related to economic activity, such as evaluating the price of goods and properties and the partition of estates and partnerships. In the second and third sections, I focus on two specific groups of experts about whom the information is richer than it is about other experts: (1) experts in the human body (and also that of animals)—namely, physicians, veterinarians, and slave dealers; and (2) construction experts—such as builders (bana¯u¯n) and architects (muhandisu¯n).

3. expert witnesses in economic disputes Market life required, inter alia, an “objective” weighing of goods. The expert in weighing was the kayya¯l or wazza¯n. Since his reliability was based on his personal expertise, there was an acceptable range of difference in judging among the different weighers.21 The Shafii Damascene jurist Muhyi al-Din al-Nawawi (d. 1277), referring to whether the weigher’s salary should be paid by the state (from the charity tax) or by the people who hire him for work, prefers the second option.22 Claims to the effect that the money used in a commercial transaction was forged required the expertise of the money changer (na¯qid; s.arra¯f ).23 In the course of daily family and business life, people often swore oaths, pronounced acknowledgments, concluded written contracts, and signed documents. The

The Right Hand of Qadis

61

meaning of verbal expressions had to be interpreted according to customary local usage, which sometimes required the qadi (who might have come from a different area) to consult language experts,24 as well as handwriting experts, in cases in which people denied their handwriting or signature on documents25 or in the context of a written communication between qadis (kita¯b al-qa¯d.¯ı ila¯ al-qa¯d.¯ı ): if the receiving qadi could not identify the handwriting of the sending qadi, he had to procure two experts in handwritten documents who also were acquainted with the handwriting of the qadi in question. Once the qadi verified, independently or through expert witnesses, the authenticity of the document, he had to implement its contents.26 The qadi sometimes consulted experts in the distance between places and in the time needed to cross a certain distance—for example, in a case in which he granted the marriageguardian a time extension to return from his place of abode in order to marry off his ward.27 The practitioners of each profession decided the level of knowledge and experience required for being regarded as an expert in that profession. For example, when Abu Hanifa and his students refer to the examinations that a hunter has to go through to be considered an expert, he requires that hunting experts (ahl al-ilm min al-s.ayya¯din) be consulted.28 To hand down decisions in disputes between customers and artisans, the courts needed the expertise of the artisans in each profession. The Hanafi jurist al-Sarakhsi (d. 1097) discusses the case of a customer who brings a certain amount of weaving thread to a weaver (nassa¯j) and asks him to prepare from it a certain linen sheet or cloth. The weaver tells him that the amount of thread he has brought (one mann, equals two rat.l) is not enough for preparing the required product. They agree that the tailor will supply the additional amount of raw material from his own source and will add its cost to the total cost of the work, to be paid by the customer upon delivery of the cloth. After termination of the work, the weight of the product is two mann. The tailor argues that the additional weight of one mann is due to the addition of one rat.l of raw material from his own sources, and that the remaining rat.l was the weight of the sewing thread (daqı¯q). The customer, however, argues that the additional weight is that of the sewing thread and therefore refuses to pay for any addition of raw material. To solve the problem, Sarakhsi recommends that the qadi consult expert tailors (al-ulama¯ nin al-h.awka). If they testify that the sewing thread could not be the sole reason for the additional weight of the product, the version of the tailor is accepted together with his oath. If they say that it could, the version of the customer is accepted. Sarakhsi concludes by saying that whenever

62

Chapter Two

a qadi feels uncertain concerning a specific professional problem, he should consult the experts in that profession (ma¯ ishtabaha ala¯ al-qa¯d.¯ı fa-innahu ma¯ yarjiu fı¯ marifatihi ila¯ man lahu bas.ar fı¯ dha¯lika al-ba¯b).29 The same principle applies if the customer asks the tailor to prepare for him a good-quality cloth and upon delivery of the product finds that the cloth’s quality is poor; or when the linen dyer (sabba¯gh) and the customer argue about the amount of dye that the dyer used for dyeing a cloth.30 In a case from 1617, the official in charge of the dockyards in Bulaq, Cairo, summoned the court notaries to the dockyards and complained that the quality of the ropes supplied by the head of the rope manufacturers’ guild (ra¯yis h.awa¯la al-h.iba¯l) was below the customary standard. The notaries had “a group of expert and knowledgeable rope makers” ( jama¯at min al-h.abba¯lı¯n ahl alkhibra wal-marifa) inspect the ropes and then return to the court to report their findings to the qadi.31 The qadis needed agricultural experts for disputes concerning the quality of agricultural products. Ibn Taymiyya is asked about a person who bought seeds of wheat and after he sowed them found that they (or the sprouts) were rotten. The buyer demands that the seller compensate him by paying the land tax in his place. Ibn Taymiyya answers that if experts confirm that rotten seeds cannot produce healthy sprouts, while in the disputed case the sprouts looked fine at the beginning and got rotten only later, then this confirmation may serve as evidence in favor of the seller.32 The experts of each profession represented the ethics of that profession. Consider a case in which the customer brings a loaf of dough to the baker, who forgets it in his oven and burns it; or a teacher who beat his student to chastise him and the student dies of his injuries. In both cases it is for the experts of each profession to testify whether the practitioner exceeded the norms of his profession (muja¯wazat al-h.add). If they testify that he had, he must compensate the offended party.33 Expert knowledge of the manufacturing process for each profession was essential for deciding ownership disputes between s.a¯h.ib al-yad, the one who has actual possession of the property and uses it, and al-kha¯rij, the one who comes up with an evidenced claim that he is the owner of the same property. If both parties present evidence to the effect that the source of their ownership is the manufacturing of the object (nita¯j), and the manufacturing process of the disputed item is such that it cannot repeat itself (la yatakarrar sababuhu), the version of s.a¯h.ib al-yad is preferred. If, on the other hand, the manufacturing process can repeat itself, the version of al-kha¯rij is preferred. The qadi should therefore consult experts as to the manufacturing process. For example, if the

The Right Hand of Qadis

63

disputed object is a sword, the qadi should consult polishing experts (ulama¯ al-s.aya¯qila) as to whether the sword is of the type that can be manufactured only once ( yud.rab marra wa¯h.ida) or of the type that can be remanufactured (by melting the steel and shaping a new sword from it).34 The qadi needed information on the manufacturing process also in cases in which the artisan’s work is terminated in the midst of the manufacturing process due to an external cause—for example, the destruction of a wall in the midst of its construction. If the construction contract does not condition payment upon the delivery of the good, the constructor is entitled to be paid for that part of the job he succeeded in completing. The qadi should ask construction experts to determine the percentage of work completed before the destruction of the wall, and rule accordingly on the payment due to the constructor ( yuraf tawzı¯  al-ujra bi-qawl ahl al-khibra).35 Moving to assessors and dividers, the role of the assessor (muqawwim) is to evaluate the worth of properties, which is needed in cases of sale and rental and the partition of partnerships. He is also responsible for evaluating the decrease in the value of property and merchandise as a result of damage (qiyam al-mutlafa¯t ).36 The divider (qa¯sim) is an expert in the distribution of inherited legacies and partnerships.37 The term muqawwim (and also qa¯sim) covers a variety of artisans and traders. For example, an assessor who specializes in the valuation of immovable property (such as land) is probably a land dealer, while an assessor who specializes in the valuation of movable property (such as rice or textile) is likely to be a merchant in the market. Indeed, the Hanafi Ibn Abidin (d. 1836), discussing the role of the assessor, states that he is one who practices the relevant profession (al-muqawwim al-ahl fı¯ kull h.irfa).38 This is also attested by historical sources from Ottoman Egypt, according to which the courts consulted the members of the various guilds concerning the worth of legacies and their distribution among the heirs, dependent on the type of items in the legacy. The experts consulted received a certain percentage of the legacy.39 Generally, the role of the assessor was essential to the functioning of economic life, including the legal aspects associated with it, because he represented the unwritten customary practices of the merchants concerning the manufacturing process and the value of properties and goods.40 In legal literature, the role of the assessor in valuing immovable property appears in various judicial scenarios—an example being in the context of a claim that the price of the contracted rent of waqf property is significantly below the market price (ghabn fa¯h.ish). If an expert verifies the claim, the qadi annuls the rental contract, unless a sum is paid in addition to the contracted rent.41 Additional contexts are a claim against a proxy that the price he paid

64

Chapter Two

for a property he bought for his client was far above the market price;42 a dispute between partners about the value of their joint property in the context of the partition of the partnership;43 or the need to determine whether the value of a stolen item exceeds the minimum (nis.a¯b) required for the application of the h.add punishment—that is, amputation.44 Collections of legal formularies contain documents of such judicial procedures. In one work, Nihayat al-Arab fi Funun al-Adab, written by Nuwayri (d. 1333) in Mamluk Egypt, the property guardian asks the qadi for permission to sell landed property of his orphaned ward in order to use the proceeds for payment of the orphan’s maintenance and other needs. The qadi sends land experts, who have to check the property and testify before the court that the price mentioned by the guardian reflects the market value of the property.45 In a second example, the partners wish to sell their landed property to their neighbor. The qadi sends land experts, who inspect the property and consequently sign a document in which they state that the property is divisible (and determine the amount to be paid to each of the partners).46 Evaluating the decrease in the price of defective or damaged property was also an important role of the assessor. The Hanafi Sarakhsi explains that there is among merchants a legitimate gap between the minimal and maximal price of each good. If a decrease in the price of a product due to a defect in it brings the price below the legitimate range (ma¯ la yadkhulu tah.ta taqwı¯m almuqawwimı¯n fil-aswa¯q), then the defect is considered grave ( fa¯h.ish). If the price still falls within the legitimate range, then the defect is considered minor ( yası¯r).47 In a mid-twentieth-century case from Yemen, the governor of Ibb asked two prominent Adeni merchants to investigate a defect in a large quantity of coffee, and their subsequent report figured prominently in the sharia case and in the ruling.48 The decrease in the price of a product or property may result from its excessive use by the one who rents it. Take for example a case in which a person contracts the renting of a horse or a bull to carry luggage from one place to another but later asks to put a rider on the beast, the weight of whom does not exceed the weight of the luggage. The experts, renters of beasts (akriya¯), should be consulted. If they say that the harm to the beast will be worse in the case of the rider than in the case of the luggage, then it is forbidden for the renter to use it for riding, and vice versa.49 The qadi should consult with animal experts also in cases in which a rented beast is injured and there is a need to determine whether the injury is due to excessive use of it by the renter.50 Responsa literature refers also to cases in which camel experts are consulted on such questions as the price of a camel’s fur or the price of a camel’s rent.51

The Right Hand of Qadis

65

In the case of a collision between two ships that brings about their sinking, nautical experts should determine whether the collision was deliberate and, consequently, which of the captains bears responsibility for the loss of life and property.52 In Ottoman Istanbul, a shipowner, as a result of a navigational error, wrecked the roof of a dockyard and was sued for damages by the official in charge. The defendant argued that the wind was so strong that the ship was uncontrollable, and hence he was not liable for damages. Two witnesses possessing expertise in matters relating to the sea were summoned and said that the wind was not strong enough to justify the defendant. Then other witnesses, experts in the building industry, assessed the extent of the damage caused.53 In the case of a fire that spreads and causes loss of life and/or property, experts testify whether the spread was caused by the negligence of the person who lit it or by unexpected causes (such as a sudden wind).54 A special type of assessor was al-kha¯ris. (pl. khurra¯s.; ahl al-khars.). His role was to estimate the quantity of dates or grapes while they were still on the tree or vine. This early estimation for tax purposes was required to enable the owners to use the fruit either for consumption or for sale. The historical and legal precedent for this procedure was set by the Prophet, who, following the conquest of Khaybar, sent Abd Allah b. Rawaha to estimate the quantity of dates on the palm trees previously owned by the Jews. This estimation was required for tax purposes, since the Jews had to hand over half the crop to the Muslims. It is likely that the use of ahl al-khars. continued after the Prophet’s time and spread outside Arabia. Legal literature refers to cases in which the taxpayers argue that the estimation was excessive and therefore disadvantageous to them. The Shafiis, who trust the estimation of al-kha¯ris., hold that the burden of proof rests on anyone who makes a claim against the assessment. The Hanafis, in contrast, entirely reject this concept of assessment and argue that since it is only an estimation, there is no obligation to hand down a binding ruling on its basis. They therefore hold that it is the kha¯ris. who is responsible for providing evidence as to the accuracy of his estimation in cases in which a claim is filed against him.55 The evaluation of properties was often a preliminary procedure leading to the partition of these properties, in the context of either inheritance or the dismemberment of partnerships. In cases of inheritance, after the qadi has prescribed the relative shares of all the heirs, the divider (qa¯sim) comes in to execute the actual division of the legacy.56 The manuals of legal formularies contain various documents on partitions (qismat ifra¯z; qismat al-tadı¯l; qismat al-radd; qismat qura) relating to privately owned properties (mulk) and waqf.57 It seems that the same person often acted both as an assessor and

66

Chapter Two

as a divider. The Shafii Nawawi mentions that the divider has to be knowledgeable in measuring lands (mash.; masa¯h.a) and in arithmetic (h.isa¯b), and that some kinds of partitions also require the knowledge of assessment.58 One formulary that appears in the work of the Shafii Shams al-Din al-Asyuti (or: Suyuti; Egyptian, d. 1475) indicates that experts knowledgeable in land and its prices conduct the partition.59 In legal literature, the assessor and the divider are included in the list of official functionaries whose salaries are paid by the state treasury, along with the ruler, the qadi, the mufti, the muh.tasib, the imam of prayer, the muadhdhin, the Quran teacher, the one responsible for the application of the h.udu¯d, and the writer of official documents.60 The formularies manual of al-Asyuti includes a document in which the qadi dispatches the divider to his mission. In those cases in which the divider is commissioned by the qadi,61 his wages have to be paid by the treasury, because his mission in the service of the judge prevents him from proceeding with his daily occupations. If it is impossible to pay him in that way, the partners or the heirs have to pay his wages.62 This is also the case when the heirs or the partners nominate the divider as an arbitrator.63

4. physicians The scholarly literature on the history of medicine in central Muslim lands during the pre-Ottoman period is immense. This literature is characterized by conflicting narratives with regard to such topics as the training of physicians (inside or outside the madrasa; the standard curriculum; diplomas; degrees), the nature of medical activities in hospitals, and the enforcement of minimum professional standards in the practice of medicine, either by the muh.tasib or by guilds.64 This is not the proper place to discuss all these controversies. With regard to the Ottoman period, physicians were trained in the classical Muslim tradition of master-apprentice and received their practical training in hospitals. The establishment of a special madrasa for medical studies by Sultan Suleiman the Magnificent in the Suleimaniya mosque complex institutionalized the training of physicians for the first time. The earliest contacts between the Ottomans and European medicine occurred during the Renaissance period, by way of European personal physicians of the sultans; Jewish physicians who had been deported from France and Spain during the fourteenth and the fifteenth centuries and found refuge in Ottoman territories; and Greek physicians who were Ottoman citizens and studied in Italian universities during the seventeenth century.65 In what follows, I focus

The Right Hand of Qadis

67

on the various judicial contexts in which physicians were involved as expert witnesses. The duty of a physician who commits malpractice to compensate his patient (that is, pay “guarantee,” d.ama¯n) is recognized both in the fiqh and in modern medical-legal discourse. The jurists, however, deliberate this issue, fearing that physicians will refuse to treat patients unless they are sure about the outcome of the treatment. They are also aware that medical mistakes contribute to the progress of medical science. They therefore hold that only negligent physicians shall be punished, not those who intend good but err.66 Ottoman law courts sought the advice of physicians (at.ibba¯, sg. t.abı¯b; h.ukama¯, sg. h.akı¯m) for malpractice suits. For example, in 1644 the qadi of Jerusalem consulted a master surgeon regarding a malpractice suit filed against a Jewish colleague who had conducted a circumcision. On the basis of the expert’s testimony, the qadi forbade the negligent physician to continue practicing medicine. In another case, after consulting with experts, the Ottoman qadi of Jerusalem turned down a malpractice suit against a surgeon who had conducted an operation.67 In the field of worship, the legal literature discusses the issue of sick Muslims who argue that due to their malady, they are not able to perform religious rituals properly. For example, a Muslim claims that he cannot stand during his prayers or that the use of water for ablution is damaging to his skin. In the context of the tenet of fasting, a Muslim may claim that if he fasts there is a danger that his disease will worsen or that his recovery will be slowed, or that damage will be caused to one of his organs. The Hanafi jurists hold that any release from religious duty or diminution of the duty (such as permission to pray while lying down or to break the fast and resume it at some other time) should be based on high probability (ghalabat al-z.ann) concerning the resulting damage. This probability is determined in one of three ways: (1) the existence of an external bodily sign (ima¯ra) of the disease; (2) an accumulated experience (tajriba) as to the effects of such disease; (3) the opinion of a reliable, God-fearing, Muslim expert physician (ikhba¯r t.abı¯b h.a¯dhiq Muslim ghayr z.a¯hir al-fisq).68 The same is true for a weaning mother who fears that fasting will endanger her health or that of her baby.69 Is it permitted for a sick person to follow the instructions of his physician in consuming prohibited foods, or medicines created from prohibited ingredients (al-tada¯wı¯ bil-mah.ram), such as pork, snake, hedgehog, frog, the corpse of any animal, urine, blood, or wine? The jurists are in dispute: some say it is permitted if a physician testifies that it is essential for the sick person’s recovery and that there are no substitutes made from permitted ma-

68

Chapter Two

terials; others say it is not prohibited, arguing that Allah would never cause his community to be cured by prohibited materials.70 It is worth mentioning that the same questions, as well as similar answers, appear in current religiolegal discourse.71 Moving to issues of personal status, the fiqh maintains that a child follows one of his parents to Islam if that parent converts to Islam while the child is a minor (s.aghı¯r). If the parent brings evidence to the effect that his child was still a minor at the time of the conversion, while the child brings contradictory evidence, the qadi should direct that the child be inspected by experts to establish whether he was a major (ba¯ligh) or a minor at the time of his parent’s conversion.72 The Shafii jurist Ibn H . ajar al-Haytami (born in Egypt; d. 1567 in Mecca) is asked about a wife who argues that her marriage is irregular, since she is a minor, while her husband argues that she is a major and that she menstruates. The mufti responds that if the experts decisively determine, on the basis of indicators and signs (qara¯in wa-ima¯ra¯t) known to them, that the blood secreted by the wife is menstrual blood, their testimony is accepted, even if they do not specify what these indicators are.73 The involvement of physicians as expert witnesses appears in the context of marital issues as well. For example, before the marriage of a lunatic (majnu¯n) male or female takes place, the jurists prescribe that the opinion of physicians should be obtained on whether this marriage is beneficial to the lunatic.74 A severe disease, such as leprosy (baras.) or elephantiasis ( judha¯m), is a ground for the dissolution of a marriage. If someone argues that his or her spouse is afflicted with such a disease, but the latter denies it, the plaintiff ’s version is accepted if supported by the testimonies of experts to the effect that the disease is chronic.75 The Tunisian Maliki mufti al-Burzuli (d. 1438) quotes a question directed to the distinguished Maliki jurist al-Mazari (d. 1141), in which it was indicated that two physicians, one of them a non-Muslim, testified that the husband undoubtedly suffered from leprosy. Al-Mazari responds that there is a way to obtain a proof concerning the disease that is far more decisive than the testimony of such a suspect non-Muslim expert: the qadi should instruct the notaries (rather than a physician) to inspect the bruises. If they do not smell bad and if, when touched with a needle, their color changes to red and they start to bleed, then the husband certainly does not have leprosy.76 This opinion is interesting in that it implicitly casts doubts on the professional expertise of physicians. If a husband argues that a malady or defect exists in a hidden part of his wife’s body, female experts have to inspect her.77 The Shafii Nawawi men-

The Right Hand of Qadis

69

tions insanity as a ground for dissolution, and discusses the consultation with medical experts on the question of whether this malady is temporary or permanent. Since the permanence of insanity is more probable, he holds that the qadi should grant dissolution whenever a person claims the detection of signs of insanity in his or her spouse.78 One of the commonest problems associated with the slave trade which necessitated the involvement of physicians was physical defects or diseases that a slave had before being transmitted to the unknowing buyer, who discovered them only after he took possession of the slave. According to the Hanafi, Maliki, and Shafii schools, in such a situation the buyer has “the option of defect” (khiya¯r al-ayb), which entitles him to choose between two options: (1) annulling ( faskh) the sale contract, returning the slave to the seller (al-radd bil-ayb) and getting his money back; (2) keeping the slave. The Hanbalis add a third option: the buyer keeps the slave and is compensated by the seller for the devaluation in the slave’s price (this compensation is called arsh al-ayb). The buyer of any commodity has the option of annulment only if the defect is considerable (mutabar). A considerable defect should meet two criteria: (1) it is assumed that the type of property to which the sale object belongs should be clean of defects; (2) the defect causes a considerable decrease in the object’s price or makes the object unsuitable for the purpose for which it was purchased. The legal literature determines that the experts who specialize in the type of property to which the sale object belongs, and are familiar with the customs of each profession or manufacturing process, are the ones authorized to determine if these two criteria are met in each disputed case.79 The practicality of this topic is attested by works of applied law and collections of legal formularies that discuss lists of diseases and disabilities considered defects in slaves according to customary practices—that is, the practice of slave dealers (urf al-tujja¯r).80 Two types of professionals were involved in deciding the legal consequences of maladies or disabilities in slaves: physicians, who inspected the slaves and testified about their medical findings (midwives inspected defects in intimate parts of female slaves’ bodies); and slave dealers (tujja¯r al-raqı¯q; nakhkha¯s al-raqı¯q), who were experts in the market value of slaves and therefore evaluated for the qadi the monetary consequences of each and every malady or disability. The legal formularies document such medical inspections. In one such formulary, appearing in the work of the Andalusian Maliki al-Tulaytuli (d. 1067) and titled “a document concerning carrying out [an inspection of ] a defect” (wathı¯qat qiya¯m bi-ayb), the experts testify that the buyer introduced to them a male slave (or a female slave or a beast) and asked them to inspect

70 Chapter Two

his defects. They testify that they found defects whose origin predated the sale, and they therefore conclude that such defects justify returning the slave to the seller.81 A second formulary from the same source, titled “a document concerning clearing [the seller] from [his] responsibility for a defect subsequent to the conclusion of the transaction” (wathı¯qat bi-tabarrin min ayb bad al-s.afqa), is written at the buyer’s initiative. After he has bought the slave, paid for him, and transferred him to his possession, the seller informs him about a defect in the slave and gives him the choice between keeping the slave, in return for monetary compensation for the defect, and returning the slave. The buyer has the slave inspected by experts (ahl al-bas.ar), who discover the defect; he then chooses to keep the slave in return for compensation.82 According to the Hanafi Sarakhsi, if two trustworthy physicians testify that the defect must have existed before the transmission of the slave to the buyer, the qadi should annul the sale on the basis of their opinion. If, to the contrary, they say that the defect might have developed after the transmission of the slave to the buyer, and the seller swears that the defect did not exist when the slave was in his possession, the qadi should rule on the validity of the sale.83 The responsa literature refers to this topic as well. In Ibn Rushd’s collection we find a question about a person who bought a black female slave. Upon the conclusion of the sale contract, the seller exempted himself from responsibility for the various diseases from which he admitted the slave was suffering: anemia (nuqs.a¯n dam), diarrhea (it.la¯q), coughing (sua¯l ), and chronic stomachache. The slave lived in the possession of her new owner for five months and then died. When her body was washed prior to burial, a severe burn (kayy fa¯h.ish) on her stomach was discovered. The Maliki mufti Asbagh b. Muhammad (d. 839) responds that the qadi should instruct the reliable (al-thiqa¯t) experts to inspect the corpse. If they testify that the burn is older than the date of the sale contract, the seller should compensate the buyer for the devaluation of the slave’s price.84 The responsa collection of the Egyptian chief mufti, the Hanafi Muhammad al-Abbasi al-Mahdi (d. 1897), includes several references to the same topic.85 Sharia court records from Ottoman Egypt likewise contain evidence of the role of physicians in inspecting defects and maladies in slaves. In one case, from the mid-eighteenth century, it was claimed by the buyer of a white female slave that she was suffering from intermittent lunacy that had originated prior to her sale. The qadi summoned the chief physician (h.akı¯m ba¯sh bi l-Diya¯r al-Mis.riyya) and also the daughter of the chief physician of al-Bimaristan alMansuri. Both inspected the slave and verified the claim, and the qadi ruled accordingly.86

The Right Hand of Qadis

71

The division of roles between physicians and slave dealers in these matters was not clear-cut, and there was an overlap in everyday practice. As can be seen from the formulary found in al-Tulaytuli’s work (see above), the physicians who inspect the slave testify that the defects they found necessitate the return of the slave to the buyer. In other words, they both report on their medical findings and advise the qadi on the legal consequences of such findings. The Maliki jurist Ibn Farhun (d. 1397), who was a qadi in Medina, supports the objection of his predecessor, Ibn Sahl, a jurist and qadi in Cordova (d. 1093), to such practice, which has received the silent affirmation of other Malikis. According to Ibn Sahl, the physician should limit his testimony to the purely medical findings, and the muftis and qadis should be the ones to determine the legal consequences of the medical findings after they have consulted slave dealers concerning the “value” of each defect.87 This juristic position is similar to that of modern Anglo-American law, according to which experts are barred from testifying on the “ultimate issue.” In other words, modern legal systems are eager to keep the roles of fact-finding and decision making solely in the hands of the lay jury or the judge. As a result, they seek to limit the expert’s role to the provision of information, and prevent him from encroaching on the decision-making role of the jury or the judge. It seems that this separation of roles is as problematic at the present time as it was in premodern periods.88 There were instances in which the valuation of slaves was not in the context of their maladies or defects and therefore involved only slave dealers and not physicians. According to a formulary included in the work of al-Nuwayri (d. 1333), the slave owner makes a declaration that upon his death, his slave will be freed (tadbı¯r), and therefore the slave’s worth should be deducted from the bequeathable third of his property. Subsequent to his demise, experts on the value of slaves determine the price of the slave, and the heirs acknowledge in writing the deduction of the slave’s price from the estate and confirm that the worth of the slave, according to the estimation of the experts, is fair.89 A further example is the evaluation of a murdered slave to determine the value of the blood money (diya).90 The expert opinion of physicians was required also in the realm of penal law. Let us consider first an intentional physical offense that causes either the death of the victim or his wounding. The legal literature mentions that if there is a dispute concerning whether the cause of death is the offender’s assault, physicians should be consulted. The Shafii Nawawi discusses a case in which the witnesses to the assault could not see whether the offended person was already dead when the offender hit his body. If experts say that the blood

72

Chapter Two

spilled by the victim is the blood of a living person (dam h.ay), the guardian of the victim is entitled to blood money; if the experts find that it is the blood of a corpse (dam mayt), the offender’s version is accepted. Nawawi does not refer to the technique by which the experts distinguish between the two types of blood.91 Historical evidence from Ottoman Egypt shows that physicians, surgeons ( jarra¯h.u¯n), corpse washers (mughassilu¯n; ghassa¯lu¯n), and even the court notaries inspected the bodies of people who died under criminal circumstances and reported to the qadi on the wounds found on the body and the causes of death.92 Intentional physical offenses causing injuries may be retaliated physically (qis.a¯s. fı¯ma¯ du¯n al-nafs), according to the Quranic principle (5:45) of “an eye for an eye.” This applies only to those cases in which the exacting of retaliation is possible—where injury can be inflicted in exactly the same area, without risking the life of the offender and without causing him graver harm than that he inflicted on the offended person. The Maliki jurists adopt this opinion on the grounds of a report according to which the Prophet waived retaliation in cases of specific head injuries, splintered bones, and injury to facial and other cavities. Malik extends the interpretation of that tradition to include additional fatal injuries, such as to the neck bones and the spine, and in cases of partial loss of sight or hearing, where an exact similarity in retaliation cannot be maintained. In general, the jurists dispute which kinds of fractures enable the exacting of similar retaliation and which do not.93 The role of physicians in exacting retaliation has been important; the qadi consulted them and other wound experts (ahl al-t.ibb wal-marifa bil-jira¯h.) concerning the length, width, and depth of the wound and the possibility of exacting similar retaliation. One finds legal formularies of such consultations, in which the offended person brings to court a group of wound experts ( jama¯a min ahl al-marifa wal-khibra bil-jira¯h.a¯t) to testify about the nature of his injury.94 If the qadi decided that exact retaliation was possible, it was the physicians, and not the offended person, who had to carry it out.95 If the offense is not intentional (khata), or if exact retaliation is impossible, physicians should determine the severity of the wound as a preliminary step for fixing the right amount of monetary compensation. One option for compensation is to resort to the tariff lists for standard injuries located in law books (this type is called diya or arsh; arsh al-jina¯ya; aru¯sh al-jina¯ya¯t; aru¯sh al-jira¯h.a¯t). The second option, h.uku¯mat adl, is based not on the tariff but on an assessment of the disability caused by the injury in any particular case.96 Like the process of evaluating the worth of physical injuries in slaves

The Right Hand of Qadis

73

(see above), the evaluation of h.uku¯mat adl involved both physicians and slave dealers. One finds legal formularies of disputes between the offender and the offended concerning the severity of the injury. First, the qadi summons physicians to define the sort of injury. Following that, the qadi summons experts for determining the value of bodily defects (arba¯b al-khibra bi-taqwı¯m al-abda¯n, probably slave dealers) and instructs them to evaluate the price of the victim (as if he were a slave) before and after his injury. The difference between the two is the compensation sum.97 Fiqh literature contains detailed discussions of specific injuries and the involvement of physicians in the process of determining retaliation or compensation for each of them. A partial list comprises the breaking or uprooting of a tooth, cutting of a finger,98 different cuts on the skull,99 and blows to the head that cause insanity100 or bring about a total or partial loss of sight,101 hearing,102 or speaking ability.103 One typical example of such a discussion in Hanafi literature is a case in which the offender intentionally broke part of the victim’s tooth. It is required to wait for one year; and if the broken tooth has not regrown, retaliation is due. The qadi should consult a physician; if the latter says that half the tooth has been lost and it is possible to conduct exact retaliation, he is ordered to break half the similar tooth of the offender.104 If the physician determines that exact retaliation is impossible, the amount of compensation is decided on. The involvement of physicians in this process is attested also by the responsa literature. The seventeenth-century Palestinian Hanafi mufti Khayr al-Din al-Ramli is asked about the proper punishment of a person who hit another and caused him a partial loss of sight. Al-Ramli answers that, according to Hanafi literature, there is no room for retaliation and that compensation is due. The qadi should accept the testimonies of two reliable physicians regarding the exact degree of sight loss to facilitate the fixing of the compensation.105 The sharia court records of Ottoman Egypt also establish the involvement of medical experts—physicians, surgeons, and even barbers-circumcisers (h.alla¯qu¯n; muzayyinu¯n)—in evaluating the severity of wounds. In one such case, the qadi imposed a discretionary punishment (tadib) on a husband who had broken his wife’s arm, on the grounds of a testimony by the head of the surgeons’ guild (shaykh al-jarra¯h.¯ın).106 In another case, from 1765, this time from Anatolian Bursa, the plaintiff demanded compensation from the defendant on the grounds that he had shot him with a rifle, wounded him in his left hip, and caused his left foot to be paralyzed. The plaintiff presented to the judge a notification from the head surgeon of the Ottoman palace that his leg

74 Chapter Two

was paralyzed. The court subsequently ruled that the defendant had to pay half the blood money of a male person. In another case, the defendant was sued for causing blindness in one eye to the plaintiff. In this case the chief eye expert (kah.h.a¯l bashi) was summoned to assess the damage.107 It is worth mentioning here that Arab tribal law recognizes a functionary called qas.s.a¯s. (in Sinai) or naz.z.a¯r (in the Western Desert), a medical specialist who determines the amount of blood money due in each particular case of battery. According to Stewart, the qas.s.a¯s. is closer to an adjudicator than to an expert witness, because his determination is final and all the procedures involved in his activity (the naming of guarantors; the option to approach a second and a third specialist) are similar to those of an adjudicator. What distinguishes him from an adjudicator, however, is that his role is purely technical, and he does not discuss legal questions that may arise in the course of the case hearing.108 A particular type of medical expert was the veterinarian, for example in the context of the proper slaughtering of animals. Ibn Abidin discusses the requirement to cut three of the arteries of the animal in slaughtering it; he says that if it is impossible to locate the arteries, the help of experts should be sought.109 As in the slave trade, one of the commonest problems associated with the trading of animals is the existence of physical defects or diseases that may be concealed by the seller at the time of the sale and discovered by the buyer only after he takes possession of the animal. The responsa literature contains many queries on this issue addressed to muftis. Khayr al-Din al-Ramli, for example, is asked about a person who buys a donkey and finds it limping. Experts (ahl al-marifa, probably veterinarians or animal dealers) testify that the limp is “old”—that it started before the beast was sold. Al-Ramli responds that the buyer should be financially compensated for the defect but is not entitled to return the animal to the buyer.110 Other questions addressed to muftis refer to certain diseases or defects that have a long period of gestation and therefore appear in the animal only a long time after the date of its purchase.111 In Ottoman Jerusalem, the buyer of a donkey filed a lawsuit in which he demanded cancellation of the deal on the grounds that the seller had concealed a defect in the beast. The qadi asked the head (muqaddam) of the veterinarian (bayt.a¯rı¯ ) guild to inspect the donkey. After the veterinarian testified that the defect was “new,” the qadi ruled that the sale contract was valid and binding.112 In cases of injury caused to rented animals (for riding, carrying loads, or agricultural work), the expert testimony of veterinarians was required to determine the severity of the injuries and the cost of the required medication.

The Right Hand of Qadis

75

On the basis of their determination, the qadi was to consult animal dealers concerning the compensation the renter should pay to the animal’s owner.113 The expertise of veterinarians was needed also for determining the pregnancy periods of animals. If, for example, a person, in his last will and testament, bequeaths the offspring of his pregnant sheep to another person, and there is later a controversy about whether the lamb is indeed the offspring of the same sheep, the qadi should consult the experts about the minimal and maximal pregnancy periods of sheep.114

5. architects and builders In his Muqaddima, Ibn Khaldun (d. 1382) provides important information about the central role that construction experts played in medieval city life. He reports that in thickly populated cities, people quarreled over internal and external space and over the use of the outer walls of buildings. People also argued about rights of passage along roads and streets, and openings for sewage. For example, someone might claim that his neighbor’s wall was in bad condition and that he feared it would collapse. He needed an opinion from an expert (inda man yara¯hu—that is, one who is able to see what is wrong with the wall) to force the other party to tear the wall down if necessary so as to prevent damage to the neighboring house. Or a house or courtyard might have to be divided between two parties in a way that will not damage the house. All these problems, states Ibn Khaldun, required the exclusive expertise of constructors. They learned about the condition of buildings by studying their conjunctions, the wall belts, and the way the boards were laid; they checked whether the walls stood properly upright, and they took care that water running in canals or pumped into pipes would not damage the neighboring walls and buildings.115 While Ibn Khaldun was a historian reporting on the role of construction experts in the fourteenth-century Maghrib, Ibn al-Rami, “the Constructor” (al-Banna¯) from Tunis (d. circa 1334), was one of these experts. His work, Revealing the Laws of Construction (al-Ilan bi-Ahkam al-Bunyan), which was the main source for the studies of Brunschvig (1976a) and Van Stoevel (2001), is one of a kind, because Ibn al-Rami combined legal scholarship with practical experience as an expert witness under a number of Tunisian qadis. This work sheds light on some aspects of the practice of expert testimony in the author’s time and place, while at the same time it is ambiguous with regard to other aspects. From Ibn al-Rami, who refers to himself as “Muhammad the Construc-

76

Chapter Two

tion Master” (al-Muallim Muhammad), we learn about the internship that a construction worker had to go through before the qadi would agree to accept his opinion as an expert. He reports about a legal dispute between neighbors concerning the ownership of a well, in which he joined, as an intern, the experts who conducted the inspection (in his words: “My opinion has not yet been counted among those of the experts” [lam yakun lı¯ maahum fı¯ dha¯lik naz.ar]).116 Is it incumbent on a qadi to accept a litigant’s request to send construction experts to the disputed site? According to one Maliki opinion, he may refuse; according to another, he should accept, on the grounds of the precedent set by the Prophet, who sent Hudhayfa b. al-Yaman to inspect the fence built between two property owners.117 Ibn al-Rami does not decide between these two opinions.118 Ibn al-Rami mentions eight lawsuits in which he was personally involved. In six of these cases, the qadi delegated at least two experts to conduct the inspection and report on their findings; in the remaining two cases, it seems he functioned alone.119 Although eight cases are in no way a representative sample, it seems that to have more confidence in the opinion reached, the judicial practice was to delegate a number of experts for each inspection. In urban centers it was probably not difficult for qadis to find at least two construction experts for a case. In six of the eight cases, it was the qadi who ordered the experts to investigate the case, which means they functioned as court advisers.120 In the remaining two cases, the qadi ordered the litigants to have experts inspect the disputed site or object ( fa-amarahum bi-nuzu¯l ahl al-marifa; amarahuma¯ al-qa¯d.¯ı bi-ahl al-marifa yuarrifu¯nahu bi-s.ifat al-mawd.i).121 It is unclear to me what caused a qadi to decide to send the experts himself or to have the litigants be responsible for doing so. One possible reason for having the litigants hire the experts was that the qadi did not want to pay the expert himself or did not have funds for this purpose. When the litigants hired the experts, it is clear that the latter functioned as the partisan witnesses of the former. After inspecting the disputed site, the experts composed a document in which they incorporated the plaintiff ’s version at the beginning and then added their findings and conclusions supporting the plaintiff ’s position.122 Following that, they testified orally on the authenticity of their documentary report, probably in front of the notaries. Finally, it was the plaintiff, rather than the experts, who presented the document to the qadi. The progression of the next case makes it clear that experts were sometimes exposed to pressure exerted by qadis. The plaintiff (let us call him A)

The Right Hand of Qadis

77

bought a house from B. It was stipulated in the sale contract that A forfeited his right to complain against B about imbalanced walls, unless they were on the verge of collapse. Upon taking possession of the house, A found that one of the walls was imbalanced and consequently sued B. The qadi Ibn Abd al-Rafi (d. 1332 or 1334) ordered A to have experts inspect the house. In their report the experts, after specifying the characteristics of the wood that had been used for constructing the wall, determined that the wall was on the verge of collapsing, that it was dangerous to reside in the house, that the defect was older than the date of the sale, and that it lowered the value of the house by forty dinars. The qadi handed down a decision in accordance with the experts’ report. B paid A the forty dinars and they left the court. Some time later, B approached another qadi and filed a suit against C, from whom he had bought the house (in other words: C was the original owner of the same house), arguing that the same defect had already existed when C had sold him the house. The qadi instructed B to demand the forty dinars from A, rather than from C, on the grounds that the experts had failed to understand that the stipulation inserted in the sale contract between A and B referred also to walls that were on the verge of collapse. C acted on the instruction of the qadi and called A to justice. A defended himself by referring the qadi to the experts’ report. The qadi sent a messenger to the experts, asking them the following question: Is an imbalanced wall due to collapse or not? The experts responded that it depended on the strength of the wall’s construction. The qadi’s reaction was to call for their imprisonment, apparently to pressure them to alter their assessment. On their way to the prison, the qadi instructed that they be returned to the court, and he repeated his question. Ibn al-Rami upheld his previous answer. His frightened colleagues kept silent. Failing to coerce the experts to change their minds, the qadi, ignoring qadi Ibn Abd al-Rafi’s original judgment, ordered A to return the forty dinars’ compensation to B. We also learn from Ibn al-Rami that, in addition to providing their learned opinions to the qadi, the experts executed construction works assigned to them by the qadi. In one case the qadi decided, on the basis of a report by Ibn al-Rami and his colleagues, that an alley that ran between two houses was the joint property of the two neighbors and had to be divided between them. To make sure that his judgment was respected, the qadi instructed the experts to construct a barrier across the alley that would at the same time cut the alley into two parts and enable each neighbor to enter the alley from his own property, thereby gaining access to the main road.123 In another case, Ibn al-Rami and his colleagues assisted a stable owner in

78

Chapter Two

finding a practical solution as an alternative to the qadi’s order to remove the stable, on the grounds that the bad smell and the noise the animal was making at night constituted a nuisance to his neighbor. Fearing the loss of his livelihood, the stable owner approached the experts, who advised him to erect a barrier separating the stable and the neighbor-plaintiff ’s house. The experts reported to the qadi about their solution; he consequently reversed his earlier decision and required the stable owner to swear an oath that he would not pull down the wall at a later stage.124 This case demonstrates the central role that experts played in construction-related lawsuits and their power to convince qadis to retreat from earlier decisions. For their part, the qadis were reasonable enough to appreciate the practical wisdom of the solutions recommended by the experts. Another historical example from the fourteenth-century Maghrib is a riparian dispute between two communities (one upstream, the other downstream) in Wadi Zgane (the Atlas Mountains). In 1321, the chief qadi of Fez sent expert witnesses to survey the disputed area, accompanied by a delegation of residents from the two disputing communities. The expert witnesses walked the valley from end to end, studied its topography and hydrology, and produced a detailed, microlevel description of the valley. Their report covered the type of irrigation system used in Wadi Zgane, the hydraulic devices, and the fields, thereby clarifying the ongoing dispute between the two settlements.125 Like the Maghribi qadis, the qadis in Ayyubid, Mamluk, and Ottoman Egypt consulted with architects on the quality of buildings and on disputes between neighbors concerning defects in buildings, borders of property, and passage rights. In one case from 1136, documented in the Geniza, an inspection (kashf ) of a tilting house was conducted by two architects commissioned by the government at the request of the Jewish buyer. The architects verified the buyer’s complaint and determined the renovation that had to be carried out to eliminate the problem. Their report was documented by two scribes who accompanied the experts to the site.126 Sharia court records from Ottoman Egypt contain ample evidence of the involvement of architects in the inspections of buildings. According to Hanna, during the sixteen century there were a number of Cairene courts administering these inspections, but by the eighteenth century it was the main Hanafi court of al-Bab al-Ali that exclusively controlled this procedure. The setup of the inspection delegation also became formal: whereas in the sixteenth century the inspection of buildings was carried out by the qadi himself or by his delegate, in the course of the seventeenth century the chief judge (qa¯d.¯ı al-qud.a¯t) nominated a functionary called kashsha¯f al-awqa¯f to supervise all

The Right Hand of Qadis

79

the inspections. Contrary to what is implied by the name of this functionary, he was supervising not only inspections of waqf assets but inspections of all sorts of properties. By the eighteenth century, the makeup of an inspection delegation included the following: the kashsha¯f al-awqa¯f (in some cases); the mima¯rba¯sha¯, a state official responsible for the building guilds (usually not himself an architect); two architects (sometimes the guild head was one of them); two court scribes, who wrote the inspection protocol—including the experts’ opinions; the plaintiff; and, if the inspection involved a waqf property, the administrator of the waqf (see below). Hanna makes it clear that the architects were not attached permanently to the court. Rather, they were recruited for each inspection by the qadi or by the mima¯rba¯sha¯ and were paid upon the completion of that inspection.127 Building experts in Ottoman Egypt were also involved in criminal proceedings and in inheritance settlements. In one case from the last decade of the sixteenth century, in which a person complained about a theft of coal from his warehouse, the Hanbali deputy qadi and one of the notaries, who conducted the investigation, sent building experts to the warehouse. The experts reported that it was impossible to widen the opening located in the warehouse’s wall to enable a thief to get his hand inside.128 As for inheritance, members of guilds involved in construction contributed to the smooth functioning of the inheritance system, since their expertise was essential for the distribution of immovable property among the heirs.129 So far I have discussed cases in which qadis relied on experts in the framework of their judicial capacity—that is, in the context of lawsuits filed at the court. In addition, the qadis consulted experts in their capacity as administrators. For example, in 1276 a group of Muslims discovered the ruins of a mosque near a monastery outside Mamluk Cairo. They informed the vizier of Sultan Baybars, Baha al-Din ibn Hanna. The latter ordered the qadi Baha al-Din (who was also the supervisor of the awqaf ) to investigate the case. The qadi, accompanied by his deputies (nuwwa¯b al-h.ukm), the notaries, and a group of architects ( jama¯a min al-muhandisı¯n), visited the site and verified the existence of the ruins. The members of the mission testified on their findings before the qadi Ilm al-Din al-Samanudi, who sent his judgment to the chief qadi, Muhyi al-Din b. Ayn al-Dawla. The latter passed the information on to the Sultan, who ordered the vizier to rebuild the mosque and equip it with everything needed to resume its functioning.130 One of the responsibilities of qadis was to supervise the proper maintenance and administration of waqf properties. Since the fiqh permits only short rental periods of waqf property, a waqf administrator who requested a qadi to

80

Chapter Two

allow a long rental had to convince the court that the property needed renovation and that the waqf did not possess sufficient funds for that purpose. In such circumstances, the renter of the waqf property conducted the renovation, and its cost was deducted from the rental price. Before handing down his permission, the qadi consulted with architects, who testified about the condition of the property, the cost of renovations, and the proper rental price. In a case in which the replacement (istibda¯l) of a waqf property was requested, the qadi again consulted with architects, who testified that the original waqf property was in poor condition and that the new property would be more beneficial to the waqf.131 As mentioned earlier, a court functionary titled kashsha¯f al-awqa¯f controlled the inspections and acted as a middleman between the qadi and the architects.132 As in the case of the ambiguous division of roles between physicians and slave dealers with respect to the assessment of physical defects in slaves, the assessment of defects in buildings in particular, and of the value of buildings in general, involved both architects, on the one hand, and assessors and dividers, probably real-estate dealers, on the other. In his monumental encyclopedia, Nihayat al-Arab fi Funun al-Adab, Shihab al-Din al-Nuwayri (d. 1333), who had rich practical experience in the Mamluk state administration, provides formularies of transactions in which architects were involved. Some examples follow: (1) after the death of a husband who owed his wife a dower debt, the qadi sold the widow a house from her husband’s estate, and deducted the dower debt from the house’s price (this process is called muqa¯sa shariyya);133 (2) the proxy of the state treasury asked the qadi for permission to sell (or, in another formulary, to rent) to a private person a house owned by the state. These two formularies carried the signatures of the architects and the notaries, who testified that they had inspected the property and found that the price offered for it by the purchaser reflected the market price.134 Another formulary provided by al-Nuwayri concerns divisions of partnership in real-estate properties: the partners invited two architects to conduct the partition.135 The Maliki Ibn Farhun (d. 1397) reports about a controversy between the qadi Abu Bakr Muhammad Ibn Zarb from Cordova (d. 991), who used to accept the testimonies of construction experts (urafa¯ al-bunya¯n) on the value of defects in buildings, and an anonymous qadi, who criticized him and held that these experts should report only about the defects they found, while the dividers should testify about the financial consequences of these defects. Qadi Ibn Zarb responded that there was no reason to exclude construction experts, and even notaries, from testifying on the value of buildings, considering that

The Right Hand of Qadis

81

the notaries of every neighborhood were more knowledgeable than the dividers. Moreover, the latter demanded payment for their services (which might indicate that they took bribes). The second qadi accepted Qadi Ibn Zarb’s argument and said that the position of the Maliki school should not specify the professional who is permitted to testify in such cases, but simply say in a general manner that experts on defects (ahl al-bas.ar bi l-uyu¯b) should be consulted. If it is established, concluded the second qadi, that the dividers took money for their services, their testimonies should be barred.136 Evidence to the effect that Ibn Zarb’s opinion was the Maliki judicial practice is found in the information provided by Ibn al-Rami concerning fourteenth-century Tunis. One example is the case I cited earlier, in which Ibn al-Rami and his colleagues did not limit the report to their findings about the wall’s cracks or curves but prescribed the legal consequences of these findings: that the seller should pay forty dinars to the buyer, as compensation.137

6. conclusion I have demonstrated in this chapter that in premodern Islamic legal systems, the use of expert testimony was common, as in non-Muslim legal systems of similar periods.138 This is not surprising. Islamic legal systems in general have been rational, practical, and sensitive to the demands of everyday life. Expert witnesses provided for court systems the required knowledge (khibra; ilm; marifa) about the out-of-court world, such as medical expertise and the professional standards customary in commercial life. The variety of expert-witnessing practices across time and space may have resulted from differences in madhhab affiliation, judicial practices, local customs, and the organization of the market and crafts. That my historical sources are fragmentary, as stated in the methodological section of the introduction, obliges me to be cautious about making unfounded generalizations. However, the accumulation of my findings, especially for the Ottoman period, permits me to claim that for a particular place and period, regularities in practice did exist. The first regularity is the preference given by judges to the reports of two experts rather than one, aiming to increase the probability of accurately determining the facts. This finding strengthens my conclusion from chapter 1 that experts were mainly used as witnesses. The second regularity is the selection of experts from among local craftsmen. The skill and experience that won for a certain artisan or craftsman a reputation among his peers made him acceptable as an expert witness and reliable in the eyes of the court. Ottoman qadis’ resorting to the guilds of

82

Chapter Two

craftsmen is an expression of their pushing fact-finding down to the level of certified local knowledge. Although practices certainly varied, it seems that the main channel for using experts was at the qadi’s initiative, especially if the lawsuit before the court was of a public nature, as in cases of murder and h.udu¯d crimes. In this chapter, however, I have established that the use of experts as partisan witnesses was practiced as well, especially in lawsuits of a more private nature, such as those relating to personal status or damages. This naturally has created cases of conflict between expert opinions, which required the jurists to propose solutions. Although expert-witnessing practices in premodern Islamic judicial systems share characteristics with both common- and civil-law systems, I generally agree with Rosen that experts in Islamic systems were part of a style, or ethos, that was closer to the common-law model.139 The experts were not a direct arm of the state or of the judicial system. They were summoned from the market or from private practice to present information, and they generally maintained their independence from direct control by the court. Given this background, the voice of the twelfth-century Maliki jurist alMazari seems to be exceptional.140 What was it that bothered al-Mazari when he proposed relying on “scientific” and “objective” criteria for verifying the existence of leprosy, instead of relying on the nonreasoned opinions of physicians? Was he troubled only about the fact that one of the physicians in that case was a non-Muslim, or did his proposal reflect a more general distrust on the part of ulama of the practical knowledge provided by experts?141 This question cannot be definitely answered, but it is certain that modern science presented demanding challenges for traditional expert witnessing. This matter will be the focus of part 2 of this book.

chapter three

Agents of Patriarchy in the Secluded World of Women: Females as Expert Witnesses 1 . h i s t o r i c a l a n d c o m pa r a t i v e b a c k g r o u n d In this chapter, following the guidelines and the considerations of the previous one, I focus on the role of knowledgeable women in general, and midwives in particular, as providers of expert testimony concerning the intimate parts of the female body. In Muslim societies, in which the morality code obliged females to be segregated from unrelated males, it was preferred that one female treat another, especially if the malady or the wound was located in the intimate parts of the body. Legal texts instruct male physicians to teach women how to treat other women. Only if a female practitioner is not available and the life of the female patient is in danger is a male physician allowed to treat the patient.1 A picturesque illustration of this socio-moral construct appears in a request for a legal opinion that appears in al-Miyar of al-Wansharisi: A person who bought a slave argued that the slave was androgynous. He asked how his claim would be investigated. The mufti answered: It is required to cover the slave’s masculinity, and then (expert) women will look at the vagina; then the vagina will be covered, and (expert) males will look at his masculinity.2 According to Sonbol, before the nineteenth century, hospitals (called ma¯rista¯ns) were divided into separate departments for females and males. Only female physicians and midwives worked in the female department. When a male physician’s opinion was needed with regard to a female patient, a female physician or a midwife reported her condition to the male physician, who then diagnosed her without physically inspecting her.3 In early modern Ottoman settings, hospitals indeed included separate sections for male and female patients, but various means were developed to enable cross-gender treatment.4

84 Chapter Three

Our current knowledge of the functions of midwives in Muslim societies is insufficient. Students of Islamic cultures can only envy the rich source material and scholarly literature on this topic in early modern Europe, where most midwives were mature women, married or widowed, who started to practice after their children were grown.5 Most were trained in some form of formal or informal apprenticeship; most were of middling status, married to artisans, craftsmen, tradesmen, or farmers, for whom the practice of midwifery, although not essential for the household income, was a useful addition.6 Although it is not yet possible to construct a thick profile of the average premodern Muslim midwife, it is permissible to state that midwives provided essential services and gained their expertise through informal apprenticeship.7 In premodern Muslim societies, midwifery was considered essential for ensuring the survival of the newborn baby.8 Some of the legal sources mention that a husband may not prevent his wife from working as a midwife.9 The work of midwives in hospitals was considered low status, although those who worked in the harems of elite households apparently enjoyed a higher status.10 Although midwifery was recognized as a female occupation, it is not clear if midwives were organized in formal guilds, as were male artisans.11 Despite patriarchal reluctance to rely on the testimony of women, which was regarded as suspect, midwives in early modern Europe served as expert witnesses in addition to their main role of assisting women in childbirth. For example, Quaker midwives served as both arbitrators and witnesses in domestic disputes and in cases of sexual misdemeanor, rape, incest, infanticide, or physical abuse. Moral integrity and religious conformity were demanded of midwives to ensure their suitability to testify in court, and to enable them, in extremis, to question the mothers of bastard children, and decide on cases of antenuptial fornication or infanticide.12 The function of midwives in early modern Europe as the right hand of municipalities and judges in preserving the society’s morality code was probably similar to their function in Muslim societies. For example, at the beginning of the fifth century AH, there lived in the city of Tutiyla (east of Cordoba) a woman who had a full beard, similar to that of a man. She traveled freely and acted like a male. Nobody paid attention to the matter until the local qadi ordered a few midwives to inspect her. They refrained from doing so due to her appearance, but the qadi insisted. They determined that she was a female, whereupon the qadi ordered that her beard be shaved, that she wear female attire, and that she not travel unless accompanied by a male relative.13 Midwives were used also to promote political goals. For example, the Abbasid rulers, in their efforts to prevent the Shiites from endangering their rule, sent midwives

Agents of Patriarchy in the Secluded World of Women

85

to detect pregnancies among the women of the Imams’ households. Such a pregnancy could pose a significant challenge to the Abbasid authority.14 In chapter 1 I analyzed the scholarly debate on the probative meaning of female expert witnessing. In the present chapter I use primary legal sources, as well as primary and secondary historical sources, to shed further light on the variety of physical and medical inspections in which expert women were involved in their daily practice. In the conclusion, I address the relationship between the legal status of women as expert witnesses and their social status in patriarchal societies.

2. virginity In patriarchal societies, virginity has been the main criterion for the virtue of unmarried women, the symbol of women’s honor (ird.) and, consequently, of the honor (sharaf ) of her male agnates and of society at large. Presenting evidence of a bride’s virginity, such as a bloodstained bed sheet, has been a central part of the wedding ceremony. Until recently it was customary in rural Egypt to summon a midwife to break the hymen of the bride with her fingers, thereby establishing the purity of the bride for the sake of the groom, the families involved, and the local community as a whole.15 The inspection of an unmarried woman’s virginity has often been initiated by her male agnates in cases in which they suspected that she had lost it. In his study of Aleppo in the eighteenth century, Marcus relates that one resident of that city was so disturbed by public reports that his unmarried daughter was no longer a virgin that he had four midwives establish the girl’s innocence. Their expert testimony was duly recorded in an official court document.16 In the nineteenth century, girls in Cairo who ran away from home and lived in the streets but were later found were inspected by midwives, either at the request of their male agnates or after they claimed they had been raped while on the streets.17 Following the consummation of marriage, the groom might claim that he found his bride to be a nonvirgin, contrary to what had been promised to him. Rare historical evidence of the involvement of midwives in such a case is provided by al-Miyar of al-Wansharisi, who relates the following incident:18 In the second half of the fourteenth century, a husband who lived near Granada complained to the qadi that upon consummating his marriage, he found his wife to be a nonvirgin. The wife denied the allegation, claiming that the marriage had not been consummated and that she was still a virgin. The qadi ordered two midwives to inspect the wife. One of them found her deflowered;

86

Chapter Three

the other did not inspect the wife independently but merely corroborated the testimony of her colleague, explaining that the husband himself might have caused the loss of virginity. On the basis of this testimony, the qadi dissolved the marriage on the grounds of physical defect (ayb) in the wife, and ordered her mother to return to the husband the dower that had been paid to her. The mother appealed the verdict to another qadi, to whom she presented the written testimony of another knowledgeable midwife from the city of Andarash who had inspected her daughter and found her to be a virgin. Referring to the performance of the first two midwives, the second qadi said that the fact that they had not inspected the wife on the morning following the consummation of the marriage but only a few days later made it impossible to determine whether the loss of virginity was recent or old, since it is well known that the wound caused by the loss of virginity heals quickly. According to the qadi, the testimonies of the two midwives were therefore useless. He added that late Maliki jurists opposed virginity inspections, arguing that it was difficult to establish the truth on the basis of these tests, especially at the current time, in which the profession of midwifery, which requires a high degree of certainty and a strong religiosity, had lost much of its credibility.19 In another case, one that centers on the consummation of marriage, this time from Ottoman Cairo, a father of a minor wife sued his son-in-law, arguing that the latter had violated their marriage agreement not to consummate the marriage for three years (probably until the girl reached puberty), thereby causing physical harm to his daughter. After the husband denied the allegation, the qadi sent a female expert (khabı¯ra) to examine her. When she verified the claim, the qadi instructed the husband to divorce his wife.20 The verification of a wife’s virginity is also required when she files a suit against her husband, demanding to dissolve their marriage on the grounds of his impotence. According to the fiqh, if the husband denies the claim, the qadi grants him a respite of one lunar year to prove his sexual potency. If the wife repeats her claim after the termination of that year but the husband argues that he has succeeded in having sexual intercourse with her, the qadi should send the wife to a reliable woman (or if possible two, for greater certainty) for inspection. If they find her to be a nonvirgin (thayyib), the husband’s claim is accepted together with his oath. If they find her to be a virgin, she has the choice between dissolving her marriage or staying with her husband.21 Another situation in which the verification of a woman’s virginity is required is adultery (zina¯). If four males testify that a woman has fornicated but she denies the allegation and claims that she is still a virgin, most jurists (including the Hanafis, Shafiis, and Hanbalis) hold that female experts (one

Agents of Patriarchy in the Secluded World of Women

87

is sufficient for the Hanafis and Hanbalis) should inspect her. If her claim is verified, she and her partner are relieved from the h.add punishment for adultery and the witnesses are exempted from the h.add punishment for false accusation of adultery (qadhf ) on the grounds of ambiguity (shubha), since it is possible (1) that the woman was penetrated but her virginity remained intact or her hymen has grown anew; or (2) that the expert who inspected the suspect falsely stated that she was still a virgin. The Malikis and the Zahiris oppose this view, holding that such testimony by women cannot prevent the application of the h.add punishment. The Hanafi Sarakhsi refers to a situation in which females inspect the corpse of an “adulteress” after she has been executed by stoning and find her a virgin; or they find that her vagina has been blocked since her birth (such a female is called ratqa¯). Sarakhsi explains that such evidence is not sufficient to require the witnesses who testified against the “adulteress” to pay blood money to her relatives, since female testimony does not constitute “a complete evidence that creates an obligation to pay compensation money” (shaha¯dat al-nisa¯ la taku¯n h.ujja ta¯mma fı¯ ilza¯m d.ama¯n al-ma¯l ).22 An additional situation in which the verification of a woman’s virginity is required is when the sale contract of a female slave stipulates that she is a virgin but the buyer claims that she is a nonvirgin. According to the fiqh, if the buyer sues the seller, demanding to return the slave and get his money back, or to be compensated for the decrease in the market value of the slave, his claim should be granted after female expert(s) inspect the slave and find her a nonvirgin.23

3. puberty and competence f o r s e xua l i n t e rc o u r s e Ascertaining the puberty of a wife and her physical ability to engage in sexual intercourse with her husband was needed frequently due to the large number of marriages involving minor spouses.24 Such marriages were not consummated until the wife reached puberty. The Maghribi mufti Ibn alHajj (d. 1126) was asked about the signs for puberty and answered that they were the female’s face and figure and the report of reliable women (who inspected her).25 In a case mentioned in Wansharisi’s al-Miyar, the marriage of an orphan female was conducted on the basis of an inspection document (rasm) stating that the signs of puberty—for example, the emergence of breasts (inba¯t wa-tanhı¯d )—existed on her body. Later, the spouses got into dispute, and

88

Chapter Three

the wife presented new evidence to the effect that she had not yet reached puberty. The husband denied the claim, arguing that he had seen the signs of puberty on her naked body and presenting for the second time the document of the inspection conducted prior to marriage. In response, the wife presented a new document negating the husband’s claim. The husband then presented a new inspection document, according to which reliable midwives26 had inspected the wife, found that her breasts had started to grow, and stated that they were not sure whether this was a sign of puberty or not!27 Another problematic situation was when the father of a minor wife, acting as her guardian, refused to hand her over to her husband, arguing that she was not yet physically capable of sexual intercourse. Responding to a question relating to such a situation, the seventeenth-century Palestinian mufti Khayr al-Din al-Ramli says that if the girl is accustomed to appearing in public (literally: to exit her house, mimman takhruj ), she has to be summoned to court. If the qadi concludes on the basis of her looks that she is able to engage in sexual intercourse, her father has to hand the girl over to her husband. If the girl is secluded in her house, the qadi has to send reliable women to inspect her there.28 If a wife complains in court that her husband forces her to have intercourse with him more often than she is physically able to sustain, two female experts have to inspect her, and their report informs the qadi’s decision.29

4. pregnancy A pregnant divorcee or widow is required to observe a waiting period (idda) until she gives birth and is entitled to receive maintenance during that period from her ex-husband or from the heirs of her deceased husband, as the case may be; the future child enjoys inheritance rights. Al-Shafii and Ibn Hazm (d. 1064) argue that if the ex-husband or the heirs of the deceased husband deny that the divorcee or the widow is pregnant, the qadi should send four midwives to inspect her. If they find her pregnant, her ex-husband must pay her maintenance. If not, her claim for maintenance is rejected. If the midwives testify that she is pregnant but it later becomes clear that they lied or were mistaken, she must return the maintenance and any clothes that she received from her ex-husband.30 Maghribi responsa collections include a few questions referring to these kinds of situations. For example, a divorcee argues that she is entitled to stay in her ex-husband’s house because she is pregnant. The husband denies her pregnancy. Ibn Rushd responds that if she persists in her claim after the pas-

Agents of Patriarchy in the Secluded World of Women

89

sage of one year from the date of divorce, her request has to be rejected until she is inspected by women who verify her claim.31 An interesting case is a request for a legal opinion which appears in Wansharisi’s al-Miyar: A widow who claims to be pregnant (probably in the framework of a claim for maintenance from her late husband’s legacy, and her pregnancy is denied by his agnatic heirs) is inspected (literally: her belly is inspected) by the local expert midwives (a¯rifa¯t al-mawd.i min al-qawa¯bil), who verify her claim. But when the waiting period (four months and ten days) is over, the same woman requests the qadi’s permission to remarry, surprisingly arguing that she is not pregnant. Inspected again by the midwives, the latter say that the pregnancy they found in their first inspection has disappeared. The woman remarries, and after the elapse of about six months (the minimum pregnancy period, according to the fiqh) from the date of marriage, she appears pregnant, claiming that the father of her embryo is her firstdeceased husband!32 It seems that such cases had the potential of severely damaging the professional prestige of midwives, at least from the point of view of the legal system. The Malikis regard pregnancy as circumstantial evidence of adultery, for which the h.add punishment may be applied, on the following conditions: if the pregnant woman is not married; if she is married but her husband is a minor or has been castrated; if she gives birth less than six months after the date of her marriage (that is, less than the minimum duration of pregnancy); and, finally, if she is a slave and her owner denies that he has slept with her. Such a woman may be saved from the punishment, if she brings evidence to the effect that she was raped. The Hanafis, Shafiis, and Malikis, however, reject the application of the h.add punishment if the accused woman denies the fornication or if there is an ambiguity (shubha) concerning the alleged act.33 According to the Hanafi Sarakhsi, if a woman convicted of fornication argues that she is pregnant and her claim is verified by the testimony of a female expert (preferably two), the application of the punishment is postponed for two years, the maximum duration of pregnancy according to the Hanafi school, during which time the woman is imprisoned. If she fails to give birth during that period, the h.add punishment is applied.34

5 . p r e m at u r e t e r m i nat i o n of pregnancy by abortion Musallam, in his study on birth control in premodern Muslim societies, argues that premeditated abortions were used for various practical reasons, among

90

Chapter Three

them birth control.35 He does not mention the involvement of midwives in abortions, but we have some evidence from other sources that they were involved. From investigation protocols of the Egyptian police we learn about a white female slave, who was purchased around the mid-nineteenth century by a slave dealer in Istanbul, impregnated by him, and brought to Cairo. The slave dealer’s wife, who wished to prevent the slave from having the baby, summoned a midwife, first to verify her suspicion that the slave was pregnant and then to perform an abortion, probably by the use of drugs. However, the midwife reported that the pregnancy was too advanced for an abortion.36 In judicial contexts, the determination of the stage of development of the aborted fetus is essential for deciding on its legal and financial rights and those of its relatives. The jurists (following Q. 22:5) determine that the fetus goes through three stages of development, each forty days in duration: the semen (nut.fa) stage, the blood clot (alaqa) stage, and the lump of flesh (mud.gha) stage. After the termination of the third stage—that is, after 120 days have passed—the fetus is ensouled and is therefore considered a human being. It should be noted that the lump of flesh is first “unformed” (ghayr mukhallaqa)—in other words, it does not carry clear signs of human organs— and later becomes “formed” (mukhallaqa). Midwives were summoned to give their opinion as to whether the aborted fetus was “formed” or “unformed.”37 In the context of penal law, if a woman spontaneously aborts her baby due to physical injury caused to her by an offender, and if the aborted fetus is “formed,” it is considered an embryo ( janı¯n) and its relatives are therefore entitled to blood money (diya or ghurra). If it is “unformed,” there is no entitlement for diya, but a lesser compensation (h.uku¯mat adl ) is due.38 For the Hanbalis and the Shafiis, then, a lump of flesh that has the form of a human being or one in which the form of some organs has become clear is considered an embryo. However, the jurists of these two schools also consider to be an embryo a lump of flesh that has the hidden form (s.u¯ra khafiyya) of a human being that midwives can identify and testify about. The Shafii al-Nawawi (d. 1277), for example, explains that if the aborted matter is only blood or a blood clot, the waiting period of the divorced mother is not ended. But if the material carries signs of a human being, such as a hand, a finger, or a nail, then the waiting period is ended. If there is no sign of a human being but expert women (ahl al-khibra min al-nisa¯) testify that it is clear to them that the material carries the hidden form of a human being, then the waiting period should be regarded as complete, even if laymen are not able to discern this form. If the midwives are in doubt, the qadi should not rule on the termina-

Agents of Patriarchy in the Secluded World of Women

91

tion of the waiting period.39 The Hanafis, on the other hand, do not recognize the lump of flesh as an embryo if the form of a human body is not clear, even if trustworthy midwives testify that it is a human being.40 Another judicial context of disputes concerning abortion is slavery. In Wansharisi’s responsa collection there is a case of a female slave who argues that she aborted the child of her master, but he nevertheless plans to sell her (according to the fiqh, if she is impregnated by her owner and afterward aborts a “formed” fetus, she is considered an umm walad, which prevents her master from selling her; also, she gains her freedom upon her owner’s death). Her owner argues that if she aborted at all, it was not his child. Two midwives corroborate the slave’s claim. A third midwife testifies that she did not witness the abortion itself but saw the aborted fetus afterward. The midwives’ testimonies are reported to the owner, probably to give him a chance to prepare his defense.41

6. birth In section 4 of chapter 1, I referred to the controversy among the schools of law concerning reliance on the testimony of one woman. Shafii, the main opponent of such reliance, and other jurists who join him, denies the soundness of the hadith according to which the Prophet permitted reliance on the testimony of one midwife with respect to birth.42 Even the Hanafis, who accept such testimony, disagree among themselves. Let us begin from the point of agreement among them. Consider the case of a married woman whose pregnancy is not visible (z.ahir) and is not confirmed by her husband prior to delivery. If the husband denies her delivery, both Abu Hanifa and his two disciples, the Sahiban Abu Yusuf (d. 798) and Muhammad al-Shaybani (d. 804), agree that the testimony of one reliable, free Muslim woman concerning the delivery is sufficient for establishing the husband’s paternity of the newborn.43 If the husband confirms the delivery of a child but claims that the child presented by his wife is not the one born to her (in legal terms, he denies the identity, tayı¯n, of the child), a reliable midwife’s testimony regarding the child’s identity is sufficient for establishing the father’s paternity.44 In the above-mentioned case, the woman’s delivery is denied by her husband. Consider an alternative case, one in which the woman is a divorcee or a widow who is observing her waiting period and her ex-husband or his heirs, as the case may be, deny her delivery. Abu Hanifa requires the standard number of witnesses (two males, or one male and two females) concerning the delivery, while the Sahiban ( joined by Ibn Abi Layla) are satisfied with

92

Chapter Three

the testimony of one midwife.45 Abu Hanifa argues that here—contrary to the above-mentioned case of a married woman—the woman terminates her waiting period by giving birth and thereby becomes a stranger to her husband. Since the testimony of one woman is not sufficient for establishing the paternity of a stranger, two witnesses are required. To the contrary, the Sahiban argue that by delivering the child the mother does not become estranged from her husband, and the testimony of one female witness is therefore sufficient for establishing the delivery. Sarakhsi understands the controversy between Abu Hanifa and the Sahiban differently. According to him, all three agree that the testimony of one midwife is sufficient if the divorce is revocable, because such a divorce does not terminate the marriage bond until the expiration of the waiting period. They differ concerning the irrevocably divorced mother. It seems that Ibn Abidin adopts al-Sarakhsi’s interpretation.46 It is interesting to note that in the same scenario, if the husband’s (or his heirs’) denial of the delivery was preceded by their confirmation of the pregnancy, or if the pregnancy was visible, Abu Hanifa holds that the testimony of the midwife is redundant and that the testimony of the mother, in addition to her oath, is sufficient. However, the Sahiban follow their above-mentioned view—that the testimony of a midwife is required.47 If the husband (or his heirs) confirms the delivery but denies the child’s identity (as stated above), both Abu Hanifa and the Sahiban are satisfied with the testimony of a midwife concerning the identity of the child.48 Another topic treated in Hanafi texts concerns a master who states that he will free the first child born to his female slave; the slave gives birth and a woman testifies about the delivery, but the master argues that the child was born to another of his female slaves and therefore became his (the master’s) slave. Abu Hanifa requires the standard number of witnesses concerning the child’s identity as a condition for his release from slavery. The Sahiban are satisfied with the testimony of the midwife who attended the delivery. Abu Hanifa reasons that since the evidence provided by a midwife is accepted only on the grounds of necessity (h.ujja d.aru¯riyya), it has to be limited to the delivery itself and to the specific rules relating to birth—namely, the establishment of motherhood and paternity. The emancipation of slaves, Abu Hanifa argues, is a separate topic not related to the birth itself, and therefore the standard number of witnesses is required. The Sahiban argue, however, that a midwife’s testimony is acceptable with regard to the paternity of the infant, and that, by analogy, it has to be accepted with respect to other rights related to the birth.49

Agents of Patriarchy in the Secluded World of Women

93

7. the first cry of the newborn The first cry of the newborn child (istihla¯l) is a clear indication of its being alive. From a legal perspective, if the baby dies immediately after birth yet made his first cry before dying, his relatives are required to recite an interment prayer on him and to give him an Islamic burial; moreover, he enjoys inheritance rights. As mentioned earlier50, Abu Hanifa regards the first cry as an event that may be witnessed by males, while the Sahiban hold that the first cry, similar to the birth itself, is an event solely attended by females. Abu Hanifa and the Sahiban agree that the testimony of the midwife (and, according to the Sahiban, also the testimony of the mother) is sufficient for establishing the obligation of prayer, because the issue of prayer is a religious matter (amr al-dı¯n); the testimony of one woman (khabar al-mara al-wa¯h.ida) constitutes a complete evidence (h.ujja ta¯mma) in such matters, as with the testimony of two women concerning the new moon of Ramadan.51 As for the infant’s inheritance rights and the entitlement of his relatives to the payment of blood money, if the mother gave birth prematurely as a result of being beaten,52 Abu Hanifa and his two disciples agree that the mother’s testimony concerning the first cry is unacceptable, due to the fact that she has a direct interest in the baby’s inheritance rights and/or in the payment of blood money. But they differ concerning the number of witnesses required: Abu Hanifa requires a standard number of witnesses concerning the first cry (two males, or one male and two females), because inheritance involves personal rights (h.uqu¯q al-iba¯d). Such rights cannot be established on the basis of the testimony of women if men are available as witnesses. The Sahiban are satisfied with the testimony of two women or, according to some versions, even one, on the grounds of necessity—the fact that males are not permitted to attend the event.53 The testimony of midwives concerning the first cry of a newborn child involves financial interests and was therefore a practical procedure, as attested in legal formularies. In the work al-Muqni fi Ilm al-Shurut by the Andalusian Maliki al-Tulaytuli (d. 1067), we find a formulary entitled “a document concerning the first cry of a baby who screamed and then died.” It includes a declaration by the witnesses according to which they know the pregnant widow. Anticipating her delivery, the woman summoned to her house an unspecified number of trustworthy midwives. They testified on the details of the birth (date, duration), and that the newborn child screamed (istahalla s.a¯rih.an) until the end of the night or until a specific hour, and then died.54

94

Chapter Three

8. suckling Affinity through having breast-fed from the same woman creates an impediment to marriage. If there is a dispute as to whether the candidates for marriage suckled from the same breast, those jurists who consider breast-feeding an event solely attended by women—for example, the Hanbalis—are satisfied with the testimony of one woman, on the grounds of the hadith concerning the black wet nurse in the case of Uqba b. al-Harith.55 The Hanafis, who consider the event of suckling accessible to both men and women, require the standard number of witnesses (two males, or one male and two females). The Hanafi position is supported by traditions ascribed to Ali b. Abi Talib, Ibn Abbas, and Umar b. al-Khattab, who claim that reliance on the testimony of the wet nurse in this context would create a dangerous precedent, enabling any woman who wishes to take revenge against a specific couple to argue that she has breast-fed both. The Hanafis also argue that the annulment of a contract involving ownership, such as marriage, requires the testimony of men.56 The Malikis and other jurists hold a middle position. They argue that men should abstain from attending breast-feeding, since female breasts are among “the attractions of females” (mah.a¯sin al-nisa¯) that, according to Allah’s order, should be concealed from male strangers. But if males witness suckling by accident, the damage caused is less severe than that created by males seeing a female’s genitals. They therefore require the testimonies of two women, who are equivalent to two men in these circumstances. Al-Shafii requires the testimonies of four women.57

9 . p h y s i c a l d e f e c t s i n f e m a l e s l av e s Physical defects or diseases in slaves that are concealed by the seller and not reported to the buyer at the time when the sale contract is concluded constitute legal grounds for the annulment of the sale or the reduction in the price of the slave. As demonstrated earlier58, with regard to male slaves, the procedure involves physicians, who, following the buyer’s complaint, inspect the slave and report to the court on their findings; and slave dealers, who advise the court on whether the medical findings justify the annulment of the sale or, alternatively, a reduction in the market value of the slave. With regard to female slaves, female experts take the role of physicians if the defects or maladies are located in the intimate parts of the slave’s body.59

Agents of Patriarchy in the Secluded World of Women

95

Pregnancy is considered a defect in a slave girl if the seller fails to inform the buyer about it at the time of the sale. In one case from the court records of Ottoman Egypt, a black slave was defined in the sale contract as “clean from any sharı¯ defect.” The buyer later found that she was pregnant and sued the seller. The qadi summoned two midwives, who examined the slave in court and reported that she was already three months’ pregnant. The qadi annulled the sale, and the slave was returned to the seller.60 As with pregnancy, the fact that the slave has given birth prior to the sale, if concealed from the buyer, might constitute a defect.61 Consider a case, discussed by Hanafi jurists, in which the buyer discovers that the seller concealed from him the fact that the slave has a hidden physical defect (the same case applies also to pregnancy and birth). Women experts inspect the slave and determine that the defect is old and must have existed before the sale. Abu Hanifa holds that the standard number of witnesses is required for establishing that the defect was created when the slave was still in the possession of her original owner. Hanafi literature attributes different opinions to Abu Yusuf and al-Shaybani. Ibn Abidin, summarizing this controversy, argues that if the dispute between the seller and the buyer takes place prior to the conveyance of the slave to the buyer, a few Hanafi authorities hold that the testimony of one female expert concerning the defect or the pregnancy is sufficient to annul the sale; other Hanafis hold that the seller’s refusal to support his version by swearing an oath is also a precondition for annulment. If the dispute takes place subsequent to the conveyance of the slave, all Hanafi authorities agree that the testimony of a female expert and the refusal of the seller to take an oath are both required for the annulment of the sale. The underlying reasoning is that a sale in which the merchandise has already been conveyed to the hands of the buyer is a “strong” contract (aqd qawiyy), which may not be annulled solely on the basis of a “weak” testimony (h.ujja d.aı¯fa) supplied by females. Defining the preponderant opinion of the school, Ibn Abidin says that both the testimony of a female expert (preferably two) and the refusal of the buyer to support his version by swearing an oath are necessary for annulling the sale, whether the dispute takes place prior to the conveyance of the slave or subsequent to it.62 The use of female experts in this context was an intrinsic part of Maliki judicial practice. The jurist and qadi Ibn Farhun (d. in Medina, 1397) cites a judicial ruling by Ibn Ziyad (Ahmad b. Muhammad al-Lakhmi; a Cordoban jurist and qadi; d. 924), who ordered that a female slave be returned to the slave dealer who had sold her, on the basis of a testimony provided by a reli-

96

Chapter Three

able woman. The witness stated that the physical defect found on the slave existed prior to the date of the sale and therefore justified her return to the buyer. A later Maliki jurist and qadi in Cordoba, Ibn Sahl (d. 1093), criticizes this judicial practice on the grounds that it made of the female expert a witness, a physician, and a jurisconsult (muftiyya) at the same time. According to Ibn Sahl, the female expert should be restricted to reporting on her findings, without any further legal recommendation. The qadi should then consult slave dealers on whether the findings constitute a defect, muftis should hand down an opinion about the annulment of the sale, and the judge should rule accordingly. It seems that Ibn Sahl’s criticism of this practice does not necessarily reflect the jurists’ displeasure with the fact that female experts play an important role in the adjudication processes involving female slaves. As we saw earlier, Ibn Sahl levels the same criticism against male physicians who, after inspecting defects in male slaves, do not limit their reports to their medical findings but refer also to the legal implications of the findings, which is the task of slave dealers and muftis.63

10. physical damage and forensic evidence In the context of penal law, knowledgeable females (ahl al-marifa min alnisa¯) inspect women who have suffered physical damage to the intimate parts of their bodies and report about the extent of the injuries and their severity, as a prerequisite for fixing the amount of blood money.64 For example, in 1647 a man came to the sharia court in Jerusalem and informed the qadi that his wife had been killed by the collapse of the roof of their house. Four women, summoned to the house by the husband, examined the body and testified in court that they had found her head and face swollen from the falling debris and saw no signs of criminal liability on the part of the husband. On the basis of this testimony, the court found that the husband bore no responsibility in his wife’s death.65 That the husband summoned four female witnesses is of interest. He was perhaps a Shafii or, alternatively, was interested in obtaining a large number of witnesses to make the case of his innocence as strong as possible.

11. conclusion Muslim jurists are unanimous that only females should testify about the intimate parts of the female body, which men are forbidden from observing. In chapter 1 I demonstrated that the controversy among the jurists focused on

Agents of Patriarchy in the Secluded World of Women

97

the number of female witnesses required for this task. At one end of the spectrum are the Hanbalis, who accept reliance on the testimony of one female expert, on the grounds of the similarity they find between an expert opinion and a report (khabar). At the other end of the spectrum are the Shafiis, who require four female witnesses, on the grounds that expert witnessing falls within the category of shaha¯da. Abu Hanifa, contrary to his two disciples, holds a restrictive interpretation with respect to female expert testimony. First, he narrows down the list of events that are closed to male viewers. Second, he holds that the testimony of a single female expert is sufficient only with regard to the actual event she witnesses (such as birth) and with regard to the legal status created directly by that event (for example, maternity and paternity). He rules, however, that such testimony is insufficient with regard to legal rights that emanate indirectly from the event. In this chapter I have shown that the juristic discussion on female expert testimony was part and parcel of daily practice. Although further research, especially in the historical sources, is needed, I think it is possible to make some generalizations. First, Muslim laymen have willingly made use of the services of midwives or other knowledgeable women for a variety of legal needs—for example, to conduct a virginity test when there was a need to clarify family honor; or to conduct an investigation of criminal events in which females were the victims (such as rape)—as a preliminary step to the submission of a penal suit. Second, state functionaries such as the qadi (and perhaps also the muh.tasib) have used female experts or midwives both as a central tool for monitoring and safeguarding public morality and as expert witnesses. They have sent them to conduct investigations and bodily inspections in cases in which women were involved, and their reports formed the basis for court decisions and subsequent punishment. Giladi, who studied the role of wet nurses in Muslim societies, argues that a patriarchal legal system is willing to acknowledge the modest amount of social power that women possess as a result of their life-giving function as wet nurses.66 I believe that this conclusion is applicable to midwives as well. In the sharia court, which is a patriarchal arena dominated by males, women have functioned both as litigants and as witnesses, albeit from a position inferior to that of men. Their expert testimonies were tolerated, but only because they were indispensable for safeguarding the moral code set by men. As a result of their exclusive role as expert witnesses on the female body, they have succeeded in securing a certain degree of social power and control for themselves, but this power and control should be weighed in the context of a patriarchal power relationship.67

98

Chapter Three

In the course of the nineteenth century, the profession of midwifery underwent a dramatic change. In Egypt, for example, with the establishment of modern medical systems directed by the centralist state, the theoretical and practical training of midwives shifted into schools established by the state, and midwives were incorporated into the state apparatus. Male physicians have penetrated the field of midwifery, and birth has been removed to hospitals.68 A few outcomes of these processes are discussed in chapters 5 and 6.

chapter four

Continuity and Reform: The Egyptian Expert System in a Comparative Perspective 1. introduction In this chapter I explain how the traditional system of expert witnessing (portrayed in the first part of this book), which directed fact-finding procedures to local informants, was replaced by one in which the central regime takes a firm hold on judicial procedures. As clarified in the introduction, this historical shift from premodern to modern expert witnessing in Islamic societies was part of a larger transformation of political culture, from a model in which political power was diffuse to one in which power is invested in the centralizing state, where law is perceived as the direct arm of the government. Since the nineteenth century, Western legal systems have had a considerable impact on the legal systems of the Middle East. They helped influence the administrative and legal reforms (Tanz.ima¯t) that took place in the Ottoman Empire, and after the dissolution of the empire, they influenced the ongoing legal reforms in the Arab national states that were founded in the Middle East. In the first part of this chapter, I discuss modern legal writing on the probative meaning of expert testimony and on the legal status of the expert—starting with the Ottoman Majalla. I then move on to analyze the expert system set in place by contemporary Egyptian legislation, focusing on the qualifications required from an expert, the ways in which experts are chosen to work with the courts, and the judicial procedures involved in the nomination of experts and their activities. I also pay attention to the judicial practice of expert testimony. My analysis compares the Egyptian model with those of other Arab countries, as well as with the European and U.S. models. Through this comparative analysis, I seek to find out what, if anything, modern Egyp-

102

Chapter Four

tian legislation and court practices have borrowed from fiqh perceptions of expert testimony. For example, do we find in the modern legal discourse on experts any remnants of fiqh debates on the status of the expert as an informer or as a witness and, consequently, on the required number of experts? And if we do not find such traces, to which “family” of Western models does the Egyptian system of experts belong? In chapter 1 I discussed the probative meaning of expert testimony in the writings of premodern Muslim jurists. The Ottoman Majalla, a codification of Hanafi civil law that was promulgated in the framework of the Tanz.ima¯t reforms (years 1870–77), represents probably the most recent expression of Hanafi doctrine with respect to expert testimony. It includes five articles in which expert witnesses (ahl al-khibra, and in one place arba¯b al-khibra) are mentioned. According to the Majalla, a defect in a sale object is anything that, in the eyes of the merchants and the experts of the profession to which the merchandise belongs, causes a decrease in its value (article 338); the amount of the decrease is to be determined by impartial experts (article 346).1 Article 414 of the Majalla stipulates, in the context of rent, that impartial experts are entrusted with determining the appropriate price of the rent (ajr al-mithl) of a specific property.2 Article 1610, referring to a written acknowledgment (iqra¯r bil-kita¯ba), stipulates that if a debtor denies his writing and signature on a promissory note, handwriting experts will establish whether the document is indeed in his own handwriting.3 Article 1685 indicates that female testimony without a corresponding male one is acceptable in monetary lawsuits only with respect to events that males are forbidden from watching (tuqbal shaha¯dat al-nisa¯ wah.dahunna fı¯ h.aqq al-ma¯l faqat.t. f ¯ı l-mawa¯d.i allatı¯ la¯ yumkinu it.la¯ al-rija¯l alayha¯). With respect to the ability of women to serve as experts, Haydar, in his commentary on this article, cites the Hanafi work al-Jawhara by al-Haddad (d. 1397) to the effect that, to be on the safe side (ah.wat. ), the testimonies of two midwives on birth are preferable to the testimony of one. Quoting the work alBah.r al-Ra¯iq by the Egyptian Hanafi Ibn Nujaym (d. 1563), Haydar explains that the phrase “the women,” used as a generic noun in the article, implies that two or even more female witnesses are preferable to one, because their testimonies create legal obligations. But the testimony of one female is acceptable, according to the following logic: in this type of testimony the requirement of masculinity is dropped to spare women from the problem of the male gaze; the requirement of the number of witnesses is therefore dropped, too. As for the requirement of female experts to use the formula of shaha¯da, Haydar, quoting the Hanafis al-Zaylai (d. 1342) and the Ottoman Sheikh

Continuity and Reform

103

al-Islam Abu al-Suud (d. 1574), notes that the classical Iraqi jurists of the proto-Hanafi school did not require female experts to use this formula of testimony, because they considered this type of testimony a report. All the other Hanafi jurists, however, demanded all the standard requirements of shaha¯da. He says that the Majalla opts for the latter opinion, which is the valid one.4 An interesting statement by the compilers of the Majalla appears in article 1689, which stipulates that the phrase “I testify” (ashhadu) is not required in a deposition whose aim is a clarification of a situation, such as the testimonies of experts. This is because in shari terms such a deposition is not a formal testimony but rather a report (la¯ yushtarat. lafz. al-shaha¯da fı¯ l-ifa¯da¯t al-wa¯qia li-mujarrad istiksha¯f al-h.a¯l, ka-istishha¯d ahl al-khibra, fa-annaha¯ laysat bi-shaha¯da shariyya wa-innama¯ hiya min qabı¯l al-ikhba¯r).5 The linkage created by the Majalla between the sharı¯ term clarification of a situation (istiksha¯f al-h.a¯l ) and expert opinion is not found in the fiqh.6 In modern Egyptian law, the use of the term clarifying testimony (shaha¯dat al-istiksha¯f ) in connection with experts or informants of the court is frequent.7 Another piece of late Ottoman reform legislation, the Law on Procedure for the Islamic Religious Courts (October 1917), permitted judges to conduct an investigation at the place that is the subject of the lawsuit, as well as to hear experts who were authorized by the court (article 30). If the litigants fail to agree on experts, who are required for assessing the proper amount of alimony or the proper wages, or if the defendant is absent, the court has to nominate the experts (article 31). If the plaintiff seeks to deprive the defendant of his legal competence on the grounds of mental retardation or lunacy, he has to support his claim by a medical certificate provided by one physician or, if necessary, a few physicians (article 32).

2 . c o u r t s , fac t- f i n d i n g , a n d e x p e r t s i n c o m m o n - a n d c i v i l - l aw s y s t e m s Since the nineteenth century, especially the last quarter of that century, the two legal models that have had the greatest influence on Middle Eastern intellectual and legal thinkers are the British common-law model and the European-Continental (especially French) model. In the case of Egypt, it has based the reform of its legal system on the Continental civil-law model, especially the French. As convincingly demonstrated by Nathan Brown, this choice was not accidental. Rather, it was rooted in a concrete national agenda. Against the background of increasing economic and political colonial intervention, culminating in the 1882 British conquest of the country, the Egyp-

104

Chapter Four

tian governmental elite opted for the French legal model because it offered greater centralization, consistency, and political control than the more diffuse common-law model, where judges were expected to play an active role in interpreting statutes and even in creating legal rules. Establishing a centralized and hierarchical legal system was conceived by the national elite as the best tactic for quickly creating something that the European powers of the time would recognize as a stable “rule of law.” In turn, a stable rule of law was viewed as a prerequisite for Egyptian demands to be freed from colonial rule.8 Continental (for example, the French and the German) inquisitorial civillaw systems allocate responsibilities for fact-finding very differently from Anglo-American adversarial common-law systems. The adoption of a civil model for the Egyptian legal system was a momentous one, because it had ramifications for the role of expert witnesses. The common-law system assumes that in a trial there will be two parties: one trying to prove that certain facts occurred, the other trying to prove that they did not. This system assigns to the judge the role of supervising the presentation of evidence. Once the evidence has been correctly presented, the trier of facts is assigned the role of weighing it and determining which facts will be used by the judge to determine the legal consequence. In the commonlaw system, the trier of facts is not the judge but rather a jury composed of laymen drawn from among the defendant’s peers. For example, after the jury makes the factual determination that person X intended to kill person Y, it falls to the judge to determine that because person X intended to kill person Y and succeeded in doing so, the legal consequence will be that person X must be sent to jail for life. It must be emphasized that this procedure is adhered to in the current U.S. system more strictly than in the British one.9 By contrast, in the Continental system a judge will not only establish the rules for the presentation of evidence, and enforce them, but will also (always) be the trier of facts and the ultimate decider of the legal consequence. Furthermore, as the trier of facts, the judge is at liberty to engage with the disputants to ensure that he is given the evidence he will want before reaching his conclusions about what actually occurred. The finding of facts and the establishment of evidence are commonly made in the pretrial phase by a “judge delegate” (in French: juge de la mise en etat). When the judge delegate has completed his task, he presents the evidence to the plenum of the court. The litigants’ presentation of oral evidence during the trial stage is kept to a minimum. Usually, the parties submit to the court written statements in which they refer to the evidence previously gathered by the judge delegate.10 In sum, in the Anglo-American adversarial system, the role of the judge

Continuity and Reform

105

during the fact-finding phase of a trial is traditionally far smaller than that of the civil-law judge. It is simply to ensure that procedure and the rules of evidence have been followed so that the litigants on both sides of a dispute have a fair chance to present their arguments at trial. The judge should not suggest legal constructs of his own or raise legal arguments not brought up by the litigants. He should not enter the judicial confrontation arena, because such involvement might be interpreted as taking a partisan stand. In the Continental systems, however, professional judges will make factual determinations and are expected to take an active role in the fact-finding process. Given their very different approaches to determining facts, it was natural that common- and civil-law legal systems would conceptualize the role of the expert in very different terms, would assign experts different roles in the process of determining facts, and would create different rules to regulate the manner in which experts presented their evidence. In both systems, rules for expert witnessing have evolved considerably over the last one hundred and fifty years. The rapid scientific and technical developments of the nineteenth and especially the twentieth century provided legal systems with effective probative tools that were unimaginable previously, thereby opening new legal horizons. At the same time, these developments, as well as the growing sophistication of the legal systems themselves, caused expert testimony to become much more complex and diversified than before. One ramification of this complexity is that expert testimony in modern Western legal systems has developed into a distinct subfield within the broader evidentiary field. The special theoretical and practical treatment of expert evidence is demonstrated by the compilation of a vast literature dedicated to this subject.11 Commentators in the different system areas have debated with increasing passion how best to characterize the nature of expert testimony, and how courts should make use of it to ensure the proper adjudication of contested issues. These developments have not escaped the attention of Arab jurists. One legal specialist named the modern period “the phase of scientific evidence.” Another wrote that expertise has become so essential as to become a “public service” (waz.¯ıfa a¯mma).12 Following Western legal writing, a considerable amount of literature in Arabic on expert testimony has been amassed during the last few decades.13 Common law has developed a distinction between evidence of fact or observation, supplied by lay witnesses, and evidence of opinion or inference, supplied by expert witnesses.14 As noted above, common-law trials are adversarial, meaning that the disputants prepare and present their cases to the

106

Chapter Four

trier of facts (usually a jury) and do not get any feedback from either the judge or the jury. In common-law trials, then, all evidence is presented in partisan fashion. Each expert who appears in court is thus a partisan witness whose fees are paid by one of the parties and whose testimony will be presented by that party in the hope of swaying the trier of facts to decide in his favor. Each partisan expert may be cross-examined by the attorney of the other party, and his findings may be challenged by an expert hired by the other side. In the inquisitorial civil-law system, however, the judge delegate is the one who nominates the expert during the pretrial stage, if he sees such a need, or if he is requested by the parties to do so. The expert is considered the temporary officer or the auxiliary of the court, and the judge delegate supervises his activity directly and closely. This judge may be present when the expert conducts his investigations, and he writes a protocol of the expert’s actions. If present, the judge may make an immediate decision regarding any reservation brought up by the parties during the procedures of expert investigation. He is authorized to narrow the expert’s mission or to expand it, to set timetables, and to summon the expert in order to supplement his task or clarify his report to the court, either orally or in writing. The litigants are permitted to submit reports by their own experts, but the courts would almost always prefer the report of the court-appointed expert over that of a partisan expert.15 From a comparative perspective, then, in the inquisitorial system the court questions the expert—with respect to his credibility, reliability, and the content of his opinion—in a more active manner than do courts in the adversarial legal system, in which the questioning of experts is conducted mainly by the litigants’ advocates.16

3 . t h e p r o b a t i v e s ta t u s o f a n e x p e r t report in modern arab legal writing In chapter 1 I discussed the fiqh discourse on the probative status of expert witnessing, demonstrating that the jurists differed as to whether this type of witnessing is a report, a testimony, or something in between. Modern Arab legal writers usually ignore this fiqh discourse altogether or, alternatively, they pay homage to this tradition without substantially integrating it into their theoretical discussions.17 Instead, they focus on issues of concern to Western legal theorists, particularly civilian ones. Under the rubric “the legal nature of expert testimony” (al-t.abı¯ a alqa¯nu¯niyya lil-khibra), Arab lawyers display two main positions toward expertise in world legal systems. The first holds that expertise is a “probative

Continuity and Reform

107

mean” (wası¯lat ithba¯t) that allows a court to learn from a “known situation” or “indicator” something about an unknown fact or event. For example, the known situation may be a fingerprint found on a murder weapon, and expertise may connect this finding to a particular individual who is suspected of the murder. According to this opinion, expertise has a special quality that makes an otherwise useless indicator (dalı¯l ) probative for a particular lawsuit. This position is the preponderant view among Arab jurists. For example, it has been adopted by the Egyptian Court of Cassation, on the grounds that the expert’s professional opinion is a “probative indicator” (dalı¯l al-ithba¯t) or “professional evidence” (dalı¯l fannı¯ ).18 The second position conceptualizes expertise as a procedure whose aim is to assist the judge in making a professional assessment of a particular situation (ijra¯ musa¯id lil-qa¯d.¯ı fı¯ l-wus.u¯l ila¯ taqdı¯r fannı¯ lil-h.a¯la). This is the attitude of Italian law, and it is followed by Moroccan law and by a few Egyptian legal writers.19 Contrary to the supporters of the first opinion, the holders of this second opinion argue that courts turn to experts when they already have a “known” indicator—an indicator that already exists in the framework of the case. Experts help the court to properly understand this known indicator. Arab lawyers agree that expertise is not “professional testimony” (shaha¯da faniyya), as argued by Anglo-American and modern Turkish laws.20 Testimony generally means a report by a witness referring to something he saw, heard, or grasped; it often includes the witness’s assessment of a situation. This assessment is the result of common sense and is remote from professional and scientific perspectives. Unlike a witness, the expert is required to assess a fact of a special character, and this assessment requires research and professional experience in addition to simple observation and common sense. The expert is also required to draw a conclusion from the facts he has evaluated, by applying his professional or scientific knowledge. Finally, he has to submit his reasoned conclusions to the judge or the authority that appointed him.21 This difference of opinion concerning the legal nature of expertise is reflected in the fact that a few national legislations place the section on expertise in the code of evidence (qanu¯n al-ithba¯t), while others incorporate it in the code of procedure (qanu¯n al-mura¯faa¯t; qanu¯n al-ijra¯a¯t). U.S., British, French, Egyptian (subsequent to 1968), and Syrian law belong to the first type, whereas German, Italian, Moroccan, and Lebanese law belong to the second. Some legal systems compromise by including the substantial principles of expertise in the civil law and the procedural ones in the code of procedure. “Old” French law belonged to this type, as did Egyptian law before 1968.22

108

Chapter Four

The different theoretical definitions of expertise23 lead to different definitions of the expert’s role vis-à-vis the court and the litigants: in Sudanese law, mainly influenced by British law, the expert is considered a witness on issues whose assessment necessitates professional expertise;24 Egyptian and Moroccan laws, to the contrary, follow Continental law (Italian,25 French) in defining the expert as an advisory figure—a “professional adviser” (mustasha¯r fannı¯ ) of the judge. The expert assists the judge by supplementing the knowledge of the latter in a way that makes it possible for the judge to reach a judgment.26 Indeed, the Italian and French legal systems have come to define the expert as the “judge’s aid.” According to article 131 of the Egyptian Code no. 46 on Judicial Authority (Qa¯nu¯n al-Sult.a al-Qad.a¯ iyya), the aids of the judge are the attorneys, the experts, the court secretaries and clerks, the ushers, and the translators.27 In passing, it is worth mentioning that Dr. Ajila, an Egyptian judge in the court of appeals, has proposed a third definition, according to which the expert is regarded as a deputy of the qadi (na¯ib al-qa¯d.¯ı ). Judging, he suggests, is divided into investigation and decision making. By authorizing the expert to conduct some part of an investigation, the judge is delegating a part (tafwı¯d. juzı¯ ) of his judicial authority to the expert. This approach, it should be noted, was rejected earlier by French literature and the courts, on the grounds that there is nothing in the statute that permits a judge to delegate his jurisdiction to another person.28 According to the Egyptian 1968 Code of Evidence for Civil and Commercial Lawsuits, besides expertise, there are seven probative means to acquire knowledge: written proof, oral testimony, circumstantial evidence, acknowledgement and questioning of the litigants, oath, and inspection. It is necessary here to elaborate on the relationship between inspection (mua¯yana) and expertise (khibra). The term mua¯yana was used by the fiqh in the context of the expert’s work.29 Ajila proposes that the definition of expertise in modern law should be “the carrying out of an ‘inspection’ by an expert nominated by the qadi.” Such an “inspection” results in the provision of a professional opinion that is beyond the capabilities of the average educated person, including the qadi.30 Similarly, in his book on the probative means of the sharia, the modern Egyptian jurist Ahmad Ibrahim includes the term inspection (mua¯yana) among a list of the types of shari evidence that provide the judge with highprobability knowledge (z.ann ra¯jih.). Other types of evidence that provide such knowledge are oral testimony (shaha¯da), written testimony, acknowledgment, swearing an oath, the qasa¯ma procedure,31 circumstantial evidence (qarı¯na),

Continuity and Reform

109

physiognomy (qiya¯fa), and lot casting (qura). According to Ibrahim, expert testimony should be included in the category of inspection (mua¯yana). The qadi himself may inspect the object or place that is the subject of the dispute. Or, if the issue of the lawsuit is professional or scientific, the relevant experts conduct the inspection instead of the qadi, because their expertise is essential for providing the qadi with high-probability information.32 However, the identification of expertise with inspection is rejected by other writers. Uthman writes that inspection is a means for collecting material evidence, whereas the role of expertise is to interpret that evidence. Even if the investigator or the judge consults the expert during the investigation phase, the expert’s involvement is not part of the inspection itself or of the material establishment of the evidence, but remains in the framework of professional evaluation of the evidence and advice to the judge.33

4 . o rga n i z at i o n o f e x p e rt w i t n e s s i n g in the egyptian legal system In many Islamic countries—among them Egypt, Sudan, Tunisia, Kuwait, Syria, and Iraq—expert testimony has been regulated by state law.34 In the section that follows, I analyze the organization of expert testimony and its operation in the Egyptian modern legal system. It is instructive to compare and contrast the Egyptian model with the French one, because although Egypt has drawn its main influence from France, it has nevertheless developed some unique rules of its own. I have thus chosen to include comparative references to the French and other Western legal systems. This analysis will, however, be placed in the notes to facilitate an uninterrupted reading of the main text. Earlier in this chapter I demonstrated that the operation of experts is much more court supervised in civil-law systems than it is in common-law systems. Here, I will argue that the Egyptian system of expert testimony, which has many similarities to the French model, is even more state sponsored and centralized than its French counterpart. This is because many of the experts who operate in Egyptian courts are state employees—that is, officials of the Ministry of Justice: a phenomenon not found in French law (or, as far as I know, in any other Western system), where the experts are independent professionals. Until 1955 the Egyptian court system was dual: the sharia (and nonMuslim communal) courts had jurisdiction in family law, succession, and waqf, while the indigenous (ahliyya) courts, whose name was changed to the national (wat.aniyya) courts in 1936, had jurisdiction in all other areas of the law, mainly civil and criminal. In 1955 the sharia courts were abolished and

110

Chapter Four

integrated into the national court system. Until 1952, articles 211–41 of Ordinance no. 78 of 1931, on the Organization of the Sharia Courts (Laihat Tartib al-Mahakim al-Shariyya), prescribed the rules for expert testimony within these courts.35 Another law, no. 75 of 1933, prescribed the equivalent rules for the indigenous (later national) courts. The relevant articles of both the 1931 and the 1933 laws were replaced by Law no. 96 of 1952, on the Regulation of Expert Witnessing in Front of the Judicial Authorities (Qanun . . . bi-Tanzim al-Khibra amam Jihat al-Qada), which is currently in force. In addition to the 1952 law, articles relevant to the operation of experts are found in Law no. 77 of 1949, on Civil and Commercial Proceedings (Qanun al-Murafaat al-Ahliyya wal-Tijariyya); in Law no. 150 of 1950, pertaining to criminal procedure; and in Law no. 25 of 1968, on evidence (Qanun al-Ithbat). Before turning to the current legal regime in Egypt, it is worth noting that right up to the abolition of the sharia courts in 1955, the Egyptian Ministry of Justice never developed any legislation for regulating expert witnessing in those courts. This was true even though legislation existed for the experts who appeared at the indigenous courts. The reason for this is not clear. It might have been the limited need for expert testimony in family law litigation. Whatever the reason, it meant that if the sharia courts needed the assistance of experts, they had to use those authorized to function in the indigenous courts. For fear of a conflict of interest, the sharia courts were prevented from nominating state officials as experts.36 Two types of experts function currently in the Egyptian national court system: (1) the “official experts”—including those affiliated with the Forensic Medicine Authority—are the employees of the Ministry of Justice (Khubara Wizarat al-Adl); (2) the “registered experts” (Khubara al-Jadwal) are private practitioners whose expertise is acknowledged by the courts; their registration permits them to testify in judicial cases. As a first priority, the court must nominate an expert from one of these two groups, preferably the first one. If the court thinks that the circumstances of a certain case require the nomination of an expert not affiliated with either of these groups, it should provide a justification for this exception (articles 1 and 50 of the 1952 law; article 136 of the 1968 law). The concept of registered experts who are professionals certified to function as expert witnesses upon demand comes from French law.37 It operates in Arab states influenced by French law, such as Egypt and Morocco.38 The institution of registered experts is nonexistent in the Anglo-American system.39 From the promulgation of the 1933 law until the promulgation of the 1952 law, the list system was the exclusive one in Egypt.40 The 1952 law introduced

Continuity and Reform

111

the system of state-employed experts, and in this respect Egypt stands as a unique case. It is tempting to think that the new military regime was behind this change, seeking to achieve better state control and a firmer grip on the activities of experts. But it is highly likely that the preparatory work on the 1952 law started well before the revolution of that same year and had nothing to do with the new rulers. In Egypt, the activity of official experts is regulated on two levels, the upper level being the Ministry of Justice and the lower level the court system. Within the Ministry of Justice, the Expert Administration (Idarat al-Khubara) is responsible for all nonmedical experts, while the Forensic Medicine Authority (Maslahat al-Tibb al-Shari) controls the activities of the medical experts. Within the Expert Administration, the Professional Office (Maktab Fanni) is responsible for the qualified guidance of the experts. This office has an Inspection Department (Qism Taftish) that supervises the registered experts in the fields of accounting, engineering, and agriculture (article 17 of the 1952 law). Moreover, the Expert Administration operates a number of bodies: the Consulting Council (Majlis Istishari) is responsible, inter alia, for nominating, promoting, and rotating experts and for setting up the experts’ offices and departments attached to the courts (articles 24–25 of the 1952 law);41 the Examination Committee (Lajnat al-Imtihan) is responsible for conducting the examinations required for the promotion of experts (article 21 of the 1952 law);42 and the Disciplinary Council (Majlis Tadib) is responsible for conducting corrective procedures against malfunctioning experts (article 26 of the 1952 law).43 The Forensic Medicine Authority includes the Professional Supervision Administration (Idarat al-Taftish al-Fanni), headed by the Chief Supervisor (Kabir al-Mufattishin). The role of this administration is to professionally oversee the departments of forensic medicine attached to the courts (article 34 of the 1952 law). Also, the Forensic Medicine Authority operates the Advisory Council (Majlis Istishari li-Khubara Maslahat al-Tibb al-Shari; articles 40–41 of the 1952 law)44 and the Disciplinary Council (Majlis Tadib; article 42 of the 1952 law),45 whose functions are similar to the parallel bodies of the Expert Administration. Before examining how the courts supervise the experts, it is worth mentioning that the Egyptian court system is composed of courts of summary justice ( juziyya), courts of first instance (ibtida¯iyya), courts of appeals (istina¯fiyya), and, at the top of the pyramid, the Court of Cassation (Mahkamat al-Naqd). Attached to each court of first instance are the office (maktab; or a number of offices, according to type of expertise) of the experts affiliated with the Minis-

112

Chapter Four

try of Justice who work in the jurisdiction area of that court, and a department of forensic medicine (qism; articles 16 and 32, respectively, of the 1952 law). Each court of first instance and each court of appeals operate a Committee of Registered Experts (Lajnat Khubara al-Jadwal), whose function is to remove from the list of experts those who have lost their competence and to conduct disciplinary procedures concerning those experts (articles 3–5 of the 1952 law).46 Some of the appellate courts also include a department of forensic medicine that operates a serological laboratory, a chemical laboratory, and a laboratory for inspecting handwriting and signature forgeries (article 33 of the 1952 law). As noted in previous chapters, the main qualification required from an expert witness in premodern times was rich practical experience. A distinct characteristic of the modern change that has been introduced to legal expertise is a demand for formal diplomas of learning. In Morocco, for example, this change is manifested by a process in which the “old” experts, the urafa¯, and the expert craftsmen, the umana¯, are being gradually replaced by graduates of modern educational institutions.47 In Egypt, a candidate for the position of state expert has to be an Egyptian citizen with complete civil competence. He has to have an undergraduate degree (baccalaureate or license) from an Egyptian university, or an equivalent degree from an acknowledged academic institution, in the same field as that in which he wishes to serve as an expert;48 he also should have a license to practice in this field. The candidate’s conduct and his reputation should be good; his candidacy is dropped if he has been convicted of a disgraceful offense by a court of law or a disciplinary council. He is not nominated until his qualifications and his suitability to serve as an official expert are verified (articles 18 and 35 of the 1952 law). Egyptian law states that an official expert should not have a second occupation that might prejudice his honor and professional independence or conflict with either the duties of his work or the quality of his performance (article 44 of the 1952 law). He should reside in the same area as that in which he is occupied (article 46). Upon his nomination to an official expert’s position, he should swear an oath in front of an appellate court to the effect that he will carry out his work in a responsible and upright manner (article 48).49 The hierarchy of nonmedical official experts is composed of eight degrees. Nomination to the lowest (eighth) degree takes place after one to two years of practical specialization. A direct nomination to the seventh degree or a promotion from the eighth to the seventh degree takes place after passing an exam. From the seventh degree upward, promotion is decided according to

Continuity and Reform

113

competence, which is measured by the seniority of the candidate and his past professional performance. Nominations of experienced external candidates to the fifth and sixth degrees are permitted, conditional upon their not exceeding one-third of the total number of nominations (articles 19–23 of the 1952 law; similar articles for medical official experts are 36–39). Each registered expert has a personal file that includes the comments and references related to his performance, a list of all the criminal cases in which he has been involved, and reports of all complaints submitted against him. The file is kept in the court to which the expert is affiliated (articles 6 and 15 of the 1952 law). The president of the court should notify the expert about any complaint filed against him, and the expert is given ten days to respond to the complaint. After considering the expert’s response and conducting his own investigation, the president of the court may reject the complaint altogether or refer it to the disciplinary committee (arts. 7–8). A registered expert is subject to disciplinary proceedings if he has performed an act that conflicts with his responsibility, reliability, and good reputation; if he falls short in any of his duties; if he commits a grave professional mistake (khata ja¯sim); or if, without any justification, he fails to perform a task imposed on him (article 9). According to the disciplinary rules, the disciplinary committee shall inform the expert of all the evidence submitted against him, and he has the right to defend himself. The committee may decide to suspend the expert during the disciplinary procedure. Its verdict, which is final, should be reasoned (articles 10–13), and the available disciplinary punishments are admonition of the expert, his suspension from duty for a period not exceeding one year, or his removal from the list of experts (article 14).50 With minor differences, the disciplinary procedures against the experts of the Ministry of Justice are similar (articles 27–31 for nonmedical experts and article 43 for medical experts). As noted earlier, Law no. 78 of 1931 includes the issue of expert testimony under the category of inspection (mua¯yana). As indicated in section 3 above, the term inspection refers to a qadi’s often having to leave his courtroom—to view with his own eyes the object(s) of dispute, such as lands or buildings, or the scene of a crime—in order to form his firsthand impression, which is essential for making a just decision. The reasoning behind articles 207–10 of the law, titled “the transfer of the court to the place of the dispute,” is that a judge cannot draw proper conclusions from the inspection unless he has access to unique professional expertise (khibra fanniyya kha¯s.s.a) that the average judge does not possess. Thus, article 210 indicates that the court, or one of the judges invested with the task of pursuing the inspection, is permitted to nominate experts to conduct it ( yaju¯z lil-mah.kama aw li-man tandubuhu min

114 Chapter Four

qud.a¯tiha¯ tayı¯n ahl khibra lil-istia¯na bihi fil-mua¯yana). Among the examples of issues in which the court needs to use experts, the explanatory memorandum of the law mentions a comparison between handwritings or scripts, the assessment of the value of waqf properties whose replacement with more valuable assets (istibda¯l) is requested, and the inspection of the spouses by a physician or a midwife in the context of marital disputes.51 The Egyptian Court of Cassation has established that the judge may be assisted by an expert with respect to professional issues (al-niqa¯t. al-fanniyya) that are not included in the knowledge of the court. Moreover, the judge should not rely on his personal knowledge regarding technical or scientific nonlegal issues that are presumed to be outside the layman’s scope of knowledge. The judge may also send an expert to investigate the facts of a legal case (al-waqa¯i al-ma¯ddiyya) for the use of the court, thereby lessening the court’s workload. But—and this is most important—the court shall not seek the help of experts with respect to purely legal issues (al-masa¯il al-qa¯nu¯niyya) that are included in the court’s knowledge and are therefore the sole responsibility of the judge.52 It is important to note that the Egyptian Court of Cassation has established that in all these cases the nomination of an expert is optional. The court may refuse a request by a litigant to nominate an expert if it thinks that other pieces of evidence related to the case are sufficient for the sake of decision making.53 Nevertheless, courts do regularly appoint experts. Indeed, some critics argue that they do so too often. A number of Egyptian lawyers complain that the Court of Cassation, by permitting the lower courts to delegate to experts their authority to collect evidence, has created a “gray area” that falls between the judge’s jurisdiction and that of the expert.54 According to these critics, this policy has created a situation in which the judges, in practice, improperly transfer to the experts’ jurisdiction three functions that should be exercised by the judge himself: investigating the facts of the case, assessing the evidence, and forming an opinion on which to base a decision. It is further argued that the judges sometimes inappropriately delegate to the expert purely legal issues, which leads one to suspect that they try to delay the proceedings, thereby lightening their heavy workload.55 If a civil court thinks the circumstances of the case so require, it may appoint one or three experts (but not two and not more than three!—article 135 of the 1968 law).56 Article 292 of the Egyptian Law of Criminal Procedure includes a different stipulation: the court is entitled, on its own initiative or following the litigants’ request, to nominate one expert or more.57 The number

Continuity and Reform

115

of court-appointed experts warrants further elaboration. I showed in chapter 1 that this question was obsessively dealt with by fiqh works and that the Sunni schools of law have different opinions on the question. The fiqh generally permits reliance on the report of one expert, especially if a second one is unavailable. Abd al-Hasib Yusuf, a Saudi Arabian law professor, comments in this respect that due to the vast spread of knowledge in the modern age, it is incumbent to have more than one expert in each case for the court to achieve a high level of confidence in the content of the expert testimony (mura¯a¯t altaaddud al-mat.lu¯b lil-istı¯tha¯q min al-shaha¯da).58 With regard to the required number of experts, it seems safe to conclude that Egyptian modern law has been inspired by French law rather than by the fiqh. According to the 1909 French Code of Civil Procedure, “expertise”— the most complex type of expert operation—required the court to appoint a minimum of three experts; however, as an exception, the parties could agree, conditional upon the court’s approval, on the nomination of a single expert. For purposes of better efficiency and cost saving, the new French Code of Civil Procedure of 1944 establishes that one expert is sufficient for all the situations in which the old code required three. The court may make a reasoned decision to appoint more than one expert only if the complexity of the case so requires.59 Interestingly enough, whereas French civil law changed its position in 1944, Egyptian civil law has preserved the old French version. The Egyptian criminal law of procedure, on the other hand, has adopted the recent French changes. Scholars of Continental legal systems hold differing opinions concerning the number of experts. The reasons provided by those who support one expert are expediency, cost saving, and better commitment of the expert to do his best. Those who support more than one argue that a single expert is more likely to err and that the opinion of a number of experts is more balanced.60 A few Egyptian legal writers hold that the reason for the uneven number of experts prescribed by the 1968 law is to prevent the need for tipping the scales between contradictory expert opinions; others, however, reject this reasoning.61 Uthman, writing before the promulgation of the 1968 law, supports the adoption of a new rule that would provide for the appointment of more than one expert. She does so for the same reasons that she favors having a number of judges rather than just one. She believes that a judgment rendered by a number of judges tends to be more just, less inclined to favor one party, more independent as regards each judge, and less prone to error. Using the same logic, she supports the appointment of two experts as a rule and the appointment of a third only if there is a need to tip the scales.62

116

Chapter Four

Currently, Egyptian law provides that if the litigants agree on the nomination of one expert or three, the court should approve their agreement (article 136 of the 1968 law).63 According to the Court of Cassation, even in cases in which the court nominates one or more experts, it may agree to the request of one or both litigants to consider the opinion of their (partisan) expert (he is then called an “advisory expert,” khabı¯r istisha¯rı¯ ).64 In criminal cases, the defendant is entitled to be supported by his advisory expert, who may review all the material presented to the court-nominated expert (article 88 of the Criminal Procedure Code). The relevant laws specify the procedures by which the court entrusts a particular expert to work on a specific case; alternatively, the court may ask the relevant experts’ office attached to the court to nominate the expert from among its employees (article 51 of the 1952 law; articles 135–36 of the 1968 law). The laws also specify the requirement of the litigants to pay a deposit to the court, which is used for securing the payment of the expert’s expenses and fees (article 137 of the 1968 law);65 the procedures by which an expert may excuse himself from working on a specific case ( article 52 of the 1952 law and article 140 of the 1968 law);66 the grounds for dismissing an expert from working on a specific case, such as the existence of blood or marriage ties between the expert and one of the litigants or the expert’s personal economic interest in the case (articles 141–45 of the 1968 law; article 89 of the Code of Criminal Procedure);67 and the experts’ entitlement to coverage of their expenses while performing their tasks and to payment of their fees (articles 55–60 of the 1952 law; articles 157–62 of the 1968 law).68 Upon nomination to work on a specific court case, the expert is obliged, within the time limit prescribed by the law, to summon the litigants, by way of formal registered letters, to appear before him with all their relevant documents and other evidence. The expert listens to the versions of the litigants, their witnesses, and any other person whose testimony the expert considers relevant to the problem he has been delegated to resolve. Every governmental body, institution, or company is required by law to enable the expert to read any document necessary for the completion of his task (articles 146–48 of the 1968 law).69 The Court of Cassation has determined that although the testimonies of witnesses in front of an expert are not equivalent to proper court testimony, they may serve as evidence for issues that may be established by circumstantial evidence (qarı¯na).70 After completing his work, the expert submits his reasoned report, accompanied by the detailed protocols of his work, all the relevant documents

Continuity and Reform

117

submitted to him, and a report on the number of working days invested in the case and the expenses involved (article 54 of the 1952 law; articles 149–51 of the 1968 law).71 If unable to complete his mission in due time, the expert may ask the court for an extension, and this request will be granted if the court deems his excuses justified. If it does not, the expert may be penalized or replaced by another expert (article 152 of the 1968 law). If the court believes it would be beneficial, it may summon the expert to a special court session in which he defends his opinion and responds to questions from the court or the litigants (articles 153 of the 1968 law and 293 of the Code of Criminal Procedure).72 The court may instruct the expert to amend his report on the basis of the court’s comments, or it may nominate one or three other experts to consider the information gathered by the original expert. In the course of the proceedings, the court may summon another expert to present an oral opinion without having to submit a written report in advance (articles 154–55 of the 1968 law).73 As in the fiqh, the most crucial point in the relationship between the court and the expert is that the experts’ opinions are not binding on the court (ray al-khabı¯r la yuqayyid al-mah.kama; article 156). This principle is reflected in the dictum “The judge is the expert of experts” (al-qa¯d.¯ı khabı¯r al-khubara¯).74 The lawyer Ibrahim justifies this article, on the grounds that the expert is no more than the court’s guide for scientific or professional questions (lam yakhruj al-khabı¯r an kawnihi murshidan al-qad.a¯ bi-rayihi fil-masa¯il alfanniyya).75 The Court of Cassation has emphasized in many of its rulings that the expert’s report or opinion is only one evidentiary component among many others that are subject to the court’s assessment ([ray al-khabı¯r laysa] . . . illa¯ uns.u¯r min ana¯s.ir al-ithba¯t allatı¯ takhd.a li-taqdı¯r mah.kamat al-mawd.u¯). The court may adopt the entire report or only parts of it. The court is not obliged to accept a request by a party to nominate an additional expert if it is satisfied with the opinion of the original expert. It may reject an expert medical opinion if other facts in the case support such rejection. It is not bound to accept the opinion of an expert who was nominated by it, and is entitled to accept instead the opinion of an “advisory expert” whom the court trusts, provided that its decision is supported by valid evidence. All in all, the precedents of the Court of Cassation emphasize time and again that the court is completely free to accept expert opinion or reject it, although such acceptance or rejection has to be reasoned and not arbitrary.76 The judgments of the Egyptian Court of Cassation attest to the court’s frequent resort to experts in a wide variety of fields. An example is a case in

118 Chapter Four

which the plaintiffs demand that interdiction (h.ajr) be imposed on a member of their family, on the grounds that his mental retardation prevents him from administering his property properly and causes him to conduct, under the pressure of interested parties, transactions that impair the interests of his potential heirs. In such a case, a psychiatric opinion on the defendant’s mental condition is required.77 A similar case is one in which the suspect argues that he is exempt from criminal liability due to his mental condition.78 However, a suspect’s claim to be exempt from criminal liability due to his minority may require a medical certification of age, because a considerable number of Egyptians do not have official birth certificates.79 Alleged rape cases require experts to conduct virginity tests on the complaining female and/or to inspect the suspect’s sperm.80 In cases of bodily assault, physicians inspect the injured party and report on the severity of the injuries and on whether they have resulted in a permanent deficiency or in death.81 To determine the exact time at which the cracks in a building were created, an opinion relating to engineering is required.82 The opinions of water and irrigation experts are needed in cases in which the litigants disagree about whether damage to a certain plot of agricultural land is the result of neglect by its owners or operations conducted in the neighboring plots by the Authority for the Improvement of Lands.83 Observers of the Egyptian judicial system have noted that the courts’ massive reliance on expert opinions has been a frequent cause of delays in the operation of the courts. The critics hold that by forwarding a wide range of issues to experts for inspection and advice, the judges rarely develop expertise of their own; they are not familiar with business practices, and as a result, they increase their dependency on the experts in any technical or commercial field.84 The same critical observation is regularly aired with regard to the Moroccan system, in which, so it is argued, judges believe that their responsibility with regard to a court case ends the moment they appoint an expert.85 According to these legal observers, a report by an expert often leads to responses from the litigants on points included in the report and to further questions addressed to the expert by the judge, which may postpone the court decision almost indefinitely. Moreover, the judges shift the blame for the delays onto the experts. On their part, interested litigants use the experts to delay the proceedings further. For example, since the Egyptian court system relies heavily on documentary evidence, a litigant’s claim of a forged signature on a document may delay the proceedings for a year. Even if such a claim is fraudulent, the litigant who made it is not punished. Thus, the identification of forged documents has become an art in itself in Egypt. For their part, the official experts complain about an unbearable workload, low salaries, and

Continuity and Reform

119

unpaid expenses. There are rumors of corruption among the experts, but, generally speaking, their reputation is better than that of other officials in the legal system.86

5. conclusion In this chapter I argue that the Ottoman Majalla reflects the Hanafi controversies with respect to the probative status of expert witnessing. For example, article 1685 defines female expert witnessing as a testimony (shaha¯dat al-nisa¯), while article 1689 stipulates that an expert deposition is categorized as information. By informing the court, the experts clarify the facts of a specific lawsuit. The term clarification (istiksha¯f ), innovated by the Majalla, has found its way into modern Arab legislation—for example, the Egyptian law of 1897, in which the term shaha¯dat istiksha¯f, meaning “clarifying testimony,” is used in this context to distinguish expert testimony from its standard counterpart. In Egyptian legislation, the inspection conducted by the expert is the judicial framework in which he functions in formulating his opinion. “Inspection” is clearly differentiated from “standard testimony” and from “circumstantial evidence.” Legal writers suggest a couple of options for defining the position of the expert vis-à-vis the judge, which do not necessarily exclude each other: the expert is the qadi’s delegate or deputy for investigating a case, or he is the qadi’s professional adviser. Borrowings from fiqh traditions are almost nonexistent. The classical jurists’ obsessive engagement with the probative status of expert testimony has left almost no mark. The majority of modern Egyptian legal texts do not even pay ceremonial homage to these premodern debates. Modern legislation on the number of experts seems to be informed by purely pragmatic considerations, such as tipping the scales between contradicting expert opinions, efficiency, and cost saving.87 In the way in which the modern Egyptian state organizes society, the organization of expert testimony is highly centralized, bureaucratic, hierarchical, and structured. It is clearly closer to the European civil-law model than to the Anglo-American common-law one. From a practical point of view, the advantages of the Egyptian expert system as well as its deficiencies are similar to those of its French and German counterparts. On the one hand, the expert in these systems, being court appointed, is more objective than the partisan expert of the Anglo-American system. On the other, in civil-law systems the court’s supervision of the expert is inefficient, so the latter amasses a lot of power and becomes the de facto decision maker. The Anglo-American sys-

120 Chapter Four

tems possess better means for restricting the expert’s jurisdiction, because the experts are partisan witnesses and may be cross-examined by the litigants’ attorneys. The differences between the civil- and common-law systems with respect to the organization of experts are mainly the result of different legal cultures, the inquisitorial on the one hand and the adversarial on the other. The main principles of each model are deeply rooted and are unlikely to change anytime soon. Judges in civil-law systems are therefore advised to train themselves to the point where they attain the ability to supervise the work of experts and criticize it, even if their level of knowledge is inferior to that of experts.

chapter five

Revealing the Secrets of the Body: Litigants, Courts, and Modern Medicine in Egypt

The main theme of this chapter is the incorporation, through expert witnessing, of evidentiary findings based on modern medicine into Egyptian family (and civil) law litigation. The broad aspects of this theme were detailed in the introduction, making it unnecessary to repeat that information here. The discussion in this chapter involves, inter alia, litigants’ strategies regarding the use of documents based on modern medical inspections in the litigation process to promote their individual interests, thereby challenging, perhaps unintentionally, traditional social and familial conventions. The courts, for their part, have carried the formidable burden of maintaining these traditional conventions and at the same time adapting their decision making to new medical technologies. Analysis of court practice demonstrates the extent to which law can change without altering its traditional categories and concepts, such as “prejudice caused to a wife by her husband” or “mortal sickness”; the latter remain intact, but their meanings have changed.

1. medical experts in personal s ta t u s l aw s u i t s This section deals with the use of medical examinations in the framework of family-law court cases. The main question arising in this respect is why certain kinds of medical examination have been acceptable to judges, whereas other types have been only reluctantly accepted. Before surveying the various aspects of family law that involve medical examinations, let me remind the reader that the medical treatment of females by

122

Chapter Five

males was anathema to premodern ulama, and they prohibited it except in cases of dire necessity. During the modern period the number of female physicians has increased considerably, but the attitude of the ulama has remained basically the same. In 1985 the highest authority on fiqh in the contemporary Muslim world, Majma al-Fiqh al-Islami, reaffirmed the basic prohibition on the treatment of females by males and ruled that in cases in which such treatment is necessitated because a female practitioner is unattainable, the inspected female must be accompanied by a close relative or another female.1 Another issue that occupied the premodern ulama—namely, the religious affiliation of the treating physician—has remained a concern for the modern ulama. They insist that the attending physician be a Muslim, because a nonMuslim may be hostile to the patient and lead her astray in the religious sense. If, however, a Muslim physician is not available, it is permitted to consult a non-Muslim one, provided he or she is reliable. Thus, if a Muslim female needs medical treatment, she should approach first a Muslim female physician, then a reliable non-Muslim female physician, then a Muslim male physician, and, as a last resort, a reliable non-Muslim male physician. This order of priorities, established by Majma al-Fiqh al-Islami in its 1985 resolution, demonstrates that the prohibition on cross-gender medical treatment is stronger than that on cross-religion medical treatment.2 If, however, the medical problem is associated with an aspect of Islamic worship, it is essential to consult a Muslim physician.3 1.1. Determination of Age Egyptian law specifies a minimum age at marriage: sixteen for a female and eighteen for a male. The law prohibits the courts from considering a marriage lawsuit in which one of the spouses (or both) is under the minimum age—“at the time of marriage” according to the 1923 version of the law or “at the time of the lawsuit” according to the 1931 version.4 Since during the 1930s many Egyptians did not have official birth certificates, article 34 of the Regulations for Marriage Officials specified two acceptable courses for a marriage notary (madhu¯n) to determine whether the party in question has attained the legal age: (1) a birth certificate or any official document proving the date of birth; or (2) a medical certificate, issued by the Ministry of Health or a community health center, showing the estimated date of birth—unless circumstances indicate that the individual is obviously above the legal age.5 The validity of a medical certificate as a formal proof of age opened the door to fraud by those interested in marrying off minor couples. In two cases

Revealing the Secrets of the Body

123

heard by the sharia courts, it appeared that the minor bride did have an official birth certificate, yet the marriage notary who concluded her marriage contract was told, by her paternal relatives or by the woman herself, that she did not have one. Instead, the relatives presented the notary with a medical report testifying that the girl was above the minimum age for marriage. In the first case, the report was signed by two medical doctors. In the second, it was signed by a physician who worked at a community health center.6 Some scholars have suggested that medical doctors were bribed to supply false evidence regarding the couple’s ages, which is a criminal offense according to the Egyptian Penal Code.7 This may have taken place in some cases, although my impression is that physicians more frequently were misled by their patients. In a few cases heard by the civil courts, it appeared that the female who approached the doctor and asked for a certificate of age was not the minor girl who was the candidate for marriage, but a mature woman who assumed the name of the candidate. According to the Court of Cassation, in such circumstances doctors are exempt from criminal liability, because they are not required to establish the true identity of their patients.8 Due to the frequency of such deceptions, the Ministry of Justice promulgated a new version of the Regulations for Marriage Officials in October 1955, according to which a medical certificate of a marriage candidate’s age may be issued only by an official medical agency (taftı¯sh al-s.ih.h.a, or al-majmu¯a als.ih.h.iyya, or markaz ijtima¯ı¯ ). Moreover, the certificate (carrying the official seal of the medical office) has to include a photograph of the candidate, the signature of the physician, and the fingerprint of the candidate.9 1.2. Physical Diseases and Mental Disorders of the Husband The 1920 family law defined defects and diseases of the husband as grounds for separation (tafrı¯q) of the spouses on the wife’s initiative. Specifically, the law referred to a chronic affliction (ayb mustah.kam), such as lunacy or leprosy, which was either incurable or curable only after a long period, and as such would be injurious to married life. Article 11 of the law provided that the court should consult medical experts concerning the disease mentioned in a wife’s lawsuit.10 It seems that only a small number of lawsuits were submitted by wives on these grounds. In one case, the medical report established that the husband was mentally ill and addicted to drugs, and that his recovery was uncertain. The court therefore dissolved the marriage.11 In another case, the court turned down the wife’s lawsuit, because the medical examination did not establish

124

Chapter Five

that the husband suffered from a venereal disease.12 According to a field study conducted during the 1970s, Egyptian qadis broadened the interpretation of the term affliction to include diseases other than lunacy and leprosy, and they usually asked for a medical opinion regarding the anticipated duration of the husband’s recovery.13 Sexual impotence (inna) of the husband is a cause for dissolution of marriage.14 According to the Hanafi school of law, if the wife claims that her husband is impotent and unable to consummate their marriage, and asks that the marriage be dissolved, the qadi is obligated to grant the husband a grace period of one lunar year to prove his ability to consummate the marriage. If, after the passage of the grace period, the wife repeats her original claim, while the husband argues that he has succeeded in consummating the marriage, one of two procedures must be followed. If the wife was a virgin (bikr) at the time of the marriage, her virginity has to be established by a reliable female expert (imraa laha¯ khibra mawthu¯q bi-ada¯latiha¯). If the expert testifies that the wife lost her virginity as a result of sexual intercourse, the husband’s claim is accepted together with his oath. If he refuses to swear an oath, the wife’s claim is accepted, and she may choose either to stay with her husband or to separate from him. If the expert finds that the wife is still a virgin, the wife’s claim is accepted together with her oath. The second procedure pertains if the wife was not a virgin (thayyib) at the time of marriage. In this case the husband’s claim is accepted together with his oath, without the wife’s being physically examined. The jurist al-Jaziri (d. 1941) accepts the use of measures to verify the husband’s ability to engage in sexual intercourse, analogous to the use of a physical examination to determine if a wife has a congenital physical defect that prevents her from engaging in sexual intercourse. A reliable physician, adds al-Jaziri, might end the dispute by a simple physical examination, thereby saving the wife from suffering any further injury (d.arar).15 Because Egyptian legislation has not intervened in the issue of the husband’s impotence, the qadis of the sharia courts have continued to apply Hanafi law in this respect. Following a wife’s demand for dissolution on the grounds that her husband had not been able to consummate their marriage, the qadi granted the husband a grace period of one lunar year and instructed his wife to apply to the court at the end of this period if the problem still existed.16 When a husband argued that he had consummated the marriage by normal sexual intercourse, whereas his wife claimed that he had broken her hymen with his finger, but could not establish her claim, the qadi held that the husband’s claim should be accepted together with his oath, since the wife’s claim ran counter to the normal situation (khila¯f al-z.a¯hir).17 In 1926 the sharia court in Sharabin

Revealing the Secrets of the Body

125

instructed a wife who claimed she was still a virgin to be examined by a female expert. The latter swore an oath that she had found the wife to be a nonvirgin. Following that, the husband swore that he had succeeded in consummating the marriage. The wife’s claim for dissolution of marriage on the grounds of her husband’s impotence was therefore turned down.18 In a few cases, the national courts (which succeeded the sharia courts after 1955) sent husbands accused of impotence for medical examination. In 1956 the Cairo Court of First Instance argued that verification of impotence was difficult and that physicians did not have a decisive opinion on this defect, since a man’s capability to engage in sexual intercourse might change with different women over time. The court held that the use of the traditional means of evidence, such as the husband’s oath, was still applicable.19 In a 1959 case, a state physician found that the husband’s male organs were normal (he was mutakammil al-ruju¯la), and the Alexandria Court of Appeal therefore reversed the decision for dissolution of marriage handed down by the lower court.20 In 1981 surgery performed on the husband in an attempt to cure him of his impotence caused a secondary problem that made intercourse with him abnormal (wiqa¯ sha¯dhdh). A physician testified that the new defect had the potential of inflicting nervous and venereal diseases on the wife. The Court of Cassation therefore held for dissolution of the marriage.21 Two identical decisions by the Court of Cassation, in 1976 and 1977, addressed cases in which, following the wife’s demand for dissolution on the grounds of the husband’s impotence, both spouses were examined by a state physician. The latter concluded that the wife was still a virgin, while the husband did not suffer from permanent organic impotence (al-inna aludwiyya al-da¯ima); his impotence might have resulted from mental causes and therefore could be temporary and curable. On the basis of the medical report, the lower court decided on dissolution, taking into consideration that the husband’s condition had continued for more than one year before the date on which the wife filed her lawsuit. The Court of Cassation reversed the decision, arguing that, according to Hanafi doctrine, the grace period of one year had to be counted starting from the date on which the court issued its decision.22 Dupret, in a detailed description and examination of a judicial divorce case from an Egyptian national (personal status) court, exemplifies the centralized judicial supervision of the process of fact-finding. This case, in which the impotence of the husband was included as a ground for divorce, highlights the orientation of law practitioners (in this case the judge and the medico-legal expert) toward procedural correctness and legal relevance. This orientation

126

Chapter Five

reflects their anticipation of the possible further uses of the official reports they must produce, their bureaucratic resistance to the possibility of being overruled, and their preference for conformity. The general structure of the medico-legal report in this case demonstrates three points: (1) the physician produced all the evidence needed to attest to his being qualified to act and to his mastery of the formal, procedural, and medical technicalities that made it possible for him to produce a document called the “medico-legal report”; (2) the physician mentioned that his report was part of a more comprehensive procedure being followed in the adjudication of a case that was transferred to the forensic physician by the court, asking him to produce an expert opinion with regard to the alleged impotence of the husband, on the basis of which the court would elaborate its ruling; (3) in anticipation of its further uses by the court, the report addressed all the issues that might be deemed relevant by the judge—namely, the defendant’s general health, his previous medical record, and so on. More important, the report suggested to the judge the possible characterization of the condition as one that, by its nature, precluded any clinical examination—namely, psychological impotence. While the forensic physician merely proposed this characterization as a possible explanation without drawing any conclusions as to its certainty, the judge subsequently relied on this opinion as if it were a matter of scientifically established fact. Dupret concludes that the forensic physician’s report is equally oriented toward the accomplishment of its procedural correctness and toward the production of categories of legally relevant facts and people. The forensic physician’s medical report is largely directed at the construction of the record, which, in turn, is largely directed at its future readers. This record looks backward to establish the medical circumstances of the case and show its procedural correctness, and it looks forward to its use as evidence in the judicial process; it not only contains the facts but also displays those elements that are legally required, in that it establishes that the necessary conditions have been met that can lead to the assimilation of a physical situation into the legal category of male impotence.23 A prejudice that a wife suffers from may be caused directly by a bodily injury inflicted on her by her husband. The 1929 family law specifies injury (d.arar) as grounds for dissolution of the marriage on the wife’s initiative. Injury includes the use of physical violence by the husband against his wife. In many cases, a cruel beating (d.arb mubarrih.) resulted in the lengthy hospitalization of the wife. A wife who had been physically abused usually complained about her husband to the public prosecutor. The latter sent the

Revealing the Secrets of the Body

127

woman for a medical examination, and the medical report formed part of the evidence in the criminal procedure against the husband in the civil court. If an abused woman chose to submit, in addition to the criminal lawsuit against her husband, a claim for dissolution of the marriage on the grounds of physical cruelty, she often presented the same medical reports in the sharia court in an effort to substantiate her claim, and the qadis took these reports into consideration.24 Another circumstance under which such reports were submitted was when a rebellious woman (na¯shiza) tried to justify her refusal to return to the marital home on the grounds that her husband was beating her.25 1.3. Physical and Mental Condition of Minor Children According to Hanafı¯ law, a mother’s custody of her minor children (h.ad.a¯na) terminates when her son or daughter reaches the ages of seven or nine, respectively. The 1929 law authorizes qadis to prolong the mother’s custody for two additional years if the child’s interests necessitate it.26 A child’s health was the most important factor considered by the qadis. Verification of this health was based on medical reports produced at the request of either the mother or the court.27 In one exemplary case from the mid1930s, a Cairene mother asked to prolong her custody of her eleven-year-old son beyond the statutory maximum age for custody, on the grounds that his father (her ex-husband), who was demanding custody, was working and residing in Aswan, where the climate was harmful to the boy, who suffered from a liver ailment. According to a medical examination ordered by the court and conducted by an official medical inspector, including an X ray, the boy had an enlarged liver (ih.tiqa¯na¯t kabdiyya). The physician wrote that the hot climate in Aswan had a negative influence on people with liver ailments, but the qadi of the Court of Summary Justice in the Cairene neighborhood of al-Sayyida Zaynab found against the mother, on the grounds that since only Allah could rescue the boy from his illness, there was no reason to deprive the father of his custody rights, anchored in the sharia. The mother successfully appealed the decision: the Cairo Court of First Instance ruled that the boy’s interests were superior to those of his father, and that the boy could continue living with his mother until he was cured or his father changed his place of residence.28 Some qadis, aware that physicians could be bribed to provide false reports, were suspicious of statements submitted by physicians not authorized by the state.29 These qadis preferred to rely on their own visual impressions of a child’s physical condition rather than on a medical report. In some cases, a qadi’s visual impression was that the child was weak and he therefore prolonged

128

Chapter Five

the custody, even though the medical report stated that the child was healthy.30 In other cases, the court held that the child was sufficiently mature and independent and therefore decided to transfer him to his father’s custody, contrary to the medical report’s recommendation to leave him with his mother.31 1.4. Pregnancy Tests In the fiqh, the waiting period (idda) that the divorcee has to observe lasts three menstrual cycles (or, alternatively, three months) or, if the divorcee is pregnant, until she gives birth. The waiting period serves two purposes: first, it enables the husband to reinstate his wife, conditional upon the divorce being revocable (rajı¯ ); second, it prevents future disputes about paternity in the event that the divorcee is pregnant. But a wife who is divorced prior to consummation of the marriage does not have to observe a waiting period, because the reinstating issue is irrelevant (such a divorce is final, ba¯in), as is the issue of pregnancy. Also, such a divorcee is entitled to only half the specified dower. What happens, though, when it is disputed whether a divorce took place prior to consummation of marriage or subsequent to it? In the subsections that follow, I present four court cases in which such a dispute took place. A sharia court case: Was Hafiza pregnant when Muhammad divorced her? 32 In 1936 a man called Muhammad argued at the sharia court of summary justice in Abidin, Cairo, that he had divorced his wife Hafiza prior to consummation of the marriage. Hafiza countered that she was pregnant by him. The qadi suggested that Hafiza be examined by the chief state physician to determine whether she was a virgin or pregnant. Both spouses accepted the offer, and Muhammad declared that he would acknowledge paternity if she was found to be pregnant. The examination revealed that Hafiza was neither a virgin nor pregnant.33 Supported by the inspection’s results, the qadi handed down an innovative decision: Hafiza did not have to observe a waiting period from the date of the medical examination, because the raison d’être of a waiting period—to make sure that a divorcee is not pregnant—was irrelevant to the case. This judgment was reversed on appeal by the Cairo Court of First Instance, which probably represented the majority opinion among Egyptian qadis. Referring to the lower court’s use of a medical inspection, the three qadis of the appellate court said that the lower court had utilized a “new scientific legal device” (t.arı¯q sharı¯ ilmı¯ jadı¯d ) to discover the truth of the case. The qadis maintained, however, that the purpose of the waiting period was not limited to verifying a divorcee’s pregnancy but was also intended to mani-

Revealing the Secrets of the Body

129

fest the high moral value attributed to the marriage bond by the Quran. As a result, the court ruled that Hafiza’s waiting period should last until she acknowledged that she had experienced three menstrual cycles. A civil court case: Did Fatima lie about being pregnant by her deceased husband? 34 Another judicial context in which pregnancy tests have been relevant was in lawsuits involving inheritance rights, when it was suspected that a woman falsely claimed to be pregnant by her deceased husband in order to secure these rights for an unrelated child (for example, a child she was planning to adopt). In one such lawsuit, from 1935, the plaintiff, Muhammad, claimed that his deceased relative, who was already an old man and therefore incapable of fathering a child, had married the defendant, Fatima, in order that she serve him. After he died, said Muhammad, she falsely claimed to be carrying the deceased’s child to deprive him (Muhammad) of his inheritance rights. Muhammad submitted a lawsuit to the magistrate of summary justice at the Alexandria Indigenous Court of First Instance, demanding that a state physician test Fatima to verify her pregnancy. He declared that he needed this medical examination as evidence for the lawsuit he was planning to file against Fatima at the sharia court. The decision of the judge summarizes Egyptian judicial practice concerning this topic. The judge decided that he was not competent to decide the case, on the grounds that lawsuits involving paternity were under the exclusive jurisdiction of the sharia courts. The judge explained that the fiqh prohibits the physical examination of women by men. Only a reliable woman or a midwife is permitted to examine women to determine pregnancy or birth. The physical examination of women by male physicians violated Egyptian social customs (al-a¯da¯t al-ijtima¯iyya fil-bila¯d), especially if that woman, as in the case before him, objected to the examination. Moreover, said the judge, it was agreed in the framework of the general principles of the sharia that a judge should make an effort to confirm paternity even in suspicious cases. Additionally, the fiqh encourages the affiliation of a child to his mother’s husband, even if such affiliation runs counter to the factual circumstances. This policy seeks to safeguard the validity of paternity and the honor of family ties.35 Another civil court case: Was Naima carrying the child of her late husband Abd al-Salam? 36 In a similar case from the indigenous courts, two women, Aziza and Naima, were married to Abd al-Salam. Aziza had minor children by him, while Naima had none. When he died on 10 October 1942, both widows formally declared that they were not pregnant. Subsequently, Naima changed

130

Chapter Five

her mind and stated in front of the representative of the guardian (h.asbı¯ ) court37 that she was pregnant by the deceased (indaha¯ h.aml mustakann). This led to the confiscation of a male child’s share from the deceased’s pension, to be kept for Naima’s future child. Aziza argued that Naima had fabricated her pregnancy to undermine the inheritance rights of Aziza’s children, and asked the judge to send Naima for a medical examination by the chief state physician. As in the previous case, the judge ruled that the lawsuit was under the exclusive jurisdiction of the sharia courts. Referring to the 1929 family law applicable in these courts, the judge added that the period of one solar year, which is the maximum length of pregnancy in paternity claims, had not yet passed in this case. A guardian court case: Was Fatima carrying the child of her late husband Sayyid? 38 While the indigenous courts avoided subjecting women to pregnancy examinations by a male physician, the guardian courts, in similar circumstances, ordered such women to be examined by a female expert. In one case, when a man called Sayyid died on 17 May 1935, his widow Fatima argued that she was pregnant by him for three months. Accepting her claim, the guardian court, on 1 June of the same year, nominated her as guardian (was.iyya) of the fetus until its birth. On 21 July, one of the deceased’s heirs, Husayn, asked the Cairo guardian court to investigate whether Fatima was indeed pregnant, by subjecting her to an examination by a reliable female expert. Fatima’s legal representatives responded that since no new facts that could affect the case had been discovered, the court was not authorized to change its previous decision to nominate her as guardian. In their decision, the three judges of the guardian court ruled that it was permissible for the court to investigate whether the factual situation had changed. Four months had elapsed since the court handed down its first ruling, which entitled the court to get a firsthand visual impression of Fatima’s advanced pregnancy. The court therefore asked her father to bring her to court. Both failed to appear without justification. The court considered this absence as circumstantial evidence that Fatima was not pregnant. To prevent damage to the deceased’s other heirs, the court canceled the guardianship of Fatima over her (real or imaginary) fetus.39 1.5. Birth In chapter 3, section 6, I showed that a woman may try to blackmail her exhusband by falsely claiming that she gave birth subsequent to the divorce.

Revealing the Secrets of the Body

131

As demonstrated by the following two narratives, the question faced by the courts in such cases was not the identity of the baby’s father, but whether the woman who submitted a paternity lawsuit had given birth at all.40 The public prosecutor and the sharia court: Did Hafiza give birth to Ramzi, and was Ramzi the son of her ex-husband Ahmad? 41 In the mid-1930s, an Alexandrine called Hafiza argued that the father of her baby son Ramzi was Ahmad, who had divorced her about six months before she gave birth. Her witness was a midwife named Amina, who testified to being present at the birth. Learning about this claim, Ahmad hurried to the public prosecutor, arguing that his ex-wife had never given birth and requesting that the case be investigated. Classical Hanafi jurists differ about the type of testimony needed for establishing paternity in these circumstances, in which the husband did not acknowledge the pregnancy before the delivery and the pregnancy was not visible—that is, there are no witnesses who can testify that they have seen the woman pregnant. Abu Hanifa requires a standard testimony (by two male witnesses) to the effect that the woman gave birth. To the contrary, his students, the Sahiban, hold that the testimony of a single midwife is sufficient.42 In our case, the public prosecutor summoned Hafiza and the midwife for investigation and later sent Hafiza for a medical examination. The blood of Hafiza, Ahmad, and the boy Ramzi was also tested. In the medical report, the state physician wrote that Hafiza was in her fifties, that Ramzi was neither her son nor Ahmad’s, and that Hafiza had never in her life been pregnant. On the basis of this report, the public prosecutor initiated a criminal lawsuit against Hafiza and the midwife, on the grounds that they had conspired to affiliate a child to a man who was not his father. At the same time, Hafiza submitted a lawsuit to the sharia court of Karmuz, Alexandria, requesting the court to affirm Ahmad’s paternity of Ramzi and instruct Ahmad to support the child. The civil court, which had begun to discuss the criminal lawsuit, decided to postpone its discussions until after the sharia court handed down its decision. The qadi of the Karmuz sharia court had to evaluate three types of evidence: first, oral testimonies regarding the birth submitted by the midwife and two male witnesses; second, a birth certificate in which Ramzi was registered as the son of Hafiza and Ahmad; and third, the medical report. Hafiza claimed that the medical report was not decisive evidence against her. First, the physician had not found a clinical impediment to her becoming pregnant, though he negated the possibility that she had given birth to a baby developed enough to survive. Second, medical reports in general may be mistaken; at best

132

Chapter Five

they have the evidential value of probability (z.ann). She therefore demanded that the court affirm Ahmad’s paternity on the basis of the oral testimonies and the birth certificate, and according to the fiqh presumption—namely, that “the child is affiliated to the [marriage] bed.”43 The qadi rejected Hafiza’s claim, on the grounds of both the medical report and other pieces of evidence. According to the fiqh, a midwife’s testimony is satisfactory evidence against a man who denies paternity of a child born to his divorcee within the maximum period of pregnancy. In our case, the qadi rejected the midwife’s testimony after discovering serious contradictions between her version and Hafiza’s, and also among several versions given by the midwife on different occasions. These contradictions related to the location and date of the birth, the duration of the birth process, the length of the midwife’s stay with Hafiza, the presence of additional persons at the place of birth, and the official process of registering the child. The qadi also rejected the oral testimonies of two men who supposedly had been present at the place of birth, arguing that their hearsay testimonies carried no weight after the eyewitness testimony of the midwife had been rejected. The qadi rejected the probative value of the birth certificate as well, since the midwife had forged the child’s registration. The qadi supported his decision with circumstantial evidence, some of which was medical in nature. For example, that Hafiza had not given birth during seven years of marriage and had received no fertility treatment during this time made the possibility of her giving birth after divorce and at an advanced age remote. Finally, the qadi turned down Hafiza’s lawsuit, on the grounds that, with the collaboration of the midwife, she had plotted to affiliate to Ahmad a boy who was neither his son nor hers.44 A sharia court case: Was it possible that the late Fatima had given birth to Muhammad at the age of sixty? 45 The novelty of the next case is that the Supreme Sharia Court consulted a medical expert on the probability of a sixty-yearold woman giving birth. In 1948 the Cairene plaintiff, Jalila, aged forty-five, claimed that she was entitled to half the estate of her late mother, Fatima, who had died in Alexandria in 1946 at the age of sixty-two. But Abd al-Hamid, one of the defendants, the husband of the late Fatima (who was not Jalila’s father), claimed that Fatima had given birth to his son one and a half years before she died. Therefore, he argued, the boy, named Muhammad, now aged three, was one of Fatima’s legal heirs, thereby reducing Jalila’s portion of her mother’s estate. Jalila denied that her late mother had given birth to a child shortly be-

Revealing the Secrets of the Body

133

fore she died. She argued that such a birth was impossible, since her mother had reached the age of menopause (sinn al-yas) long before she died. The Sharia Court of First Instance in Alexandria decided against the plaintiff Jalila, on the following grounds. First, a midwife named Nafusa testified that she had attended the birth of Muhammad. In response to the court’s inquiry, she said that, according to her professional experience, it was common for women to give birth until the age of forty-eight or fifty. Second, there were oral testimonies by two witnesses (probably hearsay evidence to the effect that Fatima had given birth). Third, there was a marriage contract between Fatima and Abd al-Hamid; fourth, in the birth certificate of the child Muhammad, Fatima and Abd al-Hamid were registered as his parents; fifth, fiqh doctrine holds that even after reaching fifty-five, the age of menopause, it is possible for a woman’s menstruation to resume, so that she may give birth at a late age, such as seventy years old; six, Abd al-Hamid acknowledged his paternity of the child Muhammad; and seven, Muhammad had been born while his mother was a married woman. Jalila appealed the verdict to the Supreme Sharia Court, which asked the chief state physician the following question: According to scientific and medical studies, what is the maximum age at which a woman may become pregnant and give birth? The doctor responded in writing that 11 percent of women reach the age of menopause between the ages of fifty and fifty-five; fifty percent between the ages of forty-five and fifty; twenty five percent between the ages of forty and forty-five; and twelve percent between the ages of thirty-five and forty. Yet in two registered cases that the doctor was aware of, menstruation continued uninterrupted until the ages of sixty-six and seventythree, respectively. The doctor concluded that it was possible that Fatima had given birth in her late fifties, although this possibility was remote. On the basis of this opinion and the evidence presented to the lower court, the Supreme Sharia Court affirmed the latter’s verdict, thereby rendering the child Muhammad the legitimate son of Abd al-Hamid and the legal heir of his late mother, Fatima. In a 1982 decision, the Court of Cassation questioned the authority of a medical opinion. In this case, the official medical inspector wrote that the woman concerned had given birth to a dead fetus in the eighth month of pregnancy. But the Court of Cassation held that since the physician had not attended the birth in person, his opinion, based on his professional knowledge, could be refuted by contradictory evidence to the effect that the same woman had given birth to a live baby.46

134 Chapter Five

1.6. Conclusion of Section 1 On the basis of the court documents, it may be concluded that the use of medical reports as legal evidence increased gradually during the twentieth century. It was not only the courts that appealed to expert opinions; litigants often came to the court already equipped with certificated medical reports. Such reports have been presented to the courts in new judicial contexts—for example, in claims for the judicial dissolution of marriage and in claims for the prolongation of the mother’s custody of young children. The development of new medical techniques has provided the courts with more accurate means on which to base their decisions. For example, impotence examinations for males were introduced, as well as X rays,47 blood tests (to establish maternity and paternity), and psychological assessments. Although the traditional medical practitioners—such as “knowledgeable women” and midwives (qawa¯bil; da¯ya¯t)—were still active during the first half of the twentieth century, the dominance of modern midwives (h.a¯kima¯t)48 and physicians of both sexes, graduates of institutions for medical training, has grown. Medical professionals who are state employees are usually more trusted by the courts than independent physicians. In spite of the continued significance of social and moral inhibitions against the examination of females by male medical experts, such inhibitions have been well shaken up—as is attested by the increasing number of cases in which both spouses are examined by male physicians. One case that clearly demonstrates the confrontation between old and new is the above-mentioned case of Hafiza and Ahmad, their “son” Ramzi, and the midwife Amina: on the one hand, a divorced woman and a bribed midwife who fabricated a birth for purposes of monetary gain; on the other, the use of modern gynecological and blood-group tests to prove that Hafiza had never given birth and that she and Ahmad were not the parents of Ramzi. In the traditional court system, such fraud could have succeeded, but it could not in the modern one, equipped as it is with modern medical tools. Generally speaking, the courts initiated medical tests of litigants in cases of need and respected medical opinions; yet they did not necessarily act on the recommendations of medical opinions, sometimes preferring their own firsthand impressions. From the qadis’ point of view, virginity, pregnancy, and birth inspections were more sensitive than other types of examination, particularly if they had potential ramifications for the establishment of paternity, such as depriving a particular child of having a legal father. This issue is dealt with in the next chapter.

Revealing the Secrets of the Body

135

2 . m o r ta l i l l n e s s 2.1. Legal Definitions of Mortal Illness Classical Muslim jurists developed the theory of “mortal sickness”49 (marad. al-mawt) on the assumption that a person foreseeing his imminent death may be inclined to contract transactions relating to his property that prejudice the rights of his legal heirs or creditors. To defend the latter, the jurists prescribe that any donations made by a person on his deathbed in favor of a legal heir are not operative unless approved by the other heirs subsequent to the sick person’s death. By the term donation, the scholars refer not only to a gift (hiba¯) but also to a fabricated sale—a sale in which the buyer paid nothing—or to a waqf. If the donation favors a person who is not a legal heir, it is operative for one-third of the deceased’s property, similar to a last will and testament (was.iyya). Put differently, the limitations imposed on the transactions of the mortally sick person are intended to prevent him from evading his debts and from willing his property to one or more of his legal heirs at the expense of the others (which is why most fiqh books deal with this issue in the chapter on last wills and testaments).50 The limitations placed on the freedom of a mortally sick person to transact his property have no equivalent in other legal systems.51 The category of mortal illness applies not only to monetary transactions but also to divorce. If a mortally sick husband divorces his wife unilaterally, the divorce is valid, according to all the Sunni law schools, but the schools vary on whether the divorcee maintains her inheritance rights. The Malikis hold that since by the divorce the sick husband intended to unjustly deprive her of her inheritance rights, she inherits from him even if her waiting period (idda; iddat al-t.ala¯q) ended and she married another man; the Hanbalis hold that she inherits from him only if she did not marry another person prior to her husband’s death; the Hanafis argue that she inherits from him only if she was still observing her waiting period when her husband died; and the Shafiis prescribe that she does not inherit from him at all because the marriage bond, which is the basis of her inheritance rights, ended (through the divorce) before the sick person’s death.52 Since mortal sickness is defined as the disease from which a person dies (marad. ittas.ala bihi al-mawt), the question whether he concluded any transactions on his deathbed can be answered only after he has died and his heirs or creditors contest the legality of the deceased’s transactions. For example,

136

Chapter Five

the Andalusian Maliki jurist Ibn al-Makwi (d. 1010) is asked about a mortally sick person who acknowledged in the presence of witnesses that he had sold his entire property to his son-in-law and accepted the payment, and that his only heirs were his wife and daughter. Subsequent to his death, his wife contested the transaction in court. The mufti responds that, since the deceased acknowledged the sale while on his deathbed, his affirmation to have accepted the sale price was legally effective only if the exchange had been observed by witnesses.53 On top of the objective criterion—that the sickness is the direct cause of death—the jurists require a subjective criterion—that the disease is such as to cause fear (marad. mukhawwif ), or, to put it differently, that the sick person fears his death is approaching.54 This definition, however, poses a practical difficulty, because it is hardly possible to ascertain what the deceased felt at the time he contracted his last transactions. Muslim jurists had therefore to develop secondary objective criteria for defining mortal sickness. The first objective criterion is that, according to medical knowledge, the disease creates a strong likelihood of death. This high probability permits inferring that the one inflicted with that disease feared death.55 Informed by the medical knowledge of their time, the premodern jurists agreed that certain medical conditions are mortal. Among such conditions are a steady high fever (h.umma¯ h.a¯dda or mut.abbaqa or al-h.umma¯ al-s.a¯lib), pleurisy (dha¯t al-janb), colic (qawlinj or qawlanj), constant nosebleed (al-rua¯f al-da¯im), intractable diarrhea (isha¯l mutawa¯tir), especially if bleeding is involved, and the plague (t.a¯u¯n). Other diseases that were considered mortal are scabies ( jarab), leprosy (baras.; judha¯m), and eye disease (ramad). The Hanafis, Shafiis, and Hanbalis consider chronic diseases mortal only in their final stage, an example being tuberculosis (sill; the Malikis, however, regard it as a frightening disease without reservation). The same is true with regard to the disabled (muqad) and the semiparalyzed (maflu¯j) until their sickness confines them to bed. A few Hanafis hold that custom (that is, practical medical knowledge) decides whether a certain disease is chronic or mortal. The dominant view of the school is, however, that a disease becomes chronic if it persists for a year. In other words, if a person is sick for more than a year, all the transactions he contracts in the course of his malady are valid. If the sick person dies within one year of steady deterioration of his malady, he is considered mortally sick from the beginning of that deterioration. If applying the above criteria still leaves the qadi uncertain about the definition of a certain disease or about its dangerous nature, he has to consult physicians.56 Modern jurists apply the criteria of the fiqh to newly discovered maladies.

Revealing the Secrets of the Body

137

For example, in response to a query about whether AIDS is a mortal sickness, an unidentified mufti responds that mortal sickness is a disease that makes the sick person feel that he is approaching death. According to current medical knowledge, it may take several years, sometimes ten years or more, from the date of contagion until the eruption of AIDS. As a result, the mufti concludes, AIDS should be considered a mortal sickness only after the eruption of the disease, when the person is no longer able to maintain his daily routine and senses that his death is near.57 According to the fiqh, the second objective criterion for mortal sickness is that the disease prevents the sick male from attending to his business outof-doors58 or the sick female from attending to her domestic chores. For example, the seventeenth-century mufti Kayr al-Din al-Ramli is asked about the validity of an acknowledgment (iqra¯r) made by a sick person (his face became yellow and there was a change [sic] in his body) to the effect that his entire property belonged to his brother. At the time he made this acknowledgment, he was still maintaining his daily routine and was not confined to bed. AlRamli responds that the acknowledgment is valid, because the person was considered healthy as long as he maintained his out-of-doors mobility. He cites the work al-Jami al-Saghir (ascribed to Abu Hanifa) to the effect that anyone afflicted with tuberculosis or high fever is considered healthy as long as he is not confined to bed.59 The Hanafi Ibn Abidin finds this second criterion problematic. On the one hand, he says, there are people unable to leave their house even before they become mortally sick—for example, if they are old or their legs malfunction. This criterion is therefore not applicable to them but rather the criterion of high probability of death. On the other hand, someone who suffers from a mortal illness such as dropsy (istisqa¯)60 or the plague is able to attend to his business out-of-doors (he is probably referring to the initial stages of these two diseases), although he is closer to death than a person who is confined to his house due to headache (s.uda¯) or to his thinness (huza¯l ). According to Ibn Abidin, it is possible to reconcile this contradiction by prescribing that if a person knows that he is mortally sick and that his situation is deteriorating, the criterion of high probability of death is applicable to him, even though he continues to be active in the public sphere. If, however, he is not aware of his dangerous health situation, the criterion of inability to attend to his business out-of-doors has to be applied. It seems that Ibn Abidin’s solution still leaves doubts: regarding the first part of his compromise, it is impossible to know if the deceased knew about the severity of his malady and that he was dying, unless he shared his knowledge and feelings with someone before he died.

138

Chapter Five

As for the second part, if a person is unaware of the seriousness of his condition, he probably does not fear death. What, then, is the point in defining him as mortally sick only on the grounds of his inability to leave his house? Ibn Abidin seems to have thought that even if a sick person was not aware of the high probability of his approaching death, the fact that he was confined to his house due to his malady must have created the fear of death in him. Many Hanafis combine all the objective criteria—a frightening disease that creates a high probability of death and inability to attend to business out-ofdoors—in their definitions of mortal illness.61 For example, article 1595 of the Ottoman Majalla stipulates: Mortal illness is a sickness likely to create fear of death. It prevents the male from attending to his business out-of-doors and the female from attending to her domestic chores. The sick person dies from it within a year, whether he is confined to bed or not. If the disease continues for more than a year on a steady level, the sick is considered a healthy person and his transactions are considered ones of a healthy person, on the condition that his sickness does not worsen and that his condition is stable. If however his disease worsens and his situation changes and he dies before the passage of one year, his situation from the date of change to the date of his death is considered as mortal illness.62 Current Egyptian civil and inheritance codes apply the doctrine of mortal sickness.63 Since these codes do not define the term itself, Egyptian courts have to follow the Hanafi definition. The modern Egyptian jurist Muhammad Abu Zahra admits that although all the premodern jurists are in accord concerning the essential meaning (mana¯ as.lı¯ ) of mortal illness, they dispute its signs: a few say that it confines the sick person to bed; others hold that he is not able to stand during prayer; or that he is unable to walk without the assistance of others; or that he is confined to his house; or that a female is unable to attend to her domestic chores. It is therefore the task of the judge, argues Abu Zahra, to determine the compatibility of each case to the Hanafi criteria.64 He adds that judicial consultation with medical experts should be given the first priority in evaluating the severity of the malady and its duration. For example, if a physician informs a patient that he suffers from incurable cancer, one is permitted to conclude that the patient’s transactions subsequent to getting this information will be influenced by the fear and despair resulting from his awareness of his approaching death.65 The opinion of the Egyptian national authority for the issuance of legal

Revealing the Secrets of the Body

139

opinions, Dar al-Ifta,66 as well as the decisions of the Egyptian Court of Cassation, apply Ibn Abidin’s definition of mortal sickness. In a 1976 decision, the Court of Cassation writes that the term mortal sickness means a serious (shadı¯d ) illness that creates high probability of death, according to custom or according to the assessment of physicians, which continues until death. If people are unaware that a certain disease is mortal, the criterion is that it prevents the sick person from attending to his business out-of-doors. In such a case, the definition includes inability to attend to his business, high probability of death, and the fact that the disease caused death. In a 1978 decision, the same court establishes that a malady which lasts more than a year is not a mortal sickness. If it worsens, the disease is defined as mortal from the beginning of the deterioration, because the deterioration ends the sick person’s hopes of recovery and makes him feel that death is close. Generally, the court says that the assessment of the severity of the malady is exclusively in the hands of the qadi.67 Before turning to the analysis of a few court cases, a note on probative rules is due. In lawsuits involving mortal sickness, the plaintiff is always the one who argues that the legal act (a divorce, a sale, a gift, or a waqf ) was conducted by the deceased while he was on his deathbed. The general fiqh rule is that the plaintiff carries the burden of proof, because his claim runs counter to the legal presumption (khila¯f al-z.a¯hir; khila¯f al-as.l), which is informed by the facts of nature as well as by cultural and social norms. For example, if a husband demands the return of his rebellious wife to his obedience, he carries the burden of proof (that is, to establish her rebelliousness), because the legal presumption is that wives usually obey their husband. According to the same logic, in lawsuits associated with mortal sickness the burden of proof should fall on the plaintiff because his claim that the deceased was mortally sick at the time he conducted his transaction contradicts the “natural way of things”—in other words, that good health is the standard and that sickness is an exception. Thus, the plaintiff ’s claim contradicts the legal presumption.68 The Hanafi position, however, is that the burden of proof falls on the defendant, because the legal presumption, based on the closeness in time between the date of the transaction and the date of death, is that the deceased conducted the transaction when on his deathbed.69 I found three cases70 in which the qadis of the Egyptian sharia courts applied the Hanafi position. In another two cases, however, it seems that the court required the plaintiff to bring evidence to the effect that the deceased had been mortally sick while conducting his transaction.71 The practice of the civil courts has been different. When a lawsuit involv-

140 Chapter Five

ing mortal sickness is filed in a civil court, the court launches a preparatory stage of investigation (tah.qı¯q) in which both the plaintiff and the defendant are required to submit their evidence. Consequently, the court, often assisted by medical experts, weighs the probative force of the various, even contradictory, pieces of evidence, including medical reports, and eventually decides in favor of one of the parties. 2.2. Mortal Illness at the Sharia Courts72 Case: Was the late Mahmud mortally ill when he divorced Bamba? 73 Mahmud Husni Mahmud, resident of the Cairo quarter of Bulaq, had two wives, Sakina Ibrahim Abid and Bamba Mahmud al-Kurdi. On 10 May 1932, Mahmud was treated in the department of chest diseases. Two weeks later, on 24 May, he went to a state notary and divorced his wife Bamba by a final third divorce. On 14 June, a physician examined Mahmud and wrote a report, according to which Mahmud was suffering from general weakness and severe diarrhea. During the same month, and also in September and October of the same year, Mahmud appeared in Cairo courts of law to defend himself in suits filed against him. He died on 4 November 1932. Following his demise, Bamba filed a suit against Sakina at the Cairo Sharia Court of First Instance, arguing that she was entitled to one out of sixteen shares of Mahmud’s legacy, on the grounds that he had divorced her while he had been mortally sick and that she was still observing her waiting period when he died. According to her claim, the other heirs were her children by the deceased as well as Sakina, his second widow, and her children by the deceased. Sakina, however, denied that Bamba’s divorce had taken place when Mahmud had been mortally sick, and argued that Bamba was therefore not entitled to any share of Mahmud’s legacy. On 20 November 1933, the court ruled in favor of Bamba: Mahmud had divorced her during his mortal sickness, and she was therefore entitled to inherit from him as his widow. The court based its rule on medical reports and the testimonies of witnesses, the content of which was not specified in the judgment document. Sakina appealed the verdict to the Supreme Sharia Court. She argued that the fact that Mahmud had appeared in court during the period following the divorce proved that he had been a healthy person when he divorced Bamba. Asked by the court to react to Sakina’s argument, Bamba confirmed his appearances in court but argued that he had been carried to the courts, being sick in his head and back and suffering from severe diarrhea. She implied that his appearances in court did not negate the fact that he was mortally sick at the time.

Revealing the Secrets of the Body

141

On 26 February 1934, the Supreme Sharia Court reversed the decision of the lower court, accepting Sakina’s arguments. The court reasoned that the fact that Mahmud had appeared in court during the period following the divorce established that his sickness had not prevented him from taking care of his business out-of-doors (lam yaqud an qad.a¯ mas.a¯lih.ihi). He therefore did not meet the criteria of mortal sickness. 2.3. Mortal Illness in the Civil Courts74 Case: Was the late Sayyid mortally sick when he “sold” his property to his son Muhammad Yahya and divorced his wife Zahra? 75 1 April 1924—Onset of Sayyid’s mortal illness, according to the civil lower court (based on opinion of forensic medical expert, who relied on testimonies of witnesses at the sharia court). 21 April 1924—Sayyid “sold” his property to his minor son. Early May 1924—Sayyid summoned his personal physician to treat him; beginning of mortal sickness, according to the civil court of appeals. 31 May 1924—Sayyid divorced Zahra. October 1924—Sayyid died. Al-Sayyid Basha Ali, a resident of Cairo, had two wives: Asma Hanum Kassab and Zahra Hanum Rif at. Asma had at least one son by him, named Muhammad Yahya, while Zahra probably bore him no children. On 21 April 1924, Sayyid signed a “sale” contract of his property to his minor son Muhammad Yahya. About one month later, on 31 May, he divorced his wife Zahra. He died in October of the same year. Following his death, Zahra filed a lawsuit at the sharia court, arguing that, since her divorce has taken place when Sayyid had been suffering from mortal sickness and since she had been observing her waiting period when he died, she was entitled to be his heir. Zahra brought four witnesses to support her claim: the first testified that Sayyid had been sick and severely exhausted from the beginning of April 1924 until his death, and that he had suffered from bronchitis and, alternately, diarrhea and constipation. The second witness provided similar details but from hearsay. The third witness testified that during a visit to Helwan between May and June 1924, he had met Sayyid and had witnessed his fatigue. The fourth testified that he had not met Sayyid during the last year of his life and therefore he knew nothing about the disease he had been suffering from. After the plaintiff Zahra swore an oath in support of her

142

Chapter Five

version,76 the qadi ruled that she was entitled to inherit from Sayyid, because he had divorced her when he was already mortally sick. After she won her case in the sharia court, Zahra filed a lawsuit in the civil court, demanding cancellation of the sale contract that Sayyid had transacted in favor of his minor son. The civil court asked a forensic medical expert (t.abı¯b sharı¯ ) to review the reports of the physicians who had attended to Sayyid. In his report, the expert began by defining mortal disease as one that causes death directly or a disease that is inseparably linked to the first one; a continuously worsening disease without considerable periods of improvement (in case of improvement, the last deterioration marks the beginning of mortal sickness); a mortal disease that has developed from a nonmortal one. As for the case under consideration, the expert concluded that Sayyid’s mortal sickness had been bronchitis, and that toward the end of his life he had suffered also from diarrhea caused by his old age (al-isha¯l al-shaykhu¯khı¯ ). Both maladies had caused his death, due to his general weakness as an old person. On the basis of the testimonies of Zahra’s (lay) witnesses at the sharia court, the expert dated the beginning of mortal sickness to 1 April 1924. And on that basis, the civil court ruled in favor of Zahra and voided the sale contract. Asma appealed the verdict to a civil appellate court. The court of appeals expressed its dissatisfaction with the fact that the lower court determined the date on which Sayyid’s mortal disease had started based on insufficient testimonies provided by the four witnesses who had testified in the sharia court. Weighing these testimonies anew, the court of appeals determined that the last two witnesses’ testimonies were substantially irrelevant; that the second witness provided hearsay evidence, and so his testimony had to be discarded; and that the first witness had to be disqualified, on the grounds that he was Zahra’s brother and was therefore interested in her winning her case. Also, the first witness did not explain how he had learned that Sayyid got sick two weeks before the sale transaction, given that he had not visited Sayyid during that period. What made the court even more suspicious of the first witness’s testimony was that in early April 1924 Sayyid stayed in Helwan, near his personal physician, yet he summoned the latter to treat him only at the beginning of May. On 7 May 1933, the court of appeals finally concluded that the date on which Sayyid’s mortal sickness had begun was early May 1924—after the day in which he concluded the sale deed. The court therefore reversed the decision of the lower civil court and rejected Zahra’s claim.

Revealing the Secrets of the Body

143

Case: Was Ahmad mortally sick when he sold his property to his only daughter? 77 3 February 1928—Ahmad took sick leave from his place of work. He underwent surgery. 22 May 1928—Ahmad returned to work. 11 August 1928—Ahmad’s disease worsened. He quit work again, never to return. 16 August 1928—Ahmad “sold” part of his property to his minor daughter. 28 August 1928—Ahmad confirmed the first “sale” contract. 11 September 1928—Ahmad “sold” the other part of his property to his same minor daughter. 13 September 1928—Ahmad confirmed the second “sale” contract. 18 October 1928—Ahmad nominated his brother as the property guardian of his minor daughter. 22 October 1928—Ahmad died. Late March 1929 and April 1930—medical report by a physician affirmed that Ahmad had had incurable liver cancer. Ahmad Efendi Najib Salam took sick leave from his place of work, from early February to late May 1928. According to the official medical report, he was operated on to remove a gallstone (h.as.wa s.afra¯wiyya). Another report stated that a tumor (sharku¯m) was found in his liver. On 11 August 1928, his disease reappeared, more seriously than before. The medical report from that day stated that, on the grounds of his yellow skin, his extended and swollen liver, and his general fatigue, it was suspected that he had liver cancer. This suspicion was confirmed shortly afterward. He never returned to work. On 28 August and 13 September, Ahmad “sold” all his property to his minor daughter. On 18 October, he officially nominated his brother, Ahmad Mamun Salam, as the property guardian (was.¯ı mukhta¯r) of his daughter. Less than a month later, on 22 October 1928, he died. Following his death, a few of Ahmad’s legal heirs filed a lawsuit at a civil court of first instance against Ahmad’s brother, the guardian of Ahmad’s minor daughter, and against the daughter herself. The plaintiffs demanded cancellation of the “sale” contracts, on the grounds that Ahmad had been suffering from mortal sickness at the time he had contracted them. The court rejected the plaintiffs’ suit on grounds that are not specified in the judgment. The heirs then appealed the verdict to the court of appeals. The latter reversed the de-

144

Chapter Five

cision of the lower court and concluded that Ahmad had undoubtedly been mortally sick when he contracted the sales, on the following grounds: all the medical reports were unanimous that Ahmad was afflicted with liver cancer, that he could not be saved, and that his health had deteriorated steadily from August 1928 until he died; the closeness in time between the date on which his disease worsened and the dates of the contracts; and the fact that his giving up all his property, although he was in the prime of his life and had a successful career, constituted circumstantial evidence to the effect that he was aware that his death was close and that he wished to leave all his property to his only daughter, at the expense of his other legal heirs. This conclusion was strengthened by the fact that he had nominated his brother to be the property guardian of his daughter shortly before he died. On 6 May 1931, the appellate court finally voided the two “sale” contracts, which were actually hidden gifts, thereby returning Ahmad’s legacy to distribution among his legal heirs. Case: Was Muhammad mortally sick when he “sold” his property to his wife? The court of cassation sets high probative standards78 14 December 1944—Muhammad was examined by Dr. Abd al-Aziz. Diagnosis: chronic kidney infection that developed into uremia, resulting in temporary losses of consciousness. 12 April 1945—Muhammad “sold” his property to his wife.79 Early January 1946—Muhammad contracted pneumonia; was treated by Dr. Armanius; was bedridden from that time until his death. 17 January 1945—Muhammad died. Dr. Armanius signed the death certificate. Cause of death: pneumonia. 25 October 1948—Dr. Abd al-Aziz provided oral expert testimony in court. Cause of death: urinary intoxication of the nerve centers. In mid-December 1944, Muhammad Hasan Shadi visited a physician, Dr. Hilmi Abd al-Aziz. The doctor found that Muhammad was suffering from a chronic kidney infection that caused the development of uremia (bulı¯na¯),80 resulting in his loss of consciousness from time to time. The doctor wrote a statement of his findings. On 12 April 1945, Muhammad “sold” his house to his wife. Her name is not mentioned in the judgment, only the fact that she had not borne him any children. In early January 1946, Muhammad contracted pneumonia and was treated by Dr. Baqtar Armanius. About two weeks later, on 17 January 1946, he died. In the formal death certificate, Dr. Armanius indicated that the cause of death was pneumonia.

Revealing the Secrets of the Body

145

Following Muhammad’s demise, a number of his heirs (the court judgment does not specify their names or their exact relationship to Muhammad) filed a lawsuit against the widow in the Cairo Court of First Instance, demanding cancellation of the “sale” contract, on the grounds that Muhammad was mortally sick when he contracted the sale and that the sale was a deceit by which he wished to escape his debts to the plaintiffs. Later, they withdrew their charge of deceit but insisted on their argument concerning the mortal sickness. The court ordered an investigation and instructed the two parties to support their arguments with evidence. In the framework of this investigation, Dr. Abd al-Aziz, on 25 October 1948, gave oral testimony in court in which he supported his written report of April 1945.81 He concluded that Muhammad had died in the course of his disease as a result of fainting caused by urinary intoxication of the nerve centers (ghaybu¯bat tasammum Bawlı¯ ala¯ al-mara¯kiz al-as.abiyya). On 14 March 1950, the court ruled in favor of the defendant, rejecting the claim that Muhammad was suffering from a mortal sickness at the time of the sale, on the grounds that all the witnesses except Dr. Abd al-Aziz had failed to define the exact type of disease from which Muhammad suffered. As for Dr. Abd al-Aziz, his oral statement that he treated Muhammad nine months before his death contradicted the fact that his report from the beginning of the treatment had been written more than thirteen months before Muhammad’s death. Moreover, Dr. Abd al-Aziz’s identification of the cause of death contradicted the one that appeared in the death certificate written by Dr. Armanius, who treated Muhammad closer to the time of his death. The court therefore found that no trustworthy evidence had been presented to support the existence of mortal sickness at the time the sale was contracted. A second ground for turning down the lawsuit was that most of the witnesses testified that Muhammad, although old, had appeared in court in person to affirm his signature on the contract and that he had remained in bed for only a short period before his death (from one week, according to one witness, to two months, according to others). The court therefore concluded that Muhammad had been able to attend to his business out-of-doors at the time he contracted the sale and therefore could not be defined as mortally sick. Muhammad’s heirs (the plaintiffs in the original lawsuit) appealed the verdict to the Cairo Court of Appeals. Before turning to the specific case, the court of appeals recited the definitions of mortal sickness, according to fiqh and judicial practice, as a disease that creates a high probability of death; that makes the sick person feel he is close to death; that prevents the male from

146

Chapter Five

attending to his business out-of-doors; that lasts less than a year; and, finally, that ends the sick person’s life. After reviewing the evidence of the case, the court of appeals reversed the decision of the lower court, on the grounds that the reasons provided by that court for rejecting Dr. Abd al-Aziz’s testimony did not weaken the probative force (dala¯la) of that testimony, because the latter had provided decisive evidence to the effect that Muhammad had suffered from uremia. The widow’s witnesses strengthened this medical evidence by testifying that Muhammad had been sick during a period ranging from six months to one year and by describing symptoms of that disease that were identical to the symptoms of uremia. It was agreed, said the court, that uremia was a disease that created a high probability of death. It would have ended Muhammad’s life even if he had not contracted pneumonia at a later stage. It was probable that the pneumonia had accelerated his death, due to his advanced age and the weakness of his body. Since both maladies could have caused Muhammad’s death, there was no contradiction between Dr. Abd al-Aziz’s testimony and the death certificate. The court concluded that the medical criteria for mortal sickness, according to fiqh and judicial practice, were sufficiently established in the case. The court of appeals added that the fact that Muhammad had appeared at court in person to affirm the sale contract did not preclude his being mortally sick at that time, because he might have done harm to himself (tah.a¯mala ala¯ nafsihı¯ ) by getting out of bed during a severe illness. Also, it was plausible that, anticipating future lawsuits against the validity of the “sale” contract, his friends or relatives had carried Muhammad to court to affirm his signature on the contract, thereby assisting him in presenting himself as a healthy person capable of attending to his business out-of-doors. On the basis of all that, the court of appeals determined that there was indisputable evidence (dala¯la la yatarı¯ha¯ al-shakk) that the contract had been concluded when Muhammad was mortally sick, that his death had resulted from his original malady in addition to other diseases, and that the “sale” contract had been a hidden gift (ala¯ niyyat al-tabarru) to his wife, prohibited by statutory law. The widow appealed the verdict to the highest judicial level, the Court of Cassation, arguing that the court of appeals had failed to apply its own definitions of mortal sickness to the case under consideration. She referred the Court of Cassation to the contradictions that the lowest court had found between the testimonies of Dr. Abd al-Aziz and Dr. Armanius. She added that Dr. Abd al-Aziz, thirteen months before Muhammad’s death, had written that his uremia had been chronic. That the disease lasted longer than

Revealing the Secrets of the Body

147

a year prior to Muhammad’s death precluded its identification as a mortal sickness. The appellant argued further that at the time Dr. Abd al-Aziz testified in court that Muhammad’s death had resulted from the above-mentioned fainting, he had no knowledge of the pneumonia from which Muhammad had been suffering during the last weeks of his life, because the last time he saw Muhammad was more than a year prior to his death. Dr. Abd al-Aziz therefore had no chance of knowing about all the developments and complications of Muhammad’s sickness during the last year of his life. In fact, the appellant argued, the court of appeals had failed to find that Muhammad’s mortal sickness was the pneumonia, and that it had started only two weeks prior to his death. She further argued that if one of the criteria of mortal sickness was not satisfied, the court had to negate the presence of mortal sickness. The Court of Cassation ruled in favor of the appellant and reversed the decision of the court of appeals, on the grounds that the latter was correct in concluding that the pneumonia had expedited Muhammad’s death, but it had failed to establish whether the pneumonia had been a complication of Muhammad’s original malady or an independent malady that had had no effect on the original disease. Also, the court of appeals had failed to follow the development of the uremia and to establish if and when this malady had become exacerbated. According to the practice of the Court of Cassation, a disease that lasted more than a year, as in the case under discussion, was not considered a mortal sickness, even if it was a severe sickness. It became a mortal sickness only when it started to become exacerbated. Since the court of appeals had neglected to verify that the criteria for mortal sickness were satisfied, its decision had to be rejected. Case: Was Muhammad mortally sick when he dedicated a waqf in favor of his son? The court struggles with confusing expert testimonies82 7 or 8 June 1925—According to Dr. Awd’s diagnosis, Muhammad was suffering from suppression of urine; Dr. Awd installed a catheter and prescribed medicines for encouraging urination. 8 June 1925—At the request of Dr. Awd, Dr. Georgiadis conducted a urinalysis of Muhammad at his laboratory. 9 or 10 June 1925—Dr. Sami visited Muhammad and saw the results of the urinalysis. 25 June 1925—Muhammad collected his monthly retirement payment by way of a delegate rather then personally, as had been his custom for years.

148 Chapter Five

26 June 1925—Muhammad dedicated a waqf in favor of his son (at the expense of his other heirs). The court secretary documented the endowment at Muhammad’s house, because the latter was unable to attend the court in person. 9 July 1925—Muhammad died at the approximate age of eighty-five. The death certificate noted that he had been sick during the five days preceding his death. On 26 June 1925, Muhammad Pasha Ramadan, an old (approximately eightyfive years of age), sick, and bedridden man, dedicated a waqf in the presence of the court clerk, whom he had summoned to his house. The waqf property consisted of two houses, one small and the other larger. In his waqf, Muhammad named himself as the sole beneficiary until his death. For the period subsequent to his death, he stipulated that the usufruct from the small house would benefit a public purpose, while his son, Muhammad Sadiq Ramadan Bey, would exclusively benefit from the usufruct of the large house, to be followed by his (Muhammad Sadiq’s) descendants. On 9 July—eleven days after the foundation of the waqf—Muhammad died. The death certificate indicated that he had been sick during the last five days of his life. His heirs, besides the above-mentioned Muhammad Sadiq, were his younger son, Hasan Effendi Ramadan, and his three daughters. Later, Hasan Effendi also died, leaving behind his wife, al-Sitt Fatima Muhammad Hasanayn, and a minor son (the paternal grandson of the waqf’s founder). On 8 May 1932, Fatima, as the property guardian of her minor son, filed a lawsuit in the civil court of first instance, claiming that her late father-in-law had founded the waqf, which was harmful to the interests of his legal heirs (one of whom was her late husband), when he was mortally sick, and that the waqf was therefore not operative without the consent of the remaining heirs. She therefore demanded that her minor son be allotted his portion of the legacy, as a legal heir of the founder (through his deceased son). On 11 June 1932, the court ordered an investigation to enable the parties to submit their respective evidence concerning the mortal sickness. Upon the completion of the investigation, the court, on 29 May 1933, rejected Fatima’s claim on technical grounds. She appealed the decision to the civil court of appeals. Seeking to establish whether Muhammad had been mortally sick on the day he founded his waqf, the main problem facing the court of appeals was to establish the legal facts on the basis of the incomplete and even misleading reports by the two physicians who had treated Muhammad. As a matter of

Revealing the Secrets of the Body

149

fact, the judges stated explicitly that they deeply regretted that these two physicians had not made the court’s difficult task in this case any easier. The first physician, Dr. Abd al-Rahman Awd, a specialist in diseases of the urinary tract, testified that he had been summoned by Muhammad’s son to investigate Muhammad’s suppression of urine. He was unable to state the exact date of the examination. He inserted a catheter in Muhammad’s bladder and found a small amount of urine. The patient did not talk during the treatment and did not respond to his questions. The doctor prescribed medications for increasing the urinary secretion and ordered a urinalysis, which was subsequently conducted at Dr. Georgiadis’s laboratory. The results were sent to the patient’s son. Dr. Awd further testified that at the time he examined the patient, it was impossible to know if Muhammad’s suppression of urine had caused the development of uremia. Such knowledge required visiting the patient a second time as well as studying the laboratory report to know the strength of the kidneys’ secretion of toxic substances. Dr. Awd argued that since Muhammad was being treated at the time by Dr. Sami, he himself had neither paid a second visit to the patient nor seen the results of the urinalysis. He also noted that the condition of the patient pointed to the presence of chronic diseases, and that old age had caused the organs to malfunction. He concluded that the malfunctioning of the kidneys had led to uremia, which was the cause of death. The duration of the uremia might have been from one to sixteen days prior to death. The second physician, Dr. Muhammad Kamil Sami, testified that he had been summoned to treat Muhammad about one week subsequent to the dedication of the waqf—that is, around 3 July. Contrary to Dr. Awd’s testimony, he said he had not been treating the patient on a regular basis at that time. During that visit he had found the patient to be suffering from fever and urine suppression. The patient’s son related to him the details of Dr. Awd’s visit, which had taken place two days earlier, around 1 July. As one of the witnesses to the dedication of the waqf, Dr. Sami concluded that the violent symptoms of uremia were absent at the time Muhammad had dedicated his waqf and that the uremia had started about three or four days before his visit (in other words, around the end of June). The uremia was caused by old age and arteriosclerosis. He did not recall whether the person who had ordered the urinalysis was Dr. Awd, the patient’s son, or himself. He remembered receiving the results of the urinalysis but did not tell the court what these results were. These two expert testimonies left the court facing a number of knowledge gaps, inconsistencies, and contradictions, not to mention suspicion of attempts by each of the two physicians to conceal evidence and put the burden

150

Chapter Five

of responsibility on the other’s shoulders. The court was not hesitant in expressing its criticism. With regard to Dr. Awd, the court said that he had not revealed all the details he must have known, such as the level of the patient’s fever, the date of his visit, the date on which the disease started, the condition of the prostate, and the results of the urinalysis. As for Dr. Sami, it was strange that he had forgotten who ordered the urinalysis and also that he did not disclose the results of this test. On the basis of these testimonies, the court was led toward establishing that the two physicians had visited Muhammad in early July—namely, later than the day of the waqf ’s dedication, which played into the hands of the defendant, Muhammad’s son. But there was another piece of evidence that changed the picture. Dr. Georgiadis, who testified to having conducted the urinalysis at the request of Dr. Awd, had noted in his laboratory journal that the test was conducted on 8 June. The court used this indisputable dating to reconstruct the chronology of the entire case. Dr. Awd’s visit must have taken place the same day the laboratory test was conducted or the day before that—in other words, 7 or 8 June. Dr. Sami’s visit was, according to his own testimony, two days later, namely on 9 or 10 June (and not a week after the dedication of the waqf, as he indicated in his testimony).83 The court of appeals concluded that the suppression of urine, which had already existed on 8 June, was a symptom of the patient’s mortal sickness— namely, kidney disease and/or enlargement of the prostate. Considering Muhammad’s advanced age, his arteriosclerosis, and his other chronic maladies, the court declared that he had been mortally sick on 8 June—that is, prior to his dedication of the waqf. The inevitable result of the suppression of urine was the uremia, which started seven or nine days prior to death. The court also declared that on 25 June he had sent his delegate to collect his monthly retirement stipend, contrary to his usual practice of collecting it in person at the end of each month, and that on 26 June he was bedridden and could not go to the court to dedicate his waqf. These two facts testified to the state of urgency the deceased must have felt and lent additional support to the final conclusion: that he had dedicated his waqf while on his deathbed. On 17 June 1934, the plaintiff-appellant, Muhammad’s daughter-in-law, representing his orphaned grandson, won her appeal. 2.4. A Comparative Analysis of Section 2 and Conclusions It seems that the Egyptian courts, both sharia and civil, have followed Ibn Abidin’s definition of mortal sickness, which includes two criteria: (1) the

Revealing the Secrets of the Body

151

severity of the illness and (2) its preventing the sick person from following his daily routine. (The second criterion is applied only if the strong likelihood of death created by a certain disease is as yet unknown.)84 The sharia courts did not pay a lot of attention to the first criterion and clearly preferred to base their decisions on the second one. They considered the fact that the sick person continued to attend to his business out-of-doors at the time he divorced his wife, and subsequently, as sufficient evidence that he was not mortally sick. In all six sharia court cases available to me, the qadis rejected the divorcee’s claim on these grounds. The qadis disregarded the suspicious closeness in time between the date of divorce and the date of the husband’s death, as well as the apparent motivation on the part of the husbands to deprive their wives of their inheritance rights in favor of other heirs. The qadis scarcely questioned the motives behind the sick husband’s continuing to attend to his business out-of-doors: Was his exiting of his house really meant for attending to genuine business, or was it solely aimed at refuting future claims by the divorcee or her heirs with regard to inheritance rights? Why did the qadis of the sharia courts give such scant attention to the medical aspect? One plausible explanation is that it was easier for them to go that way: the mobility of the divorcing husband during his sickness could be easily verified on the basis of simple eye-witnessing. By contrast, clarifying the medical aspects required the involvement of physicians as expert witnesses. Did the qadis feel insecure in confronting the modern physicians and their scientific knowledge? Were they suspicious of the new generation of physicians? Do the qadis’ conservatism and their attachment to their traditional judicial practices explain their reluctance to delve into the medical aspects of the case? Was it merely laziness on their part, since the involvement of physicians made the judicial process much more complicated and time consuming? These propositions are not necessarily mutually exclusive; all of them might have played a part to one extent or another. Following the precedent set by the Court of Cassation,85 the civil judges have refrained from interpreting medical data themselves and have taken care to rely on experts for that purpose. Unlike the sharia courts, the civil courts have applied Ibn Abidin’s definition of mortal sickness fully. They have put their main emphasis on verifying the severity of the disease and were extremely suspicious with regard to the probative force that the sick person’s mobility or immobility had. The precedents of the Court of Cassation over the years have repeatedly made clear that the main criteria of mortal sickness were the severity of the malady and the sick person’s feeling that his death was near. The criterion of immobility is mentioned in only one precedent, accompanied by

152 Chapter Five

the court’s reservation that this criterion is worthy of consideration only “if people are unaware that a certain disease is mortal.”86 The civil courts have held that the engagement of a sick person in outdoor activities subsequent to his contracting the disputed transaction did not preclude his categorization as mortally sick. The courts were aware that mortally sick people often went out-of-doors once or twice, even at the cost of prejudicing their medical condition, in order to create a false display of themselves as healthy—or at least as not mortally sick. This display was intended to refute any legal claims by the sick person’s heirs concerning the legality of his transactions. At the same time, the civil courts have not considered the fact that a sick person was confined to his home, or even was bedridden, as a necessary indication of mortal sickness, unless this confinement took place during the last stages of his disease. The judges have explained that there have been bedridden persons whose life was not at risk, while others were able to maintain their mobility even though their death was only days away. As hinted earlier, one possible explanation for the differing approaches of the sharia and the civil courts is that the sharia courts were slower to adjust to the development of modern forensic medicine than were the civil courts. As opposed to the sharia courts, the civil courts, founded in the 1880s, have grown into a modern legal culture, in which reliance on scientific knowledge is central. The civil courts have been more proficient than the sharia courts in using medical opinions and reports, have resorted to them more often, and have viewed them as the most reliable means to establish a situation of mortal sickness. This difference of attitudes is demonstrated by the characteristics of the legal documents issued by each type of court. In sharia court judgments involving mortal sickness, the qadis usually did not detail any medical information related to their decision—or if they did, it was done concisely.87 By contrast, the civil courts, in the course of their judgments, aided by forensic medical experts, described in a highly detailed manner all the medical data presented to them, analyzed these data, weighed the probative force of medical evidence, established priorities between contradictory pieces of information, and reconciled contradictions in cases where this was feasible. Civil-court judgments in cases involving mortal sickness were usually much longer than those of the sharia courts, giving the reader the impression that he is going through a medical bulletin. Generally speaking, the extensive use of modern medicine by the civil courts has put the adjudication of mortal sickness cases on a totally new footing. During the twentieth century, people visited professional physicians more

Revealing the Secrets of the Body

153

often than before. Medicine, on top of becoming more scientific and therefore more accurate, has also become more bureaucratic. One important implication of this bureaucratization is that physicians and hospitals have generated more documentation—such as laboratory reports, summaries of treatments, reports on surgeries, and prescriptions. These documents have become very useful for the courts and for the forensic experts who have assisted the courts in interpreting their significance. On the one hand, the rich medical data gathered and interpreted in such ways have made the work of the courts much more complicated than before. For example, the judges have had to evaluate the significance of various, sometimes even contradictory, pieces of medical data. The courts have also had to be aware that litigants, to serve their legal claims, might have “ordered” retroactive medical reports from physicians. The richness of the data, as well as the involvement of experts in the process, has surely prolonged the judicial process. On the other hand, the courts have been able to reach better informed and less arbitrary decisions concerning mortal sickness, thereby better serving the cause of justice.

chapter six

From Physiognomy to DNA Testing: Developments in the Establishment of Paternity 1. introduction This chapter focuses on the current controversy in Egypt regarding the introduction of DNA testing in paternity suits. In what follows, I view this controversy as part of a larger process, one in which sociocultural values—patterns of familial organization and gender relations anchored in authoritative religious-legal texts—are debated and renegotiated, as well as part of a struggle between traditional and modern elites for political power. The following case illustrates the confrontation between marital and biological presumptions of paternity, the core of this chapter. An Egyptian had been married to a much younger woman (the court judgment does not mention their names) for more than seven years. The couple had no children. In June 1941, the husband learned that his wife was having an affair. She appeared to be pregnant, and he suspected that she was carrying her lover’s child. On 3 August, the husband asked the public prosecutor (al-Niya¯ba) to investigate his suspicions, and three days later he divorced his wife. A few days after that, he asked a physician to test his sperm. The results showed that he was sterile. On 15 September, the woman gave birth, and four days later she married her lover, who was probably the father of her child. She registered the child as her ex-husband’s son, however, and later filed a lawsuit against him in the sharia court, demanding maintenance for the child and caregiver wages for herself. The ex-husband presumably knew that the sharia court would consider him the child’s father, since the child was born within one year of the date of divorce, the maximum duration of pregnancy according to Egyptian statutory law (see below). He therefore submitted a lawsuit to the magistrate of

From Physiognomy to DNA Testing

155

summary justice (qa¯d.¯ı al-umu¯r al-mustajila) at the Alexandria Indigenous (ahlı¯ ) Court of First Instance. In his lawsuit, he demanded that a physician from the Forensic Medicine Authority (t.abı¯b sharı¯ ) conduct a blood test of the males involved in the case (the ex-husband, the new husband, and the baby), to determine the identity of the natural father (wa¯lid t.abı¯ ı¯ ). The plaintiff argued that he needed the results of the paternity test in order to submit a civil lawsuit against his ex-wife, demanding monetary compensation for the damages she had caused him.1 I shall return to the judgment of this case in section 7 below.

2 . t h e c r i t e r i a f o r pa t e r n i t y i n t h e fiqh and in other legal systems The criteria set up by the fiqh for establishing paternity (nasab) are lenient, for two reasons. The first is concern for the welfare (mas.lah.a) of the child and its rights (especially inheritance). This concern is mentioned in the Quran and hadith, as well as in the ethical and legal literature. The second concern is to minimize the number of situations in which Muslims (especially women) are accused of committing adultery (zina¯), which, as one of the h.udu¯d, is a severe religious offense. To safeguard these important matters, valid marriage is legally defined as the most important criterion for establishing paternity. According to the principle that “the child is affiliated to the [marriage] bed” (alwalad lil-fira¯sh), the husband’s paternity of a child born to his wife during their valid marriage is automatically established. Hanafi doctrine holds that paternity may be established even if there was no physical contact between the spouses during their marriage. Paternity may also be established in irregular ( fa¯sid ) marriages and even in cases in which the existence of marriage is questionable (al-wat. bi-shubha). On the one hand, the husband’s ability to deny his paternity of a child born to his wife is restricted to the procedure known as lia¯n.2 On the other, any child born out of wedlock, whether to an unmarried mother or to a married woman but not from her husband, is, according to the fiqh, an illegitimate child: he is “no one’s child” and has no rights. Another manifestation of leniency on the part of the fiqh is the legal duration of pregnancy. While the minimum length of pregnancy, six lunar months, is accepted by all schools of law, there is a controversy over the maximum duration. The Hanafis prescribe two lunar years, the Shafiis and Hanbalis four and the Malikis five.3 For the Hanafis, the paternity of any child born more than six months after its parents’ marriage or less than two years subsequent to their divorce is, in principle, automatically established. The paternity of

156

Chapter Six

a child born to a revocably divorced mother is established without any time limitation, unless she acknowledges that her waiting period expired before the child’s birth. Even when the paternity of a child cannot be established on the grounds that the pregnancy period was within the time limitations set by the fiqh, it may be established on the basis of the father’s acknowledgment.4 In adopting the marital presumption of paternity, which creates a concept of “legal paternity,” the fiqh resembles Roman law (“Mater simper certa est, pater quem nupitae demonstrant”)5 and British common law.6 Moreover, similar to the fiqh, and under the influence of Christianity, the concept of the illegitimacy of a child was adopted in British law and later in U.S. law. By contrast, Jewish law has a concept of “biological paternity,” according to which the child’s biological father is always his legal father. As a result, Jewish law has no problem with the paternity of a child born to an unmarried mother. As for a child born to a married woman from a man who is not her husband, he is defined as a bastard (mamzer), which is a narrower term than the Islamic illegitimate child.7 A brief review of the history of the marital presumption of paternity in British and U.S. law8 reveals a significant similarity to the fiqh discourse on the merits of this presumption. Existing in British common law since the early eighteenth century, the presumption is based on notions of “morality and decency.” Specifically, it was intended to preserve family integrity and inheritance rights, to safeguard against bastardization, and to help “local officials guard their purses.” According to another observation, the presumption served well the general public policy of the time: “society’s need for stability and certainty in family relationships at a time when property, and therefore often a family’s livelihood, was dependent on clear rules concerning patrilineal descent.”9 The mother or the presumed father10 could rebut the presumption only by proving that the husband did not have access to his wife during the crucial period of conception. The rules governing the admission of such evidence, however, were very strict. According to the widely accepted Lord Mansfield’s Rule of 1777, the spouses were prevented from testifying about the lack of access between them. This strict evidentiary rule was aimed, again, at protecting children from bastardization and preventing exposure of the parents’ immoral conduct. Lord Mansfield’s Rule was accepted in U.S. law in the early nineteenth century, but due to criticism, its application was restricted and even abolished by many states in the early twentieth century. Most American states maintained a presumption of paternity that could be rebutted by evidence regarding lack of contact between the spouses, adultery, impotence of the husband,

From Physiognomy to DNA Testing

157

and sterility of either spouse. Despite these common-law bases for rebuttal, the marital presumption prevailed in both British and U.S. law through the first half of the twentieth century.

3. physiognomy in islamic legal systems The pre-Islamic Arabs perfected the science of physiognomy (qiya¯fa), which enabled them to verify lines of parentage by finding similar signs (ima¯ra¯t; alama¯t) on the bodies of the child and his biological parents. The Hanbali Ibn Qayyim al-Jawziyya explains that these signs are invisible (z.uhu¯r khafiy) to the ordinary human eye and that only the physiognomy expert (henceforward qa¯if ), due to his unique sensory abilities, can detect them. Ibn Qayyim adds that the Prophet and his Companions, the Righteous Caliphs, considered physiognomy an indicator for establishing paternity ( jaalaha¯ dalı¯lan min adillat thubu¯t al-nasab) and made use of it.11 The most famous example of such use is found in a tradition by Aisha, the Prophet’s wife, according to which a qa¯if named Mujazziz al-Mudliji determined the paternity of Zayd b. Haritha (or Zayd b. Muhammad, after the Prophet adopted him), who was fair-skinned, over Usama, who was black (his mother was the Ethiopian Umm Ayman), by looking at the feet of both while the rest of their bodies was covered. The Prophet was very happy with this identification, which was interpreted as his implicit approval of physiognomy.12 All Sunni schools of law accept the validity of physiognomy, except for the Hanafis, who reject it altogether on the grounds that physical resemblance may be found between distant blood relatives while it may be absent between father and son (they opt for affiliating the child to a number of fathers). Ibn Qayyim, contesting the Hanafi position, wonders how anybody can reject physiognomy while at the same time accepting the establishment of paternity merely on the grounds of a marriage contract, even if “the husband is in the far east and the wife is in the far west” (which is the Hanafi position).13 The use of physiognomy, he argues, is legitimate on the grounds of analogy and the sources of the law (us.u¯l al-sharı¯ a), and the qa¯if should be respected like other experts, such as the assessor (al-muqawwim). Ibn Qayyim states clearly, however, that physiognomy should be used only in the absence of a stronger criterion for the establishment of paternity. In other words, it is agreed by all schools that the principle of “the child is affiliated to the [marriage] bed” supersedes the establishment of paternity by way of physiognomy.14 From this theoretical perspective, it is clear that physiognomy may have been brought into action only in those exceptional cases in which the prin-

158

Chapter Six

ciple of “the child is affiliated to the [marriage] bed” could not be applied and therefore did not immediately settle the issue. Examples of such cases, which are discussed in the juristic literature, are: two men sleep with the same woman, each believing that she is his wife or female slave;15 two men marry the same woman in an irregular marriage (or one valid and one doubtful) and sleep with her; two men share ownership of a female slave and both sleep with her.16 Consider also the following four scenarios: (1) If a divorcee acknowledges the termination of her waiting period after the passage of sixty days from the date of her divorce, then marries another man and gives birth after the passage of six and a half months from the date of her marriage to him, who is the father—the first husband or the second one?; (2) If one heir acknowledges his brother’s affiliation to their father while the other heirs deny it, paternity may be established only if affirmed by a qa¯if; (3) If two males claim the paternity of a child and both claims are equally probable, a qa¯if should decide who the father is;17 (4) If two females claim to be the mother of the same child, a qa¯if should decide who the mother is.18 From the Muslim responsa literature we learn that physiognomy was useful in establishing the paternity of children born to female slaves.19 Since legal restrictions on sexual relationships with female slaves were less strictly respected than those with free females, especially married ones, it seems that many paternity cases involved the children of female slaves. In the compilation of Ibn Hajr al-Haytami (d. 1567), we find a question about a person who stopped sleeping with his female slave for two months and then, believing that she had experienced at least one menstruation from the time he had deserted her, married her to his male slave. She gave birth six (lunar) months and ten days after the consummation of the marriage. Is the baby affiliated to her owner or to her husband, and is the marriage valid? The mufti answers that the marriage was void, because it was not established that the female slave had menstruated after ceasing to sleep with her owner. Her sexual relationship with her husband was, however, a quasi marriage (wat. bi-shubha), because he was led to believe that his marriage to her was valid. Since the baby might have been the child of either of the two men, he had to be inspected by a qa¯if: if the latter was able to determine the identity of the father, the child had to be affiliated to him. If, however, the qa¯if failed to make a determination, the matter had to be postponed until the child became legally responsible (mukallaf ). At this point the child was required to choose one of the two males as his father. If he hesitated, the establishment of his paternity had to be postponed until he made the choice.20

From Physiognomy to DNA Testing

159

Physiognomy was very popular in the Ottoman palace, not for establishing paternity but rather for predicting human qualities. The sultan consulted physiognomy experts regarding appointments in the army and administration, and on the purchase of slaves.21 In Morocco, there used to be court experts on physiognomy who helped the qadi to establish, on the basis of physical traits, the truth of claimed social origins as evidence of how one most likely negotiates ties and participates in relationships. Even now this mode of analysis may enter paternity suits and contribute to the rejection of modern medical testimony.22 A modern Saudi professor of law, Ibn Majuz, argues that since heredity is a scientific fact that does not need any further proof, physiognomy is a highly probable circumstantial evidence (qara¯in mughliba lil-z.ann).23 According to Ali al-Aqli, a Saudi attorney and legal consultant, the Saudi courts still use physiognomy in the absence of alternative evidence for the establishment of paternity.24 U.S. legal literature of the 1940s did not reject physiognomic resemblance as assisting evidence in paternity cases. In modern Israeli law, we find two judicial positions: one accepts facial resemblance as assisting evidence, in addition to the testimony of the mother; the second holds that since some physiognomic findings may have different interpretations, it is not for the judge but for the expert to present them to the court. Moreover, Judge Haim Cohn, in the case of Plonit v. Almoni (1960), argued that physiognomy is an art of the past, and that in the current age of scientific expertise a judge should consult experts on scientific questions, not take it on himself to decide based on his visual impression.25

4 . t h e i m pa c t o f m o d e r n s c i e n t i f i c d i s c o v e r i e s o n e s ta b l i s h m e n t o f pa t e r n i t y An explicit acknowledgment of paternity is still the best probative means for the establishment of paternity. In Western law, an implicit acknowledgment— for example, the defendant’s efforts to convince the mother to abort the child, or his being seen in intimate situations with the mother during the period in which she became pregnant—may serve as supporting evidence for establishing the paternity. In the absence of such an acknowledgment—as when the mother’s legal husband denies his paternity of her child, or when the mother is unmarried and the man pointed out by her as the biological father denies having had sexual relations with her or, alternatively, argues that he was not

160

Chapter Six

the only male who was sexually involved with her at the time she became pregnant—alternative evidentiary means for the establishment of paternity are required. One option is for an expert witness to testify in support of one of the litigants—for example, a physician providing evidence of the duration of the pregnancy and its history, or of the baby’s stage of development as an indicator of the estimated date of conception.26 However, such expert testimony may be helpful in only a limited number of cases. Starting in the twentieth century, new scientific discoveries have overshadowed all previous means for establishing biological paternity and have radically changed the character of paternity litigation. In the early twentieth century, Carl Landsteiner developed the ABO blood-group theory, which was adopted by the all-Scandinavian conference of genetics experts in Copenhagen in 1952. This development supplied legal systems with a reliable scientific means to deny paternity.27 The availability of blood-group tests did not escape the attention of Muslim physicians. For example, in 1937 Dr. Muhammad Amara, a physician and teacher in al-Azhar’s Faculty of the Sharia, published a guidebook for students preparing to serve as qadis in which he analyzed the most recent medical knowledge and scientific techniques relevant to the qadi for personal status cases. Referring to paternity, Dr. Amara mentions the poor reliability of physiognomy and observes that its results could not satisfy either the qadi or the physician. At that point the author explains in detail the development of Landsteiner’s blood-group theory and emphasizes its considerable probative value for the denial of paternity.28 In the 1970s, the development of the science of immunogenetics, which seeks to understand how heredity determines the immunological qualities of a human being, led to the discovery of the Major Histocompatibility Complex (MHC). The MHC is affected by heredity and forms the basis for a most effective and reliable tool for identifying one’s biological parents. The antigens of the MHC were first discovered in the blood’s white corpuscles, hence the name human leukocyte antigens (HLA) system, and the name of the test, HLA typing. Until the discovery of deoxyribonucleic acid (DNA), HLA typing was scientifically accepted as the most accurate means for not only denial, but also positive determination of paternity (probability of at least 90 percent).29 The scientist Prof. Terasaki said in 1978: A revolution in paternity testing is currently underway with the introduction of the HLA testing. The HLA system of tissue types is so powerful in determining the probability of paternity that many of the older

From Physiognomy to DNA Testing

161

rules of evidence for blood tests in disputed paternity cases now require complete revision.30 In 1985 the British scientist Prof. Jeffreys from the University of Leicester discovered unique sites on the human DNA which make it possible to precisely pinpoint any human being based on his or her genetic information, excluding identical twins. Following this conclusion, he coined the term DNA fingerprint. Since then the use of the term has become frequent in law courts. The use of DNA evidence for identifying criminals, based on findings from the scene of crime, and for establishing blood relations has become the judicial norm. Genetic profiling offers technological means for ascertaining the truth, means that earlier were not available to the judicial system. DNA testing, if performed accurately, permits a prediction, to a very high degree of probability, that a particular person is related to another, which for forensic purposes may be regarded as certainty.31 In the mid-1990s, the Israeli judge Hendel, from the District Court of Beersheba, said: DNA evidence is a different type of evidence. It seems to me that it is not exaggerated to say that the potential of DNA evidence is huge. It is very plausible that this evidence may change the field of scientific evidence for the next generations. This evidence may become tomorrow, or even today, an identification tool of a scope which only yesterday was seen as mere imagination. Especially because of that it is necessary to consider this evidence with caution.32 The conclusions derived from DNA testing are presented to law courts in probabilistic terms. These conclusions are therefore the result of a combined effort by genetics experts and statistics experts. Many technical problems are associated with the way in which bodily samples are gathered and with the laboratory processes involved in inspecting the samples, and these problems may distort the accuracy of the results and subsequently lead to injustice. This is what Judge Hendel was referring to when he mentioned the caution with which the court should treat this evidence. Also, the reliability of the conclusions drawn from the test increases with the number of DNA markers inspected.33 And because the DNA test is conducted on the basis of small segments of the DNA sequence, the reliability of its conclusions depends on the statistical expert’s using the appropriate statistical tables; these tables refer to common genetic profiles of particular population types in a particular locale.34

162

Chapter Six

5 . eu ro p e a n, u. s . , a n d i s r a e l i l e g i s l at i o n a n d c o u r t r u l i n g s o n pa t e r n i t y Technological advances enabling an almost certain identification of the biological father not only offer improved evidentiary means, they also contribute to an essential change in the social perceptions of paternity. In the United States, confirmation of biological paternity by genetic tests has been a significant challenge to the marital presumption of paternity, but certainly not the only challenge or the most important one. Another major challenge has been the dramatic growth in the number of children born out of wedlock in the 1970s and 1980s. Since the federal government was reluctant to support these children from its public funds, the states were required to identify the biological father of such a child and secure financial support from him. This policy was based on the assumption that biological paternity is a sufficient basis for creating a father’s legal and financial responsibility toward his offspring. The implementation of this policy has brought about, especially during the 1990s, a flood of claims for establishing biological paternity, submitted both by unmarried mothers and by husbands or ex-husbands who have been supporting children they suspected were not biologically theirs.35 Another blow to the survival of the marital presumption of paternity in the United States has been a dramatic rise in the rate of divorce, encouraged since the late 1960s by the considerable easing of divorce procedures. The hostility of one spouse toward the other in the process of divorce and subsequent to it has brought about a wave of claims by men contesting their biological paternity of their ex-wife’s children. In many cases, the husband during marriage accepted supporting his wife’s child, whom he was aware was not biologically his. But upon divorce, such a husband was often keen to release himself from these financial obligations.36 The above-mentioned modern situations are complex and confusing. So are the legal solutions that address them, which one observer defined as “doctrinal chaos.” In the United States, this confusion and the lack of social consensus as to what a family is, who is included in a family, and how the interests of various family members are to be ranked are reflected in the fact that the states apply different substantial, procedural, and evidentiary rules concerning paternity. The judicial results may vary considerably, according to the identity of the person who challenges the presumption of marriage (the presumed father, the wife, the child, the putative father,37 the state authorities), the timing of the claim, and the social philosophy of the judges.38

From Physiognomy to DNA Testing

163

Starting in the 1970s, most American states have allowed the husband, wife, and child to rebut the presumption of marriage, recognizing that once a family reaches the point at which one of its members challenges the presumption, its breakup has probably already occurred. Thus, the constitutional principle of protecting the integrity of such a family is irrelevant and cannot justify preventing family members from challenging the presumption.39 The majority (approximately two-thirds) of American states have adopted “inclusive statutes” that either explicitly or through judicial interpretation give putative fathers a right of action to rebut the marital presumption by “clear and convincing” evidence. The blanket inclusion has been deemed necessary to avoid gender discrimination and to protect the putative father’s alleged constitutional right to a relationship with his child; the marital family’s interests are deemed sufficiently protected by the use of a relatively demanding burden of proof. At the other end of the spectrum, some states adopted the “exclusive” 1973 Uniform Paternity Act, which prohibited putative parents from rebutting the presumption under any circumstances. The 2000 version of the act stipulates, however, that the alleged biological father of a child born to a married mother has standing to bring an action to determine the existence or nonexistence of the parent-child relationship.40 In the section that follows, I focus on the role of genetic tests in the adjudication of paternity cases. 5.1. The Authority of the Court to Order the Performance of Blood Tests In the 1930s, a number of U.S. courts began to accept the results of bloodgroup tests as evidence in paternity cases. Other courts refused to accept the results or to give them conclusive probative weight.41 Generally, the acceptability of genetic tests as evidence for establishment of paternity has increased gradually, correlative with the growing accuracy of the tests. According to British legal literature and court practice, a common-law court was not authorized to order the carrying out of blood tests. The reason for this position was not the fear of the inspected person’s self-incrimination but rather the fear that forcing an individual to be tested against his will would prejudice his personal liberties. This position, however, was altered in the late 1960s. According to section 20 of the British Family Law Reform Act of 1969, In any civil proceedings in which the paternity of any person falls to be determined by the court . . . the court may, on an application by any

164

Chapter Six

party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of that person. Section 21 of the same law explicitly indicated that the taking of blood samples was conditional upon the approval of the person involved. Notice that section 20 used the phrase “the court may,” thereby indicating that the court’s discretion was not unfettered and it had to consider the circumstances of each case. Also, the phrase “that a party to the proceedings is or is not thereby excluded from being the father of that person” reflects the pre-HLA and pre-DNA scientific stages, when the blood-group test could offer high probability only for the denial of paternity, not its positive affirmation. British courts did not hesitate to order blood tests, even in those cases in which the denial of paternity might have brought about the categorization of the child as a bastard. The issuance of precedents permitting rebuttal of the marital presumption42 enabled the courts to consider establishment of the truth, on the basis of all available data, as more important than the recognized paternity of a child. The courts held that discovery of the truth corresponded to the child’s welfare, because it was recommended that a child know his genuine origin and lineage. Only in exceptional cases may a court find that the child’s interests should prevail over discovery of the truth.43 In 1987 the phrasing of section 20 was amended to reflect the upgrading of scientific knowledge (probably the introduction of HLA typing): “blood tests” was replaced by “scientific tests” and “blood samples” by “bodily samples.” Following the promulgation of the 1989 Children’s Act, section 20 was again rephrased to allow for the use of DNA testing for the establishment of paternity.44 In the United States, a number of states have adopted three uniform laws: The Uniform Act on Blood Tests to Determine Paternity (1952), the Uniform Paternity Act (1960), and the Uniform Parentage Act (1973). These states, and also states that did not adopt these laws, hold that the court is usually authorized to enforce the litigants’ blood testing. In case of refusal, the law says that “the court may resolve the question against such party or enforce its order if the rights of others and the interests of justice so require.” U.S. legal doctrine does not view enforcement of the test as an infringement of constitutionally guaranteed personal liberties. The interest that law should serve the general public has been preferred to the prevention of the child’s bastardization.45 In Germany, the governing rule is that the litigants are obliged to provide blood samples for the determination of paternity, and the court can force them

From Physiognomy to DNA Testing

165

to do so. In France, the judge is obliged to order the administration of blood tests only if asked to do so by the presumed father. The French Court of Cassation ruled, however, that in the absence of a law prohibiting the court from ordering the test, the court is permitted to order it at any time, either on its own initiative or that of the mother or child. Blood tests are used with regard to the offspring of both married and unmarried couples.46 In Israel, paternity issues fall within the jurisdiction of the civil courts, although the rabbinical courts, authorized to adjudicate personal status affairs according to Jewish religious law (halacha), have been adjudicating paternity cases as well. In the absence of any statutory legislation on paternity, the civil courts, fearing that their decision may bring about the bastardization of the child by the rabbinical court, held that it was impossible to enforce orders for blood tests and that it was desirable for the court to get the litigants’ consent to conduct the tests.47 The Genetic Data Law, accepted by the Knesset, Israel’s parliament, in 2000 (effective December 2001), conformed to this opinion by stipulating that the performance of paternity tests required a court order and the agreement of the person to be tested. The Ministry of Health applied the same policy by prohibiting the performance of paternity tests on the children of a married mother unless ordered by an explicit decree of the court. An interesting precedent was set by Judge Asulin of the Beersheba Family Court in Bohadana v. Plonit (2002). In this case, two males were involved with the same unmarried mother during the period in which she became pregnant. One of them, the defendant, refused to undergo DNA testing. Judge Asulin ordered that a mucosa sample be taken from the defendant, on the grounds that this medical procedure was much less intrusive than taking blood samples. The judge explained that since the case involved two potential fathers, the child’s right to know the identity of his real father made it necessary to perform this test rather than to decide against the defendant on the grounds of his refusal to undergo the test. The defendant appealed the decision to the Beersheba District Court, arguing that the family court’s decision infringed on his basic rights of privacy and bodily autonomy. Judge Hendel accepted the appeal, on the grounds that only the legislature was authorized to order bodily inspection, even if it was not intrusive. Thus, the ball was returned to the Knesset’s court. Following the granting of the appeal, a few Knesset members proposed to legislate that DNA testing be a required procedure in paternity suits. According to the proposal, the test would be ordered only if the mother was unmarried both at the time she became pregnant and at the time she filed her lawsuit. According to the draft law, before granting the request to perform the test, the court would consider the best interests of the

166 Chapter Six

child, including the implications of bastardization.48 So far, this proposal has not been legislated. Lately, the judicial policy that refrains from enforcing the testing of the litigants, fearing the bastardization of the child by the rabbinical court, seems to be changing (see a 2004 decision by the Tel Aviv Family Court), because state courts have realized that even if the test establishes that the mother’s husband is not the biological father, the chance that the rabbinical court will declare the child a bastard is remote.49 5.2. Probative Value of Genetic Test Results Beginning in the mid-twentieth century, British court practice regarded the results of blood-group tests as certain proof for the denial of paternity, conditional upon these results being determined by experts and submitted to the court. Moreover, even before the introduction of HLA typing, British courts did not hesitate to consider the results of blood-group tests for the positive determination of paternity, according to the balance of probabilities test.50 According to section 20 of the British Family Law Reform Act of 1969, if the expert who conducts the tests concludes that the examined person is not excluded from being the father, he has to convey to the court the value, if any, of the results in determining whether that party is the father. The report shall be received by the court as evidence.51 In the United States, the Uniform Act on Blood Tests to Determine Paternity (1952) made exculpatory blood test evidence determinative. The Uniform Parentage Act (1973) stipulated that evidence for rebutting the marital presumption may include blood test results weighted in accordance with evidence, if available, of the statistical probability of the alleged father’s paternity. In view of the development of HLA typing, U.S. legal doctrine in the late 1970s proposed amending the laws in a way that simplifies accepting evidence of paternity.52 In German law, in the absence of statutory direction that paternity needs 100-percent proof, the male who was intimately involved with the mother at the time she conceived is presumed to be the father. This presumption may be refuted if the results of blood tests create doubts as to the paternity. The positive determination of paternity by blood tests is supported by both legal and medical literature, and blood tests are conducted as a routine judicial procedure.53 French law recognizes the results of blood tests as evidence for the denial of paternity, but until the late 1970s it refused to regard these tests as evidence for

From Physiognomy to DNA Testing

167

the positive affirmation of paternity, on the grounds that the scientific methods were not yet foolproof. The law could not, however, remain indifferent to scientific developments, and in 1976 a French court decision accepted as evidence of paternity a scientific determination that reached the level of “quasicertain.” It is clear that French court practice, although conservative, allows for the acceptance of scientific evidence for the establishment of paternity.54 In Israel, Judge Zilberg, in Ploni v. Ploni (1968), set the precedent of adopting the blood-group theory as a certain tool for the denial of paternity, making this theory part and parcel of judicial knowledge. In 1978, when HLA typing was already available, Judge Alon, in Sharon v. Levi, confirmed that the test established paternity both negatively and positively.55 The above-mentioned British section 20 prohibits the performance of bodily inspections without the consent of the person to be inspected. The court may, however, regard one’s refusal to undergo the test as evidence against him.56 French law is similar. U.S. law is more radical, as is German law: it authorizes the courts to enforce performance of the test; refusal to undergo the test is regarded as evidence against the putative father.57 In Israel, Judge Cohn, in Plonit v. Almoni (1961), ruled that it was impossible to reach judicial conclusions on the grounds of the putative father’s refusal to undergo blood-group testing. But Judge Alon, in Sharon v. Levi (1978), set the precedent that such refusal by the defendant tipped the scales against him. This precedent has become the practice of the Israeli courts.

6 . e gy p t i a n l e g i s l at i o n o n pa t e r n i t y a n d c o u r t p r a c t i c e In the 1980s, when European and U.S. courts were becoming more appreciative of the reliability of HLA typing for the establishment of paternity, Isam Ghanem, in his work on Islamic medical jurisprudence, predicted that as these tests became more reliable in the West and available in the Muslim world, it was likely that such states as Tunisia would use them in addition to the fiqh rules on paternity.58 This prediction was overly optimistic. That Muslim states, including Egypt, have not yet legislated the use of these medical techniques suggests that the legal paternity created by the principle of “the child is affiliated to the [marriage] bed” overcomes any evidence to the effect that the legal father is not the biological father.59 The Egyptian legislature’s only intervention in the field of paternity involves the length of pregnancy. It seems that the maximum period of pregnancy prescribed by the fiqh (especially by the Malikis and the Shafiis) has

168 Chapter Six

become a source of embarrassment for modernist intellectuals and professionals, especially those exposed to contacts with Westerners. Pushing for reform, the modernist Rashid Rida argues in one of his legal opinions that the determination of the maximum pregnancy periods by the ulama was not a divine prescription (nas.s. dı¯nı¯ ). The classical ulama’s knowledge in this field was based on questioning old women of their era, who might have been wrong, so this knowledge was not binding. Even had there been a case of a pregnancy that lasted four or five years, was it proper, asks Rida, to ground legal rules on such extremely exceptional cases? Contemporary medicine, he continues, has developed considerably, and females in modern times are much more knowledgeable about their bodies than were females of old. If modern knowledge is rejected, Rida concludes, there is a danger that educated Muslims will cease to respect their religion as divine.60 Another trigger for reform was the recurring complaints of Egyptian males to the Egyptian Ministry of Justice, to the effect that they were compelled, as legal fathers, to assume economic responsibility for supporting children born to their wives or ex-wives from other men.61 The reform took place in the framework of the 1929 family law. In the explanatory memorandum of that law, the legislators argue that the application of Hanaf ¯ı doctrine in the field of paternity has resulted in an increasing number of paternity lawsuits pertaining to children born to unmarried mothers. Motivated by bitter public complaints regarding this situation,62 the legislators (in article 15 of the law) prohibit the sharia courts from hearing any claim for the establishment of paternity if the absence of physical contact between the spouses after the date of their marriage is established; if the child is born more than one (solar) year subsequent to his father’s absence; or if the child is born to a divorcee (or a widow) more than one year after the date of divorce (or the husband’s death). The one-year period specified by article 15 accords with the maximum duration of pregnancy according to medical opinion. This period comprises nine months,63 the duration of normal pregnancy, plus a “safety period” of three months, to cover all exceptional cases.64 Egyptian legislators, then, have chosen to solve the social problem of paternity disputes by procedural means (depriving the courts of jurisdiction in certain circumstances) rather than by directly reforming the fiqh paternity rules. Like the reforms pertaining to the minimum age at marriage and to the duration of the waiting period, this policy was adopted to prevent a direct clash with the religious establishment.65 During the first half of the twentieth century, the sharia courts decided paternity cases according to Hanafi law and the 1929 legislation. The qadis’ first

From Physiognomy to DNA Testing

169

priority was the child’s interests, and they were willing to confirm paternity even in doubtful cases. Verification of natural father’s identity beyond any doubt was only a secondary priority of the qadis.66 The national courts that replaced the sharia courts from 1955 onward continued to apply the same combination of Hanafi law and the 1929 legislation.67 The result of this judicial policy was that children were sometimes affiliated to men who were probably not their natural fathers. Whereas in criminal cases the use of blood tests has become the norm,68 the use of medical examinations to determine the identity of the natural father is rare. In two cases from the sharia courts in which paternity was denied by the presumed father, it was the court itself that encouraged the man to undergo a blood test, but ultimately the test was not conducted.69 Other qadis held that in the event of contradiction, Hanafi rules of paternity take priority over the outcome of an expert medical examination. In one such case, a blood test ordered by the public prosecutor revealed that the present husband of the mother was not her child’s natural father. The court refused to consider this evidence and confirmed the paternity on the grounds that the child had been born a little over six months (the minimum pregnancy period, according to the fiqh) after his mother’s marriage to her husband. In another case the husband, Husayn Efendi Darwish Mustafa, argued that he had been away from his wife, Nafisa Muhammad Hasanin, during the three years preceding her giving birth. He therefore asked the court to send him and the baby girl for a blood test; the court refused, arguing that the need to perform such a test was preempted by the need to apply Hanafi doctrine.70 I return now to the case of the sterile “father” with which I opened this chapter. The civil court’s decision demonstrates that the obstacle to using medical tests as evidence in paternity cases was not a lack of technological know-how but rather conservative social and moral perceptions. In its decision, the court explained that granting the plaintiff ’s demand could lead to three possible results: (1) the declaration of the baby as an illegitimate child; (2) the establishment of the offense of adultery against the wife; and (3) the establishment of evidence against the wife to support the plaintiff ’s civil lawsuit for monetary compensation. The court declared itself incompetent to entertain the plaintiff ’s lawsuit, on the following grounds: establishment of paternity was subject to the exclusive jurisdiction of the sharia courts; and the case involved adultery presumably committed by a married woman. The court held that according to both the fiqh and the Egyptian statutory penal code, a paternity test could not serve as evidence for adultery. It was therefore legally impossible to force the mother’s new husband to submit to such a test. Even

170

Chapter Six

if a blood test of the plaintiff and the baby established that the plaintiff was not the natural father, it did not constitute a proof against the mother’s new husband. The baby had therefore to be affiliated to the plaintiff, in accordance with the fiqh presumption that “the child is affiliated to the [marriage] bed.” Supporting the position of the fiqh, the court held that a woman’s claim as to the identity of her baby’s father should be accepted unless adultery is established against her. In any case, adultery may be established by oral or other testimony but not by a physical test, which violates the privacy of a woman’s body and her honor. Nor should the current husband of the mother be medically tested, said the court, because such an examination would indirectly offend the wife’s honor. According to the court, the credibility of the physicians affiliated with the Forensic Medicine Authority and their respect for the honor of women were not relevant to the case. Had there been a desire to use medical tests in such circumstances, the court argued, the legislators should have introduced this procedure to the sharia courts, the proper and exclusive legal arena for dealing with paternity issues. Since legislators had not taken this step, it was impossible for a civil judge to initiate such a procedure in his court. By refusing the plaintiff ’s demand that paternity tests be performed, the court created a situation in which the plaintiff, who surely was not the natural father, could not escape being recognized as the legal father and economically responsible for the child.

7 . o p e n i n g a pa n d o r a ’ s b o x : m u s l i m s c h o l a r s discuss the use of dna testing in general a n d i n pa t e r n i t y c a s e s i n pa r t i c u l a r Distinguished Muslim scholars have recently begun to express their confidence in the reliability of DNA testing71 and see no principal inhibition to using it as legal evidence. For example, Dr. Nasr Farid Wasil, the former Egyptian chief mufti, ascribes great importance to DNA testing, which he characterizes as “decisive scientific sensory evidence” (dalı¯l h.issı¯ ilmı¯ qat.ı¯ ) based on analysis (al-tah.lı¯l) and inspection (musha¯hada). The test is important for discovering the truth and for establishing rights, and it is therefore essentially permitted ( fa-innaha¯ bi-h.ukm al-as.l muba¯h.a sharan). This general permissibility is, however, conditional upon the new discovery passing the stages of proof and application and reaching a stage of widespread practical use. The people conducting the test should be reliable and trustworthy, and the test

From Physiognomy to DNA Testing

171

should be conducted in such a way that it provides the highest percentage of probability.72 Dr. Sheikh Salih Al al-Sheikh, the president of the Courts of Summary Justice in Riyad, Saudi Arabia, explains that the probative value of DNA testing in Saudi courts, as in Western courts, is that of strong circumstantial evidence (qarı¯na qawiyya) rather than decisive proof (dalı¯l ithba¯t or dalı¯l qat.ı¯ ), and it cannot therefore be the sole basis for incrimination and punishment. If, however, strong circumstantial evidence supports the results of DNA testing, the probative force of the combined evidence is even stronger (aktharu ithba¯t an) than that of oral testimony. It is therefore within the qadi’s discretion (amr ijtiha¯dı¯ ) to decide on using the results of DNA testing, in considering other pieces of evidence that are available to him in a particular lawsuit.73 The Saudi lawyer Khalid al-Matiri explains that the use of DNA testing is easy in those legal systems in which the judge is free to rely on any evidentiary means in which he is confident (madhhab t.uruq al-ithba¯t al-mut.laq). Generally speaking, this holds for Islamic law, except for areas in which the law instructs the qadi to apply certain presumptions (for example, “the child is affiliated to the [marriage] bed” in paternity cases) or to use a particular kind of evidence (for example, four eyewitnesses in adultery cases). With respect to these topics, concludes al-Matiri, there is no option other than to require the qadi by statute to apply DNA testing.74 Following this principle, the introduction of DNA testing in criminal and civil cases, alongside other new scientific techniques such as the lie detector, has been smooth in Saudi Arabia and other Arab countries—for example, in murder and rape cases or for identifying bodies corrupted in disasters and wars. The above-mentioned Dr. Salih Al al-Sheikh adds that in a few Arab countries the results of DNA testing in criminal cases are considered “decisive evidence in support of both the plaintiff and the defendant” (dalı¯l nafyi wa-ithba¯t qat.ı¯ ).75 Wail Isa, an investigator in the Saudi Investigation Authority and in the general prosecution, reports that in rape and sodomy cases, the investigator routinely orders a DNA test, and if a correlation with the suspect is found, it is considered decisive circumstantial evidence or even proof. In such instances, the investigator recommends the infliction of the heaviest punishment, and the general prosecutor includes this recommendation in the prosecution file.76 Al-Majma al-Fiqhi al-Islami, at its sixteenth meeting (2002), adopted this position by saying that there is no sharı¯ inhibition to relying on DNA testing in a criminal investigation or to considering it as pro-

172

Chapter Six

bative means (wası¯lat ithba¯t) with respect to crimes, except in h.udu¯d and retaliation (qis.a¯s.) cases.77 In Muslim societies, paternity has traditionally been discussed only in the courtroom or within the privacy of the household. In recent years, the issue has been broken wide open, due largely to social, economic, and cultural factors—mainly the development of more egalitarian gender relations, especially among the younger generation, and the penetration of the global electronic media (TV, satellite, the Web) into almost every home. The activities of both international and local human rights and feminist organizations have also contributed to the public exposure of premarital sex relations and paternity cases, as well as to a growing awareness of DNA testing. In Saudi Arabia (and probably the Gulf countries), many males who travel to other Arab countries, such as Egypt, conclude unofficial marriages with local women, have children with them, and then desert them upon returning to their homelands. Later, some of these women arrive in Saudi Arabia to file paternity suits against those men.78 The use of DNA testing to establish paternity that may be the outcome of an unofficial marriage or adultery is much more problematic than is its use in criminal cases. The Saudi Dr. Zayd, director of the High Judicial Institute (Mahad al-Qada al-Ali), clearly explains this problem: DNA testing is used when it involves the public welfare (mas.lah.a)—for example, to punish criminals, to identify an anonymous person, or to identify a person who tries to adopt the identity of another person. However, the testing should not be used in cases in which it causes corruption (mafa¯sid ), such as in paternity cases: Since Islam seeks to prevent confusion over paternity, the presumption that “the child is affiliated to the [marriage] bed” supersedes any other evidence, to save the child from being harmed as a result of disputes over his paternity. If therefore a child has an established paternity that is known publicly, the ulama prohibit the use of DNA testing to deprive him of that paternity. Also, since Islam seeks to safeguard people’s honor (al-satr ala¯ ara¯d. al-na¯s), it is forbidden to use DNA testing as evidence of adultery instead of the four eyewitnesses required by the fiqh. The position articulated by Dr. Zayd is the one adopted in 2002 by alMajma al-Fiqhi al-Islami at its sixteenth meeting. In the field of paternity, the Majma declared that DNA testing should be used with extreme caution, and that the texts and principles of the sharia take precedence over DNA testing. The Majma prohibits reliance on DNA testing for the denial of established sharı¯ paternity. It also opposes granting preference to DNA testing over the lia¯n procedure, as well as the use of DNA testing for ascertaining the correct-

From Physiognomy to DNA Testing

173

ness of established sharı¯ paternity. To protect the honor of people and their paternal affiliation, the Majma urges responsible state authorities to use deterrent penalties to prevent the use of DNA testing for establishing paternity. The Majma limits the reliance on DNA testing in the field of paternity to three situations: (1) if, according to the fiqh, the person who is the subject of the dispute is of unknown paternity (majhu¯l al-nasab); (2) in cases of confusion about the identity of babies which take place in hospitals, in baby care facilities, or between test-tube babies; and (3) for ascertaining the identity of children following accidents, disasters, or wars. The position adopted by alMajma al-Fiqhi has become the applied doctrine of all sharia courts in Islamic countries.79 There are some scholars who wish to include additional situations in which the use of DNA testing is permitted—for example, when the husband is sterile or when the widow is required to establish the paternity of her child, which is being disputed by her late husband’s relatives.80 The same traditional perspective is demonstrated in legal opinions written in 2002 by the Azharite Abd al-Majid Subh; by Muhammad Iqbal Nadvi, the Imam of Calgary Mosque, Canada, and a former professor at King Saud University in Saudi Arabia; and by Abd al-Khaliq Hasan al-Sharif. Each of the three argues that a DNA test may serve only as supporting evidence, and that it is not a sufficient proof for establishing paternity. The reason given by Sheikh Nadvi is that DNA testing cannot tell us whether a person who committed adultery did so willingly or unwillingly and that therefore clear legal proofs, such as witnesses or confession, are required.81 The main reason for the reluctance of Muslim scholars to use DNA testing to establish paternity is clearly explained by the mufti Muhammad Zakariya from Ashrafiya University in Lahore: “Shariah does not recognize such tests as valid proof to determine the legitimacy of a child. DNA tests cannot replace the requirement of witnesses who must be present to prove the [adultery] charges in question.” Allowing the general public to use DNA testing would open a Pandora’s box, including several ethical, moral, and social issues. “Islam asks us to prohibit publicizing one’s sins. By adopting DNA tests as a method of determining paternity, we will end up propagating others’ sins.”82 In 2004 the well-known mufti Sheikh Yusuf al-Qaradawi took a cautious yet important step toward adopting DNA testing. He addressed the following question: “A husband accuses his wife of committing adultery and thus denies paternity of the child born in their wedlock. Is it the husband’s or the wife’s right to ask for a DNA analysis to establish paternity?” Qaradawi begins by discussing two relevant Quranic topics: (1) the h.add penalty for qadhf—accusing a Muslim of committing adultery without presenting suffi-

174

Chapter Six

cient evidence (which is four eyewitnesses); (2) the procedure of lia¯n, by which a husband who accuses his wife of committing adultery evades the h.add on qadhf and by which the wife is released from the h.add on fornication. This procedure results in dissolution of the marriage and the denial of paternity to the child, who takes only the name of his mother. With these points in mind, Qaradawi moves on to argue as follows: After the discovery of the DNA analysis, establishing paternity has become possible. However, the Muslim scholars are unanimous that if the husband has asked to apply the DNA analysis to support his denial of paternity of his wife’s child, his request is not to be granted, for this will make the wife lose the protection guaranteed to her by the provision of lia¯n.83 On the other hand, scholars have differed in opinion in cases in which it is the wife who asks for the application of the DNA analysis. The majority of scholars are of the opinion that her request is not to be granted. According to them, the measure of lia¯n is sufficient, for this is what Almighty Allah has prescribed in this case. Unlike the majority of scholars, Qaradawi sees nothing wrong in granting the wife’s request in these circumstances, on the grounds that she would not ask for the DNA test unless she was sure that the result would be in her favor. According to Qaradawi, conducting DNA analysis in this context would bring about three important benefits: (1) the wife would prove her innocence; (2) she would establish the paternity of her child; and (3) the husband would be reassured of his paternity. The sharia, concludes Qaradawi, “would not refuse a measure that accomplishes such a great benefit and which does not contradict a religious principle.”84 A more innovative position is presented by Dr. Amina Nasir, an Egyptian expert on theology and philosophy. In 2006 she argued that the means for establishing paternity follow the circumstances (t.ibqan lil-kayfiyya), and that since we are in the midst of a scientific golden age, fiqh scholars should engage in ijtiha¯d to find a way to incorporate DNA testing as an evidentiary means. This is necessary to spare the poor baby from carrying a burden for which he is not responsible.85 Dr. Nasir rejects the argument that incorporation of DNA testing as a means for establishing paternity will encourage acts of adultery. To the contrary, she says, the use of DNA testing will bring about a new situation in which every fornicator will have to bear the full responsibility for his actions.86

From Physiognomy to DNA Testing

175

8 . a l a n d m a r k pa t e r n i t y s u i t i n e g y p t : h i n d a l - h i n n aw i v . a h m a d a l - f i s h aw i In February 2005, the Family Court of al-Khalifa in Cairo handed down an innovative decision in a paternity case. The court ordered the following people to undergo a DNA test by the Forensic Medicine Authority: the plaintiff, Hind al-Hinnawi, a twenty-seven-year-old custom designer, the daughter of university professors; her daughter, Leena, fifteen months old; and the defendant, Ahmad al-Fishawi, a twenty-four-year-old popular TV actor and the son of two famous cinema artists. The purpose of the test was to determine whether Ahmad was Leena’s father. This was the first time in Egyptian judicial history that a court had ordered such a test in the context of establishing paternity. Until then, the use of DNA testing was limited to legal cases of a criminal nature.87 Hind and Ahmad met at the TV studios in which Ahmad, who nurtured his image as an observant Muslim, hosted Islamic religious programs directed at youth. The two fell in love, and according to Hind, they contracted an unofficial secret marriage. Such a marriage, known in Egypt as zawa¯j urfı¯, has in recent decades become more common between couples, especially students, who seek to legitimize their sexual activities when they lack the resources to enter into an official marriage or when their families object to their choice of marriage partner. Hind became pregnant. She probably expected Ahmad to marry her officially, but he refused and urged her to have an abortion. Contrary to the customary behavior expected from a young woman in such a situation, Hind refused and decided to keep the child. Ahmad seemed to be backing down. He told her he needed her copy of the unofficial marriage contract in order to register their marriage. In December 2003, she supplied him with the required document, but she saw neither the document nor Ahmad again. Luckily for her, her parents, contrary to prevailing Egyptian values, supported her. She gave birth to Leena and in 2004 submitted a paternity suit against Ahmad, demanding that the court compel him to undergo a DNA test. Hind sought no money from Ahmad. All she wanted was official recognition that he was the father so she could obtain a birth certificate for her daughter. During the first court session, on 6 January 2005, Ahmad’s attorney entirely ignored the facts of the case as presented by Hind, arguing that Ahmad never knew her. He added that in the absence of a marriage contract there was no legal ground to require his client to undergo a DNA test. The court, however, rejected Ahmad’s claim and, in February, ordered Hind, Leena, and

176

Chapter Six

Ahmad to undergo DNA testing. According to Hind’s attorney, the Egyptian family courts were eagerly awaiting a case such as this one that would enable them to push forward with DNA testing.88 As the date scheduled for the DNA test drew nearer, Ahmad became increasingly anxious. According to one report, the chief mufti, Ali al-Juma, and others urged Ahmad to recognize Leena as his daughter, on the grounds that a marriage witnessed by one person was valid according to the fiqh.89 Finally Ahmad, probably following some excellent legal advice, confessed in a media interview to having had an intimate relationship with Hind and suggested that Leena was his daughter, but he insisted that no marriage contract had been concluded between them.90 A few days later, toward the end of April, he met Hind and Leena at the Forensic Medicine Authority and repeated his earlier confession; but he persisted in his refusal to undergo DNA testing.91 Because according to current Egyptian law it is impossible to impose DNA testing on a male who denies paternity, the only option remaining to Hind in order to win her case was to establish that a valid marriage contract existed between her and Ahmad. Having no written document, she relied on a few witnesses to support her claim concerning her secret marriage with Ahmad. The court found the testimonies insufficient. On 26 January 2006, Hind’s lawsuit was turned down, on the grounds that an illegitimate relationship does not create paternity. One could sense, however, that the court was frustrated by its inability to force the DNA test on the defendant. This may be deduced from the fact that the court’s decision, after discussing the old sharı¯ means for the establishment of paternity, mentioned that the majority of jurists, following scientific progress, support the use of DNA testing as legal evidence.92 Following the issuance of the court’s decision, Hind released a bitter statement to the Associated Press: “Congratulations, Egypt. You now have a ruling that says: Do whatever you want, play with women and throw away the babies and no one will force you to have a DNA test.” She added she would appeal the ruling. “I’m going to fight until the last drop of my blood because this is my baby,” she said. “I cannot understand, what they want me to do? Should I live with a baby that doesn’t have any ID?” In Egypt, a father’s name is required for issuing a birth certificate, and such a certificate is necessary for obtaining an identity card, which is needed for most official procedures, such as enrolling a child in school and getting a child immunized. Hind was able to perform these tasks for Leena because she came from a well-to-do family, but she wondered what less-fortunate women were expected to do: “kill their babies, put them in an orphanage?”93 On 24 May 2006, the appellate court reversed the decision of the lower

From Physiognomy to DNA Testing

177

court and ruled in favor of Hind: “Providing a marriage contract is not the only way of proving that there was a marriage,” the appellate court said. “Evidence of a marital relationship suffices.” Sufficient evidence had been presented by witnesses to prove Ahmad and Hind’s marriage. The court therefore declared Ahmad to be the father.94 The final verdict in the case has been presented in the media as a great personal victory not only for Hind but also for the feminist and equal rights organizations that supported her struggle.95 It was a loss, however, for those urging incorporation of DNA tests into the procedures for establishing paternity, since the case had eventually been decided according to the fiqh presumption of “the child is affiliated to the [marriage] bed.” The court’s authority to enforce DNA testing, the probative value of the test, the court’s right to consider the alleged father’s refusal to undergo the test as circumstantial evidence against him—all these issues were ignored in the final court decision. I hold therefore that the Islamic circles who considered the final verdict a victory for the sharia96 were correct. Hinnawi v. Fishawi raised a huge storm and a fierce debate in Egypt. Its media exposure was unprecedented: Hind, Ahmad, and the parents on both sides were interviewed, and they confronted each other repeatedly in all the available media channels, both local and international, bringing the case into countless Egyptian homes.97 Many Egyptians (including Ahmad’s parents) were outraged that the case brought about an open debate on the subjects of premarital sex and urfı¯ marriages. They accused Hind of being morally wanton and her parents of betraying common religious and societal norms. Others—mainly feminists and human rights and liberal activists—criticized public hypocrisy, which prefers to live in denial, lies, and ignorance rather than openly discuss sensitive moral issues. These activists, including attorneys who represented Hind during the judicial process free of charge, saw the case as a chance to fight what they considered the double standards of Egypt’s male-dominated society, in which women must bear the consequences of sex while men are not held accountable.98 The Hinnawi v. Fishawi episode is an exemplary case for studying the current Egyptian debate on such core cultural values as sexuality, gender, and familial relations. I wish to focus, however, on the part of the debate relating to the use of a relatively novel scientific technique, DNA testing, in the context of adultery and paternity. One striking fact is that everyone involved in this debate, including ulama, lawyers, and physicians, agreed that the reliability of the test was close to perfect. They insisted only that the test be performed by a reliable institution and according to the highest scientific standards.99

178

Chapter Six

According to reports, there are twelve thousand to eighteen thousand pending paternity cases in the Egyptian courts, most of which are the result of urfı¯ marriages, in addition to many more unreported cases. Clearly, this problem is a source of grave anxiety on a national level.100 In the aftermath of the court decision in Hinnawi v. Fishawi, feminist organizations aired a few demands concerning “unfathered” children, one of which was that DNA testing be included as a required procedure in such lawsuits, upon the request of the mother. Refusal by the alleged father to undergo the testing would be considered by the court as circumstantial evidence (qarı¯na) against him. The state would cover the cost of the test.101 Growing public pressure to introduce the DNA test as an evidentiary device in paternity cases led a few members of parliament to submit a proposal for amending the personal status code in the spirit of the feminists’ demands. According to the proposal, if the test establishes that the defendant is not the biological father, the plaintiffmother may be punished by imprisonment of up to three years and a fine of up to 25,000 Egyptian pounds.102 That the proposal uses the terms father and mother rather than husband and wife may imply that its drafters meant to apply the proposal also to children born out of wedlock, an innovation from the perspective of the fiqh. The proposal was forwarded to the Egyptian chief mufti, Dr. Ali Juma, for consideration. At the beginning of March 2006—that is, before the release of the appellate court verdict in Hinnawi v. Fishawi—the chief mufti released an innovative fatwa¯. He said that Islam encourages the use of material scientific means that lead to certain knowledge of the truth. There is no sharı¯ impediment to demanding from the one who denies paternity (be it the man, the woman, or the guardian) that he/she undergo DNA testing. This holds when one of them claims the existence of a marriage contract between them (established by witnesses or formal registration), and also in cases of irregular ( fa¯sid ) marriage and quasi marriage (wat. bi-shubha), due to the sharia’s concern for the rights of the child. If the test establishes that the person who denies paternity is indeed the father, he will be considered a qa¯dhif and be subjected to the appropriate punishment decided on by the ruler.103 A refusal by the defendant to undergo the test will be considered “strong circumstantial evidence” (qarı¯na qawiyya) against him. The fatwa¯ emphasizes, however, that the establishment of paternity by the use of DNA testing is not applicable to nonmarital sexual unions, because adultery does not create any paternity. Also, new legislation introducing the DNA test will not be applied retroactively.104 To conclude, the chief mufti’s fatwa¯ goes further than that of al-Qaradawi by facilitating the use

From Physiognomy to DNA Testing

179

of DNA testing not only at the request of the mother but also at the request of the husband and the marriage guardian, thereby denying the mother the protection granted to her by the lia¯n procedure. Among ulama and judicial functionaries, opinions were split. One opponent of the initiative to introduce DNA testing, Judge Khalid al-Shayib, president of both the Cairo Appeals Court and the al-Jiza Court of First Instance, argued that, since an official marriage establishes paternity even if the husband is not the biological father of the child, the wife is assured that her child has a secured legal paternity; therefore, DNA testing is redundant from her perspective. However, if a husband wishes to deny his paternity of a child born to his wife, he has the sharı¯ option of lia¯n, which also protects the wife from being incriminated as an adulteress. If we open the gate for DNA testing, says the judge, we will bring about the ruin of prosperous households. The household locks away the secrets, while the DNA test brings those secrets into the open (al-buyu¯t mughlaqa ala¯ asra¯r thumma anna [al-] DNA maththala ay shay). If a married woman has borne a child not from her husband, explains the judge, a DNA test will reveal that she is adulterous, bringing about severe implications for her personally and for her family. On top of harming the good reputation of people, the introduction of DNA testing will encourage unofficial marriages and having children out of wedlock.105 To the contrary, Dr. Abd al-Mati Bayyumi, a member of Majma al-Buhuth al-Islamiyya at al-Azhar, strongly supports the chief mufti’s opinion, arguing that DNA testing should replace the lia¯n procedure as the main probative means for establishing paternity and adultery. He explains that in the current age, characterized by moral corruption and the weakening of religious conscience, lia¯n has lost its effectiveness as a deterrent. Muslims who no longer fear Allah’s wrath have no inhibitions about committing perjury. It is therefore necessary to use DNA testing as decisive evidence, because it will deter those who disregard honor, contribute to the welfare of children, and promote justice.106 A position between Judge al-Shayib’s and Dr. Bayyumi’s is proposed by Isam al-Shiar, the sharia expert of the Islamonline Web site. He argues that even if the results of DNA testing establish that the husband is not the father, these results are not sufficient for denial of paternity; the husband has to apply the lia¯n process, which is based on a clear-cut Quranic text, applicable to any time and clime.107 The opinions of al-Shiar and other scholars who similarly do not object to the performance of DNA testing,108 provided it takes place before the execution of lia¯n, suffer from one major weakness: they do

180 Chapter Six

not clarify what happens if the DNA testing establishes that the husband is indeed the biological father. Is he still entitled to carry out the lia¯n, or is he deprived of this Quranically prescribed right? While the majority of ulama and judges support the mufti’s opinion—that DNA testing may be used only in paternity cases involving married couples and not in cases of adultery109—a few scholars hold that the reform law proposal should refer also to children born out of wedlock. Dr. Suad Salih, dean of the Islamic and Arabic Studies Faculty at al-Azhar’s women’s section, in collaboration with the above-mentioned Dr. Bayyumi, has proposed a novel approach. They argue that the Quranic injunction (33:5) to affiliate children to their fathers applies not only to fathers who are validly married (which is the preponderant opinion among the Sunni law schools) but also to unmarried fathers, bearing in mind that the best interest of the child is to be affiliated to his “real” father (abu¯hu al-h.aqı¯qı¯ ). In support of their interpretation, Salih and Bayyumi cite the opinions of scholars from the first generation after the Prophet (ta¯biu¯n), such as Ibn Sirin (d. 729 in Basra), Urwa b. al-Zubayr (d. circa 712 in Medina), and Hasan al-Basri (d. 728). These authorities hold that, if a male fornicator claims paternity of a child born to a married woman, his claim is denied (on the grounds that “the child is affiliated to the [marriage] bed”). If, however, the mother is unmarried and the fornicator claims paternity, or if paternity is evidenced by probative means such as DNA testing,110 then paternity is legally established. According to Abu Hanifa, the eponym of the Hanafi school, the fornicating father should marry the mother, at least for a short period, for the sake of the child’s welfare. Salih and Bayyumi hold that if the Egyptian state applies the severe and deterring h.add punishment for adultery, the adoption of their opinion will not necessarily encourage adultery.111 Dr. Abd Allah al-Najjar, an expert on civil law at al-Azhar and a member of Majma al-Buhuth al-Islamiyya, supplies an alternative line of reasoning in support of the same opinion. He agrees that the presumption that “the child is affiliated to the [marriage] bed” sets the general criterion for establishing paternity, yet there are situations in which the child is not affiliated to the mother’s legal husband—for example, when physical contact between the spouses during the period of conception was impossible. Moreover, Dr. al-Najjar holds that since the jurists agree to the affiliation of a child to his adulterous mother, there should be no impediment to his affiliation to his fornicating biological father, due to the fact that the male and the female share responsibility for the act of adultery.112 In addition to their use of takhayyur, Salih and Bayyumi draw an analogy between physiognomy and DNA testing113—an analogy discussed by other

From Physiognomy to DNA Testing

181

scholars as well. Dr. Ahmad Yusuf Sulayman, head of the Sharia Department of Dar al-Ulum Faculty at Cairo University, argues that the use of novel scientific means such as DNA testing is a necessity, because their probative value is superior to that of such traditional techniques as physiognomy, the use of which is inappropriate in modern times.114 The Syrian Dr. Wahba al-Zahili, a fiqh expert in the Sharia Faculty, says that the use of DNA testing for identifying a child of unknown parentage (majhu¯l ) should follow the procedures set by the jurists for physiognomy (bil-d.awa¯bit. al-shariyya al-muqarrara li-qarı¯nat al-qiya¯fa): one expert (khabı¯r) is sufficient for conducting the DNA test, analogous to a Muslim upright qa¯if. He concludes that this testing is permitted only in a case in which stronger evidence (al-dalı¯l al-aqwa¯, such as the presumption that “the child is affiliated to the [marriage] bed,” or the lia¯n) is absent or various pieces of evidence contradict each other (taa¯rud. al-adilla).115 The Azhari scholar Dr. Muhammad Rafat Uthman justifies the analogy between physiognomy and DNA testing on the grounds that physiognomy, like DNA testing, provides strong probability, the results of which are close to apodictic (z.ann qawiyy yaqtarib min al-yakı¯n).116

9 . a c o m pa r a t i v e p e r s p e c t i v e : i s l a m i c f i q h a n d j e w i s h h a l a c h a ; e g y p t i a n l aw a n d i s r a e l i l aw The system that lends itself most conveniently to comparison with Islamic fiqh is Jewish halacha. Both are jurists’ legal systems, developed by independent scholars through the ages. Regarding paternity, both legal systems share the presumption that the child is affiliated to the legal husband of his mother (in fiqh: al-walad lil-fira¯sh; in halacha: ro¯v beı¯lo¯t ah.ar ha-baal);117 in both systems the legal husband may deny paternity of his wife’s child only through a process of imprecation (in fiqh: lia¯n; in halacha: dı¯n yakı¯r).118 There are, however, substantial points of difference: In halacha, the concept of paternity is biological. The affiliation of a child born to an unmarried mother is therefore unproblematic, while a child born to a married mother by a man who is not her husband is classified as a bastard (mamzer).119 By contrast, since the fiqh concept of paternity is legal, as in Roman law, any child born out of wedlock is deprived of paternal affiliation. There is a substantial similarity between current Egyptian law and Israeli law, in the sense that both states inherited the Ottoman model: family law issues are adjudicated according to the religious law of the litigants, be that Jewish, Christian, or Muslim, while all other fields of law (civil, criminal, and commercial) are adjudicated according to state law, heavily influenced

182

Chapter Six

by Western models. There is, however, a substantial formal difference with regard to paternity: whereas in Egypt paternity is a clear family law issue, in Israel it is a civil matter. In practice, though, both the rabbinical and the civil courts in Israel adjudicate paternity cases. When the matter under discussion is paternity, the civil courts, fearing that their decision may bring about the bastardization of the child if the case arrives at the rabbinical court, are heavily influenced by substantial, evidentiary, and procedural Jewish law.120 In premodern halacha and fiqh, the jurists, while using science and medicine for establishing facts, relied on common sense and intuition rather than on systematic scientific research. Traditional medicine was mainly a matter of craftsmanship and practical wisdom. The craftsman was preferred over the layman (including the jurist) on the grounds not of qualitative advantage but of quantitative advantage—the craftsman accumulated richer practical experience due to his occupation. Since the traditional physician was considered a craftsman, his reliability as a witness on legal issues was an issue debated in halachaic texts. The knowledge of physicians did not become part of judicial knowledge; it therefore required the person of the physician to lend it credibility. By contrast, modern medicine relies on science and is no longer based mainly on practical wisdom. Modern medical knowledge strives to be objective, based on experiments, the quantification of laws and evidentiary statements, and the mathematical presentation of these laws and statements. On the one hand, their mastery of modern medical knowledge confers on physicians a qualitative advantage over jurists, who are often unfamiliar with developments in the natural sciences. On the other, modern medical knowledge, having once gained the recognition of the scientific community, gradually becomes part of judicial knowledge and no longer requires the personal authority of the medical expert to lend it credibility.121 The field of fertility and birth is still considered by Jewish (and Muslim) jurists as a practical medical one, because it is dominated by physicians.122 This field has developed gradually, and the jurists therefore do not find it too difficult to integrate its new medical techniques into their discourse and judicial practice. By contrast, in the field of genetics, which affects the establishment of paternity, Jewish jurists, like their Muslim counterparts, face vast difficulties in integrating the achievements of modern science. There are at least three possible explanations for these difficulties: (1) Since the Mishna123 period, the halacha has dealt with the establishment of paternity by developing such indirect means as the presumption ro¯v beı¯lo¯t ah.ar ha-baal and the procedure of dı¯n yakı¯r. Twentieth-century genetics, however, has revo-

From Physiognomy to DNA Testing

183

lutionized the field by making it possible to reach a sure finding regarding paternity, thereby posing a direct threat to the system of halacha. (2) The wide gap separating contemporary jurists from scientific activity, and their unfamiliarity with scientific knowledge, has brought about a feeling among them of loss of control, resulting in alienated, even hostile, reaction toward scientific innovations. As familiarity with scientific knowledge among jurists increases, their hostility gradually becomes pragmatic. (3) A further obstacle to integrating scientific findings is the harsh judicial result of bastardization that may emanate from such findings.124 For example, after thoroughly studying the scientific aspects of DNA testing, Rabbi Wazner said that it is forbidden to declare a child a bastard on the basis of the test even though, from the perspective of science, lack of similarity between the child and the presumed father is an absolute factual clarification.125 With regard to DNA testing in particular, modern Jewish scholars, like Muslim scholars, have agreed in principle to recognize the probative value of the test, on the grounds that the halacha recognizes a natural law determined by a statistical sample, as in the case of DNA testing.126 Thus, Jewish jurists permit reliance on DNA testing for identifying bodies of anonymous persons and those of soldiers who have died in combat. Also, when the matter at hand is releasing an agu¯na,127 the jurists, seeking to free a woman from misery by enabling her to remarry, permit declaring the missing husband dead on the basis of DNA testing.128 If, however, the use of DNA testing creates a confrontation with important halacha principles, the jurists tend to avoid this testing or consider it lightly. Such a confrontation emerges in the following three cases: (1) When the results of DNA testing would bring about the bastardization of a child. (2) When a person argues that he or she is the legal heir of a person who is already resting in his grave. Some jurists forbid the taking of a bodily sample from a corpse for the purpose of DNA testing, on the grounds that this process is disrespectful to the deceased. The jurists also forbid depriving a recognized heir of his inheritance rights on the basis of DNA testing (however, if there is no recognized heir besides the claimant, it is permitted). (3) The jurists forbid reliance on DNA testing to establish a criminal charge against a suspect (especially if such incrimination would result in a probable death sentence), on the grounds that only the testimony of two eyewitnesses may establish criminal guilt. Egyptian national family courts and Israeli rabbinical courts apply their respective religious laws. Westreich, who has studied the decisions of the rabbinical courts that touch on genetics, discerns three diverse positions

184

Chapter Six

or tendencies. The first two, in particular, characterized the rabbis during the premodern and Jewish Emancipation periods.129 The first tendency is marked by a receptive attitude that looks favorably on modern science and its achievements and adopts its findings in reaching judicial decisions. This is a minority tendency, represented by Rabbi Hertzog in the 1940s and 1950s. It claims that the dictums of the sages of the Talmudic era (Hazal) are based on contemporary scientific knowledge rather than on divine revelation, while the dictums of modern science, although occasionally mistaken, are solidly based and therefore carry greater weight than those of Hazal. The second tendency is an ignoring or alienating one that disagrees with science and refuses to use its conclusions as a basis for judicial decisions. More prevalent than the first, this tendency, represented by Rabbis Uziel and Waldenberg during the 1940s and 1950s, prefers ambiguous Midrashic dictums130 over scientific findings, on the grounds that the statements of Hazal are rooted in revelation and science is prone to changes, for which reason its findings are unreliable. Rabbi Shlomo Aviner eloquently expresses this position: Halacha matters are not decided according to scientific criteria that evade the human eye, and the Torah was not given to the ministering angels or to the users of microscopes . . . it cannot be that a certain child was not a bastard a hundred years ago, while now he would be considered one because of a scientific discovery. The entire Torah was given according to the human vision . . . and, yes, our child is legitimate and the son of his father, because the Torah was given according to human mind and according to standard legal evidence.131 The third position is pragmatic and neutral. It considers science a technical tool and changes its attitude toward science from case to case. This last tendency has become the most common among rabbinical judges since the 1950s (see, for example, the decision of Judge Deichovsky, below).132 If we follow the chronology of Israeli rabbinical court decisions on paternity, we notice that there has been some development—certainly more substantial than that discerned in the Egyptian courts. To demonstrate this, I briefly present three rabbinical court cases. The first case, from the 1950s, exemplifies the reluctance of the court to rely on scientific evidence (see the second judicial attitude above): the wife, her ex-husband (that is, the presumed father), and her life partner asked that the latter be recognized as the father, on the basis of the blood-group test’s results. The rabbinical court of Haifa rejected the request on three grounds: (1) the findings of the test do not

From Physiognomy to DNA Testing

185

permit positive establishment of paternity, and, moreover, these findings are unable to negate the paternity of the presumed father; (2) according to Jewish halacha, the child’s blood group follows that of the mother and not that of the father133 (the court, however, distinguished between the position of the halacha, which refers to the “body of the blood,” and blood-group tests, which do not use samples of the “body of the blood” but rather samples of blood cells and tissue taken from the “body of the blood)”; and (3) scientific knowledge is not decisive and changes from time to time. While the distinction made by the court in (2) may have had the potential of opening the door to the future acceptability of HLA and DNA testing, by the argumentation presented in (3) the court apparently closed the door to any future reliance on scientific methods, even the most sophisticated and certain.134 The second case, from 1960, exemplifies the pragmatic third tendency: The rabbinical court of Tel Aviv confirmed the paternity of the presumed father in spite of negative blood-group test results. However, the court did not ignore the results altogether. It made a distinction between the wisdom of physicians, which changes from time to time and is therefore unreliable, and the blood-group test, which is based on observation and statistical deduction. The test should not be relied on for a sure denial of paternity, the court said; yet the test casts doubt which, under certain circumstances, overcomes the presumption embedded in ro¯v beı¯lo¯t ah.ar ha-baal.135 The decision of Judge (dayyan) Deichovsky in the third case, from the 1980s, comes closest to the receptive tendency of Rabbi Hertzog. In this case, the findings of HLA typing negated the paternity of the mother’s husband (it should be noted here that HLA typing studies the white cells that exist in any bodily tissue, not only in blood cells, and therefore does not contradict the Hazal dictum mentioned in n. 134 above).136 Judge Deichovsky set a precedent by detaching the issue of bastardization from the financial issue. On the one hand, the judge abstained from declaring the child a bastard, on the grounds that HLA testing suffers from a few-thousandths percent of uncertainty. On the other hand, contrary to the Talmudic position, the judge exempted the husband from the requirement to support the child, on the grounds that the findings of HLA typing prevail over the presumption ro¯v beı¯lo¯t ah.ar ha-baal.137 To sum up, in spite of the different concepts of paternity in halacha and fiqh, it seems that these systems of religious law have in common numerous difficulties in coping with the legal implications of the achievements of modern genetics. This is so because genetic truths in general often contradict traditional divinely inspired knowledge, and, more specifically in the field of

186

Chapter Six

paternity, reliance on genetic findings may bring about two dangerous sociomoral results: (1) the bastardization of children; and (2) the public exposure of immoral sexual conduct, in addition to indirectly granting legitimacy to out-of-wedlock conjugal relationships. The majority of religious scholars in both systems admit the high probative potential of genetic findings. These scholars approve the use of genetics in “less sensitive” realms of the law, such as criminal law. With respect to making room for such findings in the legal field of paternity, a similar division of positions exists in the two systems: one position (such as that of the Egyptian judge al-Shayib and Rabbis Uziel and Waldenberg) that refuses any standing to the scientific finding; a second, pragmatic position (such as that of alQaradawi, the Egyptian chief mufti, and Judge Deichovsky) that adopts the scientific finding in cases where it does not contradict a religious principle— which is the preponderant position in both systems; and a third, receptive position (such as that of Drs. Salih, Bayyumi, and Nasir and Rabbi Hertzog) that seems to be a minority one.

10. conclusions In Egyptian law, the marital presumption of paternity remains unassailable, which indicates that the social purposes it is designed to serve—defending the integrity of the marital family, protecting against the bastardization of children, and preventing exposure of the immoral conduct of the parents—are still the dominant societal norms. In the United States, social developments during the last four decades have shaken the traditional notion of the family. The increasing numbers of divorces, unmarried mothers, and unwed couples, and the growing emergence of gay and lesbian relationships, have raised the dire question whether protection of the marital family still deserves to be the first priority of the law. The marital presumption of paternity is still important in U.S. law. U.S. judges have described it as “a fundamental principle of the common law” and as “one of the strongest presumptions known to law.”138 But in current U.S. law this presumption is weaker than in Egyptian law: it is rebuttable, and it competes with alternative assumptions of paternity, both formal (biological paternity) and informal (social or behavioral paternity—that is, the care and support of a child by a parent). The coexistence of various and even contradictory notions of family and of paternity, both in statutes and in court judgments, attests that these notions are currently being negotiated and reshaped by U.S. society. The manner in which the marital presumption is applied in U.S. law offers

From Physiognomy to DNA Testing

187

maximum protection to the presumed father: on the one hand, so long as the marriage is intact, he enjoys a secured paternity of his wife’s children, even if he suspects (or knows for certain) that they are not his biological children; on the other hand, upon divorce, he is permitted to rebut the presumption on the grounds of nonexistence of biological paternity. Thus, the main criticism leveled against the marital presumption by U.S. legal analysts is that it fails to protect the welfare of children and neglects altogether the wishes of the mother, who is morally condemned as a fornicator. One observer proposes that retreat from the marital presumption of paternity may provide an opportunity “to design an approach that will foster responsible parenting, so that children will have the strongest possible opportunity in these insecure times to have the consistent love and support of their fathers.”139 Although the dominant trend in current U.S. law is biological paternity, this trend is severely criticized as well. On the one hand, critics argue that inclusive statutes, which grant all putative fathers (including one who has not established an actual relationship with his child) a right of action to rebut the marital presumption, are unconstitutional, because they infringe on the constitutional due process rights of the marital family without sufficient justification. On the other hand, exclusive statutes that deny all putative fathers (including one who has a developed relationship with his child) a right of action violate the constitutional due process and equal protection clauses, because they deny a putative father the fundamental right to maintain a relationship with his child. One analyst suggests distinguishing between putative fathers according to the “Developed Relationship Test”—only a putative father who has developed and nurtured a relationship with his child will be permitted to rebut the marital presumption, and vice versa.140 In conclusion, the attitude of Egyptian (and also Israeli) law toward genetic tests for establishing paternity is not rooted in opposition to scientific knowledge or techniques. As I have shown, genetic testing is commonly used in various legal fields other than paternity. The main issue is the desire of legal elites, as well as other dominant power groups, to defend the traditional notions of the marital family and paternity. Traditional elites, especially the religious establishment, fear that the erosion of the marital family without offering an appropriate alternative familial model will bring about undesired social consequences and result in social chaos. Also, the struggle of these elites to defend the traditional perceptions of family law is part and parcel of their effort to defend their position of political influence, endangered by secularscientific-professional new elites. It seems that the Egyptian religious establishment (and to a lesser extent the Israeli one) has succeeded in postponing

188

Chapter Six

an open public debate and delaying (in Israel) or preventing (in Egypt) the promulgation of legislation that contradicts religious rules of paternity. The current Egyptian debate on notions of paternity and the use of genetic tests for establishing paternity brings to mind similar debates in the United States during the 1970s. Conflicting worldviews are at play, crucial interests have to be weighed one against the other, and serious questions have to be addressed: Is it in the best interests of a child to have a secured legal paternity or to know who his natural father is? Should the interests of the family as a unit take precedence over the individual interests of the husband who is not the biological father? What are appropriate gender relations? Are out-ofwedlock conjugal relations acceptable? Does an open public debate on sensitive socio-moral issues serve society better than “keeping secrets hidden within houses”? The court ruling in Hinnawi v. Fishawi and the proposal submitted to the Egyptian parliament in the wake of the ruling attest to the development of initial ruptures in the Egyptian consensus on the marital presumption of paternity, and the first appearance of assumptions of biological paternity. These developments have been initiated by the secular upper-middle and upper classes, while the majority of the Egyptian public still maintains its traditional views. Such distinguished ulama as al-Qaradawi employ creative thinking (even ijtiha¯d, one might say, by drawing an analogy between physiognomy and DNA testing) to incorporate genetic testing, albeit in a limited way, in paternity cases. This tendency indicates that the ulama are well aware that ignoring the challenges posed by notions of biological paternity is futile. The ulama wisely understand that it is better for them to be involved in the public debate over paternity, thereby seeking to direct its development in the desired way, rather than leaving the arena to the dominance of secular forces. Although any speculation about future developments in Egypt is risky, I dare to make a cautious one: If the current Egyptian political regime stays in power, the coming decades will witness further cautious steps in the direction charted by the law proposal submitted to the Egyptian parliament in the wake of the ruling in Hinnawi v. Fishawi. If an Islamic regime comes to power, we may expect a stricter application of the fiqh rules on paternity.

conclusion

Islamic Expert Witnessing in Comparative Perspective

Each chapter of the book ends with a careful roundup of its main findings and conclusions, which renders a repetition of them here unnecessary. This short concluding chapter is therefore devoted to commenting on a few comparative aspects of Islamic expert witnessing. I am aware that comparisons among various legal systems are highly risky, because one has to consider the different and changing historical, cultural, political, and social circumstances in which any legal system has developed and operates.1 I believe, however, that the comparative aspect of this book is justifiable, on the grounds that a reliable determination of the facts is a major concern in any legal system, not just in Islamic law. Also, a comparative perspective precludes Islamic law from being dealt with as a peculiar phenomenon, carrying its own unique logic, apparently incomparable with other legal regimes; a comparative perspective demonstrates that Islamic legal systems have shared the theoretical and practical concerns of other, non-Islamic, legal systems. Expert witnesses, by their special ability to interpret material indicators and convey local knowledge and customary practices to the court, have been an essential element in assisting judges to establish the facts of a case, as well as in bringing changes in knowledge, practice, and custom to the cognizance of the courts. They have the sort of firsthand knowledge the court itself may lack. When the court uses their findings, it not only distributes some of the burden of its decision to those who are respected and knowledgeable members of the marketplace; it also makes its own decisions appear less arbitrary, because they are based on the shared opinion of several others. Put differently,

190

Conclusion

the way evidence is sought and shaped is one that pushes fact-finding down, away from the judge, so that when the facts do arise for his consideration his decision is seen less as arbitrary or based on an abstract rule of law and more as reflecting the standards of the particular locale of his court.2 In referring to the character of various systems of using outside expertise and their ways of operation, I have discussed two main questions: (1) When does a certain legal system decide to use expert testimony, and why? (2) Where judicial systems do use expert testimony for fact determination, why do differences exist among them in the modes and procedures for using the experts? With regard to the first question, this study has demonstrated that since legal systems in general are a social tool, at times reflecting cultural and social norms and at other times seeking to prescribe them, fact determination is a means rather than an end in itself. In other words, the cultural, social, and political interests that inform the goals of a particular legal system take precedence over the mere search for the factual truth. For example, the reluctance to use the testimony of females, emanating from patriarchal perceptions of male-dominant elites, was common to both premodern Jewish and Islamic law, as well as to early modern legal systems in Western Europe. In such contexts, preservation of the patriarchal order had priority over an uncompromising search for factual truth. In the case of modern Islamic societies, the political struggle for power between the traditional elites—particularly the ulama, representatives of old values and traditional knowledge—and the new, ascending professional elites—representatives of Western-inspired positivist scientism, secularism, and liberalism—had a profound impact on the operation of expert witnessing. The field of family law has remained the last political bastion of the ulama, and they have succeeded in resisting, or at least postponing, any attempt to introduce scientific means of fact-finding that had the potential of jeopardizing their own status within this system and replacing them with representatives of the new culture. By contrast, as this study has shown, judges of the secular modern legal systems, who viewed themselves as belonging to that new culture and were less afraid of losing their jobs and positions, were much more open to adjusting judicial procedures to the availability of scientific probative means—as demonstrated in the absorption of forensic medicine into criminal adjudication. The cultural and social values that inform the content and operation of a legal system decide in which circumstances it will opt for reliable fact-finding at any cost. Fear among traditional elites—of an unbalanced and too rapid erosion of a long-standing cultural and social ethos sanctified by religious

Islamic Expert Witnessing in Comparative Perspective

191

texts, of the spread of secularism and moral looseness, and of disintegration of the social order, resulting in social chaos—has informed their reluctance to introduce scientific means for fact-finding in the realm of family law. Defending the patriarchal nature of the marital family, defending children from the harsh social prejudice emanating from bastardization, and rejecting any attempts at adopting alternative modes of familial and parental organization were among the main reasons for blocking any attempt to establish biological paternity by DNA testing—both in the Muslim legal system and in the Israeli one, informed by the prescriptions of Jewish halacha. The same is true, albeit to a lesser extent, with respect to virginity, pregnancy, and birth examinations. That reluctance to use scientific means in the realm of family law is not informed by opposition to science per se is attested by the fact that DNA testing has been smoothly integrated into the adjudication of criminal cases in modern Islamic legal systems. By contrast, in Western European and North American societies, in which individualism reigns supreme and the dominant marital perception of paternity has lost ground to such alternative perceptions as the biological and functional ones, biological paternity tests have long been routine. Legal systems in different cultures, times, and geographical areas tend to have the same topical and procedural concerns. This study has demonstrated that medieval Muslim scholars urged experts to restrict their reports to their professional findings and conclusions and abstain from referring to the legal consequences of these findings, which is the sole responsibility of muftis and qadis. The same concern is embedded in the prohibition on the expert to testify on the “ultimate issue,” prevalent in Anglo-American common law. In a sense, experts in all legal cultures, by suggesting the correct interpretation of a set of facts, are in some ways always speaking to ultimate issues. It is just that they are warned not to present their findings as if they were orders that the court should adopt, and they certainly are not allowed to usurp the actual power of the decider of fact, be it a qadi, a judge, or a jury. Moving to the second question, why there are differences among legal systems in the modes and procedures by which they use expert witnesses, the fact that the same legal system may employ a number of ways of using experts attests that the goal of reliable and qualitative fact-finding takes precedence over aspects of technique or procedure. Thus, in the British system before the nineteenth century there were three channels for using experts: as jurors, as advisers of the court, and as partisan witnesses. In Jewish law, the expert was either one of the judges or a witness who informed the court in return for a payment. In Islamic premodern courts, the expert was usually summoned by

192

Conclusion

the judge or, less often, served as a witness of one of the litigants. One of the main findings of this study is that premodern Islamic courts clearly preferred to use two experts for each case,3 rather than one, in order to increase the probability that the expert report was accurate. This preference supports the conclusion that the expert was essentially perceived as a witness. More important, the particular political culture determines the character of the legal system in general and of expert witnessing in particular. For example, in the civil-law systems of the European continent, law is perceived as the direct arm of the centralized nation-state. Civil-law systems are inquisitorial. The authority for fact-finding and decision making is concentrated in the judge’s hands; consequently, he is the one who usually recruits the expert and has him directly under his supervision. Paradoxically, experience has demonstrated that in civil-law systems the supervision of the investigating judge over the expert is inefficient, due to the judge’s almost blind confidence in the expert’s professional capacities. As a result, the expert amasses considerable power and becomes the actual decider of facts. By contrast, Anglo-American political culture is more liberal and less centralistic than its Western European counterpart. Political power is more diffused to the public sphere, and political authority is pushed down from governmental bodies to civil organizations. In common-law systems, fact-finding is devolved from state officials to local elements such as attorneys and jurors. Thus, expert witnesses are usually not operated directly by the courts; they are most often hired by the litigants and serve as their partisan witnesses. On the one hand, the expert in common-law systems, being a partisan witness, is less objective than his civil-law counterpart; on the other, expert witnesses in common-law systems are more effectively checked, since the court has to approve that their kind of knowledge is useful or generally recognized in their discipline; further, they are cross-examined by the counsel of the opposing party. It seems that premodern political culture in Islamic states was closer to the diffusive political model than to the centralist one. Taking the Ottoman state as the latest example, the sultans shared their power with the ulama, the exclusive interpreters of the divine law, and with other holders of political power such as provincial governors, army officers, and local notables. Moreover, autonomous and semiautonomous social groups and organizations such as Sufi orders, organizations of urban quarters, and professional guilds possessed power, and their autonomy was tolerated by the rulers as long as it did not negatively affect public order.4 The Ottoman rulers’ lack of pretension to directly control every aspect of social activity is demonstrated by the fact

Islamic Expert Witnessing in Comparative Perspective

193

that they were not the sole founders or supporters of public welfare institutions. For example, waqf institutions, which were the main supporters of the social order, were often founded by private individuals and not necessarily by state functionaries. Even large sultanic waqfs, founded for charitable purposes, functioned under the continuous supervision of the local community, headed by the ulama.5 Also, the education and acculturation of the masses were divested in the hands of the ulama. In such a political culture, it may be expected by way of analogy that the legal system was relatively independent from direct state control,6 and that expert witnesses did not function as a direct arm of the judge but as external and independent informants who submitted a professional opinion at the judge’s request or served as partisan witnesses. The findings of this study prove that this expectation is generally well founded. In premodern Islamic expert witnessing, fact-finding devolved down to the level of local knowledge by the use of craftsmen and artisans (in the Ottoman period, heads and members of guilds), who were summoned on a case-by-case basis by the qadi or by the litigants as their partisan witnesses. With the adoption of the European bureaucratic and centralist state as a model for the nation-states founded in the Middle East during the first half of the twentieth century, it may be argued that political culture in Islamic societies has gone through a radical transformation. The intrusive character of Middle Eastern nation-states, their drive to closely inspect each and every dimension of their citizens’ lives, and the relative weakness of civil societies have had direct implications for the character of legal systems in the modern Middle East, which subscribe to the civil-law model. Moreover, it seems that Middle Eastern civil-law systems tend to be more centralist than their European counterparts, as is attested by the comparison in chapter 4 between the Egyptian system and the French one, which has served as its main source of inspiration. As a result, current Egyptian expert witnessing subscribes to the civil-law model, functions in a similar way, and struggles with similar criticisms as to its practical deficiencies. Although the adoption of a Western model of expert witnessing signifies a clear discontinuity with premodern fiqh discourse on expert witnesses, judicial practice does not seem to have found it too difficult to assimilate this change, because the resort to expert witnesses has been a well-established practice in Islamic legal systems for many centuries. The Western model of expert witnessing does not contradict any principle of the sharia and therefore does not cause resistance among the religious establishment. I hope that this study has demonstrated that researching the evidentiary and procedural aspects of legal systems in action is a fruitful enterprise, con-

194

Conclusion

tributing to a deeper understanding of judicial practice and the inner logic of a particular legal system, as well as being informative for studying cultural and societal norms in general and judicial culture in particular. I also hope that students of Islamic legal systems will add their insights in this thematic direction in the coming years.

appendix

List of Court Decisions

D No. Reference

Court Name, Location

Date

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Supreme Guardian Court Court of Cassation (criminal section) Court of Cassation (criminal section) Alexandria Indigenous Court (FI) Cairo Guardian Court Court of Cassation (criminal section) Court of Cassation (criminal section) Alexandria Indigenous Court (FI) Cairo Indigenous Court (FI) Al-Mans.u¯ra Court of Appeal Court of Cassation Court of Cassation Court of Cassation Court of Cassation Court of Cassation Court of Cassation Sharı¯ca Court, Idfu¯ Sharı¯ca Court, Minya¯ Sharı¯ca Court, Mis.r Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Jirja¯ Sharı¯ca Court, Banı¯ Suwayf Sharı¯ca Court, Khalı¯fa

14/6/1925 28/5/1931 9/11/1931 21/10/1935 7/9/1935 6/2/1939 29/1/1940 26/1/1942 6/2/1943 3/3/1962 17/1/1962 20/3/1963 11/2/1970 23/5/1973 25/4/1973 29/1/1975 5/1/1903 28/6/1904 24/7/1906 15/1/1930 26/5/1928 2/6/1930 14/11/1931

M 6:16/16 M 12:396/202 M 12:482/236 M 16:406/181 M17:470/216 M 19:1205/471 M 20:1083/461 M 22:755/256 M 23:579/240 M 42:611/420 M 43:187/102 M 44:409/299 M 52:99/76 M 58:37/25 M 58:41/28 M 60:27/9 AS 2:90 AS 3:127 AS 5:195 MS 1:417/119 MS 1:420/122 MS 2:173/15 MS 3:896/283

196

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65

Appendix

MS 4:761/237 MS 4:765/240 MS 5:574/157 MS 5:901/244 MS 5:904/246 MS 6:144/37 MS 6:410/120 MS 6:773/215 MS 6:968/270 MS 7:196/55 MS 7:464/120 MS 7:859/236 MS 8 (4–6):195/46 MS 8 (7–10):247/47 MS 9:348/70 MS 10:253/66 MS 11 (6–7):87/128 MS 12 (4–6):77/75 MS 15:61/7 MS 17:382/58 MS 18:162/37 MS 20:193/40 MS 24:201/31 MS 24:412/80 M 8:314/234 M 9:996/539 M 10:568/283 M 10:570/284 M 11:150/91 M 11:828/430 M 12:440/220 M 13:596/303 M 13:1275/645 M 14:17/11 M 15:550/260 M 15:572/273 M 16:983/452 M 17:546/265 M 18:155/74 M 19:1424/532 M 20:304/111 M 20:686/239

Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Sayyida Zaynab Sharı¯ca Court, Shibı¯n al-Qana¯t.ir Sharı¯ca Court, Qina¯ Sharı¯ca Court, Port Said Sharı¯ca Court, Kom H.ama¯da Sharı¯ca Court, Port Said Sharı¯ca Court, Abu¯ Qurqa¯s. Sharı¯ca Court, T.anta¯ Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Karmu¯z Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Mı¯t Ghamr Sharı¯ca Court, Kom Ombo Sharı¯ca Court, Mis.r (FI) Sharı¯ca Court, Banı¯ Suwayf (FI) Sharı¯ca Court, Damanhu¯r (FI) Sharı¯ca Court, Fayyu¯m Sharı¯ca Court, Mis.r (FI) Supreme Sharı¯ca Court Sharı¯ca Court, Sayyida Zaynab Cairo Indigenous Appeal Court Cairo Indigenous Court (FI) Alexandria Indigenous Court (FI) Alexandria Indigenous Court (FI) Indigenous Court of Appeal Indigenous Court of Appeal Indigenous Court of Appeal Baba¯ Court Cairo Court (FI) Indigenous Court of Appeal Indigenous Court of Appeal Indigenous Court of Appeal Bandar al-Mans.u¯ra Court Indigenous Court of Appeal Indigenous Court of Appeal Indigenous Court of Appeal Cairo Indigenous Court of Appeal Al-Jı¯za Indigenous Court

10/8/1933 12/10/1931 13/3/1933 17/2/1932 11/4/1932 14/1/1932 30/11/1932 15/2/1934 10/10/1933 28/2/1935 3/4/1935 30/1/1936 30/5/1935 3/12/1936 10/3/1938 20/5/1934 28/5/1939 9/2/1941 28/10/1941 15/11/1941 17/6/1945 9/5/1948 27/5/1950 21/2/1949 21/11/1927 29/5/1927 16/11/1929 16/11/1929 28/5/1930 31/12/1930 6/5/1931 21/6/1932 18/1/1933 7/5/1933 14/1/1934 17/6/1934 3/6/1936 7/12/1936 4/5/1937 25/4/1939 20/12/1938 23/5/1939

List of Court Decisions

66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83

M 26:479/187 M 28:578/179 M 29:1089/496 M 30:992/444 M 31:964/276 M 33:339/209 M 34:648/285 M 36:888/433 M 43 [or 46]:592/154 M 44:76/61 M 55 No. 9–10:90/64 M 57 No. 1–2:57/36 MS 1:284/77 MS 5:231/68 MS 5:453/119 MS 7:139/33 MS 7:481/127 MS 8: 101/21

Court of Cassation Cairo Indigenous Court of Appeal Court of Cassation Court of Cassation Court of Cassation Minya¯ al-Qamh. Court Court of Cassation Court of Cassation Court of Cassation T.ant.a¯ Court of Appeal Court of Cassation Court of Cassation Sharı¯a Supreme Court Sharı¯a Supreme Court Sharı¯a Supreme Court Cairo Sharı¯a Court (FI) Karmu¯z Sharı¯a Court Cairo Sharı¯a Court (FI)

197

30/12/1943 19/10/1947 13/1/1949 12/1/1950 23/11/1950 19/4/1951 8/5/1952 21/4/1955 26/3/1946 30/1/1962 2/5/1972 6/2/1973 5/9/1927 4/12/1933 26/2/1934 27/8/1934 29/5/1934 17/11/1935

s o u rc e s a n d a b b r ev i at i o n s M = Al-Muh.a¯ma¯, vols. 1–74 (Cairo,1920–94). “12:396/202” (as in D-2) stands for vol. 12, p. 396, case number 202. AS = Majallat al-Ah.ka¯m al-Sharciyya, vols. 1–13 (Cairo, 1902–23). “2:90” (as in D-17) stands for vol. 2, p. 90. MS = Al-Muh.a¯ma¯t al-Sharciyya, vols. 1–26 (Cairo, 1929–55). “8 (4–6):195/46” (as in D-36) stands for vol. 8, sections 4–6, p. 195, case number 46. (FI) = [Court of ] First Instance.

notes

Introduction 1. Regarding use of the term Islamic in conjunction with law or legal system, many scholars have used the terms sharı¯ a and Islamic law interchangeably, implying that any non-sharı¯ a law applied by Muslims is not “Islamic.” I find it more useful to use distinctive terms for the different types of material law that have been applied by Muslims throughout history. The term sharı¯ a—the divinely ordained way of conduct—is not limited to law and refers also to morality. It is therefore broader than the term fiqh—i.e., the law developed by the legal scholars ( fuqaha¯) within the framework of the law schools (madha¯hib). Since in this study I am referring to Islamic law, I use the term fiqh. Correspondingly, I use maz.a¯lim law for the rules applied by the courts of grievance, qa¯nu¯n law for the collections of Ottoman sultanic decrees, Arab tribal law, and so on. Various Shiite laws are not included in this study. Finally, when I use the terms Muslim societies or Muslim states, I mean that the religious affiliation of the majority of the population is Islamic. 2. Taylor 1996, 183; Sahar 2003, 23–24, 52–53. 3. On this theory and its critic see Mautner 1998, 547–61; Moore 1978, 3–4. 4. Mautner 1998, 545–46. 5. Moore 1978, 4, 6. 6. Masud, Peters, and Powers 2006, 4–5. 7. Rosen 1989, 17, 55, respectively. See also Rosen 2000, 41. 8. Masud, Peters, and Powers 2006, 5–6, 29–30. 9. Layish 1975, 103, 106, 111, 333; Antoun 1990, 42–45, 51–52. 10. Rosen 1989, 66. 11. Wadghiri (2001, 32) writes that during the French protectorate in Morocco (1912–56), legal expertise functioned purely according to customary practices.

200

Notes to Pages 4–12

12. Geertz 1983, 191–94. Rosen (1989, 30–31) believes that when the case calls for a continuation of the relationship between the litigants, the qadi prefers to use traditional measures, probably local experts; whereas when it is impossible to rehabilitate the relationship, he opts for modern medical opinion by external experts. 13. Geertz 1983, 194. 14. Rosen 2000, 41–42. 15. Rosen 1989, 8, 26–27, 48; Rosen 2000, 8, 29–30, 89, 106. 16. Tyan 1960, 1:236–61. 17. Haykel 2002, 129. 18. Schacht 1964, 192–93. See also Coulson 1964, 125. 19. Johansen 2002, 173–75, 177, 188–89. See also Zaydan 1994, 5:111–12. Scholars often mistakenly consider a physical sign as circumstantial evidence. A physical sign, such as a spot of blood, a fingerprint, or a crack in a wall, is a probative indicator. Only after an expert draws conclusions from such an indicator used in a judicial context does it become a piece of circumstantial evidence. 20. Tyan 1955, 236–42. 21. Rosen 2000, 8, 29. 22. Encyclopedia of Islam, 2nd ed., s.v. “Mah.kama” (H. Inalcik). 23. Jennings 1978, 143–45. Ergene (2003, 25–26, 28–30, 149) defines shuhu¯d al-h.a¯l as “official court witnesses.” 24. EI2, s.v. “Sha¯hid,” 207–8 (R. Peters). 25. Masud, Peters, and Powers 2006. 26. EI2, s.v. “Bayyina” (R. Brunschvig). For a more recent mention of this scholarly void, see Vogel 2000, 161–62. 27. Sahar 2003, 21–22; Faur 1999, 116–19; Taylor 1996, 184ff.; Hodgkinson 1990, 6–8. 28. On the qas.s.a¯s and the naz.z.a¯r, see chapter 2 of the present text. These laws also recognize footprints, spotted and interpreted by trackers, as evidence. See Stewart 2006, 265, and personal correspondence (17 May 2006). 29. Powers 2002, 112n53, referring to Van Staevel 2001. 30. Taylor 1996, 182–83. 31. Rosen 2000, chap. 3, especially 46, 48, 50, 56; reference to Jewish law is on p. 62. According to Geertz (1983, 195), while Western legal tradition seeks to separate fact from law and to develop procedures that will prevent the one from contaminating the other, Islamic law strives to link fact to law and to develop procedures for deepening the attachment between the two. Moreover, according to Rosen (2000, 30), “Unlike many complex legal systems that propel investigation and decision-making up to the higher reaches of the legal order, in Morocco the process of adjudication continually pushes matters down and away from the qadi—down to the level where local custom and circumstance can become most significant.” 32. Geertz 1983, 171–72. 33. Golan 2004, 2.

Notes to Pages 13–17

201

34. Ibid., 6. 35. Ibid., 38. 36. Ibid., chap. 1, where Golan characterizes the Wells Harbor case (1872) as a turning point in the nature of expert witnessing. When this case was adjudicated, the “opinion doctrine” in English law held that expert witnesses were prohibited from using inferences when the subject matter was susceptible to factual statements (ibid., 38). The innovation of Judge Mansfield in this trial was that the opinion of natural scientists was an exception to the opinion doctrine. Unwilling to distinguish one science from another, Mansfield ruled that if the proposed witness was known as an expert in the matter before the court, his opinion, based on facts, was proper evidence (ibid., 44–45). 37. Taylor 1996, 191n85. 38. See Golan 2004, chap. 2. 39. Ibid., chap. 3; Coady 1992, chap. 16; Weinstock 1986, 24–37. With respect to the judicial acceptability of modern scientific evidence, the guiding rule in the U.S. legal system since 1923 has been the Frye dictum according to which it is the role of the judge to determine whether a scientific position presented to the court is, generally speaking, the accepted position of the relevant scientific community. The Daubert precedent of 1993, which replaced the Frye dictum, attached four additional criteria to the one prescribed by Frye: testability, peer review, error rate, and standardization. Generally speaking, following the Daubert precedent, the court is required to investigate the scientist’s mode of thinking and the way in which he reached his conclusions. When appearing before the court, the scientist must convince the judge that the general theory he is relying on may be verified by means acceptable to the court, and that this theory is capable of predicting. See Stoler and Plotzki 2001, 158; Golan 2004, 247–64. According to Faur (1999, 114–15), the Daubert precedent means that the role of the court is not to achieve a cosmic understanding of the sciences but to be assisted by scientific knowledge to the extent required for solving the judicial dispute under review. 40. Golan 2004, 58. 41. Ibid., 61. 42. Weinstock 1986, 16. 43. Ibid., 37–44. On the German legal system, see Timmerbeil 2003, esp. 173–81. 44. Brown 1997, chap. 2. 45. Ibid., 216. See also ibid., chaps. 2 and 7. 46. Medicine was important, for example, for deciding whether a Muslim was entitled to exemption from his religious duties due to his malady and for ruling on the severity of wounds in assault cases. Arithmetic was essential for the division of inherited estates; and mathematics, geometry, trigonometry, and astronomy were essential for determining the direction and times of prayer. See Huff 1993, 68, 70, 84, 86–87. 47. Sabra 1987, 240. 48. Faur 1999, 113, 122–25. A different position, viewing the sciences from a theo-

202

Notes to Pages 17–23

logical perspective, was developed by Ashkenazi Jewish scholars in Christian Europe, due to particular historical and ideological considerations. See ibid., 130–33. 49. Rabkin (1992, 62) argues that the perception of religion as something distinguishable from the rest of human activity emerged from Christian theology and was assimilated by Judaism and Islam only in the nineteenth century. As for premodern Jewish and Islamic cultures, the border between science and religion was often blurred because both cultures have traditionally dealt with aspects of life that lie outside the scope of religion in its Christian definition. With regard to Judaism and Islam, Rabkin suggests substituting the terms religion and science with revealed knowledge and discovered knowledge, respectively. 50. See, for example, Huff 1993, 52–53, 88–90, 149–51. This theory of decline is qualified by others. For example, Ihsanoglu (1992, esp. 1–2, 24) argues that the dating of decline to the twelfth century might be true with regard to the Arabic-speaking central lands of Islam but not with regard to Turkish- and Persian-speaking areas. “Ottoman science,” he argues, “flourished until it declined in the seventeenth century, a period in which the Ottomans started to import technologies from Europe.” 51. See, for example, Ihsanoglu 1992, 38–41, on the multichanneled contacts that the Ottomans had with European medicine, starting in the fourteenth and fifteenth centuries. 52. Kupferschmidt 2004, 6, 14. I thank Prof. Kupferschmidt for allowing me to cite his paper. 53. Rabkin 1992. Ihsanoglu (2004, 251) argues that in the nineteenth century, traditional Ottoman scholars did not object to the new sciences, did not see any contradiction between science and religion, and were involved in the integration of modern technologies. The idea of confrontation between science and Islam emerged subsequent to the appearance of a new type of Ottoman intellectual—one who adhered to positivism and biological materialism and whose attitude toward religion was negative. 54. Kupferschmidt 2004, 9–11; Heyd 1961, 70–73. 55. Kupferschmidt 2004, 10; Ayalon 1995, 166–69; Heyd 1961, 66–67, 69, 73. 56. See, for example, the legal opinion of Rashid Rida on the length of pregnancy, mentioned in chapter 5 of the present text, and the attitudes of Jewish scholars toward the probative value of blood-group tests in Westreich 1996, 444–46. 57. Rosen 2000, 91. 58. Mir-Hosseini 2000, 10–13. 59. Ibid., 199. 60. Ibid., 14–15, 192, 198, 200. 61. Cotterrell 1992, 49. 62. Coulson 1964, 81–82. 63. Hallaq 1994. 64. Powers 2002. 65. Peirce 2003, 100–106. 66. Zeevi 1998, 53–54.

Notes to Pages 27–29

203

chapter 1 1. Brunschvig 1976b, 201. 2. Al-Jarrahi 1938, 1:134; Ibn al-Dayba 1963, 19. On Harith b. Kalada, who studied medicine in Persia, see Zirikli 1980, 2:157. According to Ikhwan al-Safa (1928, second treatise, 53), one should suspect the professional advice of a person who practices a craft that demands specific knowledge (s.ina¯a ilmiyya) without being adequately trained for practicing this craft. In the eleventh treatise, 363–64, the same hadith is cited in the context of the call to pursue knowledge (t.alab al-ilm) and promote scientific investigation. 3. Cf. Golan 2004, 38, who writes regarding premodern expert witnesses: “These expert opinions were regarded as being based on empirical observations, readily traceable to the particular training and experience of the expert pronouncing them.” 4. Ibn Taymiyya n.d., 29:492–93. 5. Sarakhsi 1993a, 13:110 (referring to physical defects known only to physicians), 9:73 (referring to a case in which a female adulterer who argues that she is pregnant has to be inspected by women in order to verify her pregnancy). The same Quranic verse is cited in Ikhwan al-Safa (1928, the eleventh treatise, 363–64) in the context of a call to pursue knowledge (t.alab al-ilm) and promote scientific investigation. See also Ibrahim 1985, 264. 6. Thaalibi 1997, 2:282; Wahidi 1995, 2:711; Zahili 1994, 273; Tabrisi 1985, 1:805; Tabatabai 1991, 12:256–58 (on p. 258 he refers to the duty of the ignorant to consult experts). 7. Amri 1978, 121–22. On these two functionaries, see below. 8. Ajila 2002, 2. 9. Ansari 1993, 7:215. See also ibid., 7:43, referring to Q. 25:59, and Amawi 2001, 5:182; Tabatabai 1991: 15:233, referring to the same verse. 10. Amawi 2001, 5:183, referring to Q. 25:59. In Tabatabai 1991, 15:233, referring to the same verse, additional interpretations are suggested for the term khabı¯r—the angel Gabriel or the Prophet. 11. This hadith, usually in the transmission of Abu Hurayra, appears in the collections of Abu Daud, al-Tirmidhi, Ibn Majah, and Ibn Hanbal. According to the narrative that appears in the compilation of al-Tirmidhi (al-Zuhd an Rasu¯l Alla¯h — Ma¯ Ja¯a fı¯ Maı¯shat As.h.a¯b al-Nabiyy), the Prophet wished to reward Abu Haytham b. al-Tayyiha¯n al-Ansari, who had generously fed the Prophet and a few of the Companions, by gifting him a slave. He told Abu al-Haytham to choose one war prisoner from two that he presented to him, but Abu al-Haytham asked the Prophet to choose one for him. Then the Prophet said, “The adviser is reliable” and chose one of them, explaining that he had previously seen him (the prisoner) praying (which meant that he was a good person who would serve Abu al-Haytham well). The interpreters of the hadith explain that one who is consulted about issues should not betray the one who asks his advice by concealing from him options that will bring

204

Notes to Pages 29–31

him welfare (al-mustasha¯r- alladhı¯ t.uliba minhu al-mashwara wal-ray; mutaman amı¯n fı¯ma¯ yusalu min al-umu¯r fa-la¯ yanbaghı¯ an yakhu¯n al-mustashı¯r bi-kitma¯n mas.lah.atihi). See Mawsu¯at al-H . adı¯th al-Sharı¯f in http://hadith.al-islam.com. Search words: al-mustasha¯r mutaman. 12. Wadghiri 2001, 36–38; al-Razi, Mafa¯tih. al-Ghayb, al-Tafsı¯r al-Kabı¯r, on Q. 12:25, at www.altafsir.com. 13. Wadghiri 2001, 42; Ibn al-Rami 1999, 35–36. This tradition appears in Ibn Sad, al-T.abaqa¯t al-Kubra¯, and in Shams al-Dı¯n al-Sha¯mı¯, Subul al-Huda¯ wal-Rasha¯d fı¯ Sı¯rat Khayr al-Iba¯d. See www.alwaraq.com. Search words: yalı¯him al-qumut.. 14. Ghanem 1987, 51. 15. Yusuf 1987, 392. 16. Ibn Abidin 1966, 5:17. 17. The purpose of this notification is to enable the defendant to refute the integrity of the witnesses. 18. Tulaytuli 1994, 184. 19. Qarafi 2001, 1:76; Brunschvig (1976b, 205) refers to hadith transmission and legal testimony being ideologically identical, as reflected in the formula “reporting traditions is testimony” (al-riwa¯ya shaha¯da). He mentions, however, that the jurists have made a technical distinction between the two. 20. For the indicators of formal testimony, a term covering legal and quasi-legal testimony, see Coady 1992, 32–33. 21. In this comparison I rely mainly on Qarafi (2001, 1:74–78) and Ibn Qayyim (1972, 1:6). 22. The translation of the term adl as “upright” fails to express the full meaning of the Arabic word in its legal context. Someone who is adl is not only a just, fair, and upright person, but also a person of good reputation who has an honorable record. 23. This is in civil and criminal cases. In adultery (zina¯) cases, four witnesses are required. I do not cover here the exceptional opinion that accepts as sufficient evidence the testimony of one witness accompanied by the plaintiff ’s oath. 24. Sarakhsi 1993a, 16:89. The requirement of two witnesses is the position of Roman law (Latin: testis unis, testis nullus) and of the laws affected by it, such as canon law, and British and Scottish law. In modern British law, however, uncorroborated testimony is acceptable as evidence. See Coady 1992, 34. 25. The ideal type of tradition, h.adı¯th mutawa¯tir, is a hadith that has been transmitted through multiple channels of transmission and in which each level of transmission (t.abaqa or daraja) includes several transmitters. Epistemologically, h.adı¯th mutawa¯tir produces certain (yaqı¯nı¯ ) knowledge. To the contrary, a non-mutawa¯tir tradition (h.adı¯th ah.a¯dı¯, pl. al-ah.a¯d; khabar al-wa¯h.id; this category includes a hadith going back to a single authority, although this is not the standard usage) produces only probable knowledge (z.ann). Muslim jurists nevertheless permit reliance on h.adı¯th al-ah.a¯d as a source for law, conditional upon the transmitter being a free

Notes to Pages 31–37

205

and honest Muslim. See Hallaq 1997, 60–65; EI2, s.v. “khabar,” “khabar al-wa¯h.id,” and “h.adı¯th.” 26. In monetary suits, two female witnesses may replace one of the males (see below). 27. Ibn Qayyim n.d., 225. 28. The two remaining testimonies are on the delivery of a present and on requesting permission to enter a stranger’s house, and the testimony of a single female on transmitting the betrothal present from the bride to the groom. On the ten cases, see Qarafi 2001, 1:78–87. 29. Al-Mawsu¯a al-Fiqhiyya, s.v. “Khabar,” 19:13–17. 30. Ibn Rushd 1994, 2:146–47; Mawardi 1994, 3:412–13; Ibn Qudama 1990, 4:417–18. 31. Ibn Rushd 1994, 2:145, 147; Mawardi 1994, 3:411–12; Ibn Qudama 1990, 4:416– 18; Tarabulsi 1973, 94; Ibn Majuz 1984, 214–15. 32. Qarafi 2001, 1:83 and n. 2. Ibn Majuz (1984, 214) says that according to another transmission, Shafii required two witnesses; but Nawawi is quoted by Ibn Majuz as claiming that the first transmission is the correct one (al-as.ah.h.). 33. The Maliki Qarafi (2001, 1:78) argues that it is legitimate to refer to the report on the beginning of Ramadan both as a shaha¯da and as a khabar and to prefer one of them on the basis of a particular hadith or analogy. By contrast, the Maliki Ibn al-Shatt (d. 1323) argues that a testimony on the beginning of Ramadan is neither a shaha¯da nor a khabar but rather a report on the existence of a condition for the application of a legal rule (wuju¯d sabab min asba¯b al-ah.ka¯m al-shariyya). See Qarafi 2001, 1:78n2. 34. Sarakhsi 1993b, 1:333. 35. Ibn Rushd 1994, 2:145–47. 36. . . . wa-liannahu khabar an waqt al-farı¯d.a fı¯ma¯ t.arı¯quhu al-musha¯hada, fa-yuqbal min wa¯h.id kal-khabar bi-dukhu¯l waqt al-s.ala¯t, wa-liannahu khabar dı¯nı¯ yashtariku fı¯hı¯ al-mukhbir wal-mukhbar, fa-yuqbal min wa¯h.id adl kal-riwa¯ya. See Ibn Qudama 1990, 4:418. The Iraqi jurist Abu Thawr (d. 854) used a similar phrasing: “Since it is a report with respect to which the reporter and the recipient are equal, it is similar to transmission [of hadith] and to reporting on matters of worship” (wa-liannahu khabar yastawı¯ fı¯hi al-mukhbir wa1 -mukhbar, as.hbah.a al-riwa¯ya wa-akhba¯r al-diya¯na¯t). See ibid., 4:419. 37. Sarakhsi 1993b, 1:335. 38. Mawardi 1994, 3:411, 413; Sarakhsi 1993a, 3:139. 39. Ibid. 40. Abu Hanifa and Malik, however, accept that each of the two secondary witnesses may testify on behalf of the two primary witnesses, which means that a total of two secondary witnesses suffices. 41. Sarakhsi 1993a, 16:137–39; Mawardi 1994, 17:231–32; Ibn Qudama 1994, 9:153– 54; Schacht 1964, 104; Mawsua, s.v. “Shaha¯da,” 26:238–39.

206

Notes to Pages 37–41

42. Following the secret screening, a procedure called public screening may take place: the qadi summons the muzakkı¯ to deliver his testimony in an open session of the court. 43. Sarakhsi 1993b, 1:335; Mawardi 1994, 16:187–89; Ibn Qudama 1994, 9:50; Mawsua, s.v. “Tazkiya,” 11:238–51; EI2, s.v. “adl.” 44. Brunschvig 1976b, 2:214–15: A mesure que l’administration de la justice s’organise et croît en complexité, le rôle des experts augmente et tend à se preciser. Le droit musulman les regarde théoriquement comme des témoins; ils sont donc soumis en principe aux règles qui régissent le témoignage; mais les besoins de la procédure ont suscité à leur égard des dérogations sur lesquelles la doctrine conservatrice ne paraît pas toujours empressée à mettre l’accent: on les voit commis d’office par le cadi, on tient compte de leur avis alors même que celui-ci ne constitue pas une affirmation péremptoire, et il est enfin des auteurs pour accueillir comme suffisant le rapport d’un expert unique au lieu du témoignage double ordinairement exigé. 45. Johansen 2002, 175, 188–89. He refers to two opinions of Ibn Qayyim, one relating to physiognomy and the second to testing the husband’s sperm because of his wife’s allegation that he is impotent. 46. Fadel 1997, 195. One wonders whether Fadel reads modern perceptions of expert testimony into premodern fiqh texts. See, for example, the adage of the famous U.S. judge Learned Hand on the character of expert testimony (quoted in Sahar 2003, 23–24): “The expert is in effect not telling of facts at all, but of uniform physical rules, natural laws, or general principles, which the jury must apply to the facts.” 47. Fadel 1997, 194–96. 48. See al-Bakr 1988, 722. 49. On this debate, see Sarakhsi 1993a, 16:89–90; Mawardi 1994, 16:176–77; Ibn Qudama 1994, 9:72–73; Mawsua, s.v. “Tarjama,” 11:166–75; al-Bakr 1988, 722–23. According to Tyan (1955, 1:256), the preponderant opinion has always been that one translator is sufficient. 50. Ibn Majuz (1984, 213) argues that the transmission according to which Ibn Hanbal is satisfied with one translator is corroborated by the traditionalist Bukhari. 51. On the two transmissions, see ibid. and the authorities he mentions there. 52. Qarafi 2001, 1:80 and n. 4. 53. Tarabulsi 1973, 94. 54. According to Ibn Majuz (1984, 213), the preponderant Hanbali opinion is based on the choice (ikhtiya¯r) of al-Khiraqi. 55. Sarakhsi 1993a, 13:110. According to Tarabulsi (1973, 94), a few late Hanafis hold that if a qadi orders the inspection of the defect, a report by one physician in support of the buyer is sufficient for annulling the sale. 56. Establishing the existence of the defect is a necessary preliminary condition for submitting a request to annul the sale.

Notes to Pages 41–43

207

57. Tarabulsi 1973, 94. 58. Ibn Abidin 1966, 5:31. 59. According to Qarafi (2001, 1:85–86), this is the opinion of Malik, Ibn Rushd the grandfather (d. 1126), and Qarafi himself. This is also the opinion of al-Ba¯jı¯ (d. 1081). See Van Staevel 2001, 655n107. 60. This transmission appears in the work al-Atabiyya by Muhammad al-Atabi (d. 868 in Cordova). See Ibn al-Rami 1999, 113. 61. Tulaytuli 1994, 184–85. 62. See also Ibn Majuz (1984, 212), quoting al-Ta¯wudı¯ in his commentary on alTuh.fa. This was also the opinion of the Tunisian jurist and qadi Ibn Abd al-Rafi (d. ca. 1332); see Van Staevel 2001, 656. 63. Ibn Rushd 2000, 2:219 and Ibn Rushd 1987, 2:1037–38, respectively. 64. Ibn al-Rami 1999, 113. 65. For the central place that this jurist occupies in Fadel’s theory, see section 3.1 in the present text. 66. Since I have not been able to consult Ibn Hisham’s manuscript, I base myself on a quotation from that manuscript which appears in Van Staevel 2001, 655. The full citation is: wa-idha¯ amara al-qa¯d.¯ı rajulan min ahl al-marifa an yanz.ura ila¯ al-jurh. fa-yanz.uru ilayhi wa-akhbarahu bi-qadrihi akhadha bi-qawlihi wah.dahu. Wa-kadha¯lika alt.abı¯b wa-in lam yakun Musliman li-annahu fı¯ jihat al-ilm la¯ min ba¯b al-shaha¯da. This was also the opinion of Ibn Abd al-Rafi; see ibid., 656. 67. The full citation is: wa-idha¯ baatha al-h.a¯kim bil-abd al-maı¯b aw al-ama aw billadhı¯ fı¯hi al-ayb ila¯ man yathiqu bihi min ahl al-bas.ar wa1 -naz.ar yashhadu¯ fı¯hi fa-shahadu¯ indahu falam yakun fı¯him [fı¯ ahl al-bas.ar] idha¯r li-annahum lam yusalu¯ al-shaha¯da wa-innama¯ al-qa¯d.¯ı istakhbarahum fa-akhbaru¯hu; wal-idha¯r innama¯ huwa ala¯ al-z.unu¯n wal-tuhma lil-shuhu¯d; wabi-ha¯dha¯ ja¯a al-amal inda al-shuyukh. See ibid. Note that although Ibn Hisham argues that the experts are informers rather than witnesses, he uses the phrase “they testified in front of him” ( fa-shahadu¯ indahu). 68. See the detailed discussion in chapter 5 of the present text. 69. Suyuti 1959, 392. Elsewhere (ibid., 393), Suyuti discusses a medical opinion on the benefits of marriage for lunatics. He quotes the Damascene Shafii Salah alDin al-Alai (d. 1359 in Jerusalem) to the effect that the opinion of one expert is sufficient for that purpose, because such opinion is categorized as a report (jara¯ majra¯ al-akhba¯r). 70. Ibn Qudama 1990, 14:273; Ibn Qayyim n.d., 96–97; Husari 1979, 485–86; Yusuf 1987, 393–94. See also Mawsua, s.v. “Shaha¯da,” 26:229–30, according to which the Malikis hold that one physician is sufficient only if he is sent by the ruler.

208

Notes to Pages 43–48

71. Ibn Abidin 1966, 5:17. 72. Mawsua, s.v. “Khibra,” 19:23. 73. Sarakhsi 1993a, 9:178–79. 74. The Malikis discuss a similar scenario, in which the qadi or the guardian sells the property of an orphan or of a minor ward. The plaintiff, supported by an expert opinion, argues that the sale price is below the market price; the defendant qadi or guardian, supported by another expert opinion, argues that the sale price is proper. The qadi should act on the opinion according to which the price is proper. See Ibn al-Rami 1999, 112. 75. Ibn Abidin 1966, 6:22. See also the opinion of Tarabulsi (1973, 94) to the effect that one expert is sufficient for assessing the proper amount of blood money and the value of dilapidated merchandise. 76. Qarafi 2001, 1:80. This is also the opinion of the Malikis Ibn Farhun (from Medina; d. 1397) and Muhammad b. Abd Allah al-Kharashi (Egyptian; d. 1690). See Mawsua, s.v. “Khibra,” 19:22–23. 77. Qarafi 2001, 80–81. 78. Mawsua, s.v. “Khirs.,” 19:99–104; Shafii 1993, 2:44–45. 79. Qarafi 2001, 81. 80. Probably Muhammad b. Abd Alla¯h, who was Shaykh al-Azhar and died in 1690. 81. Mawsua, s.v. “Khibra,” 19:25. 82. Tulaytuli 1994, 319–20. See (ibid.) a document of division by lot casting (qismat qura) with similar patterns. 83. Wadghiri 2001, 49. 84. Nawawi 1992, 8:181–82. See also Qarafi 2001, 1:81. 85. On these two, see chapter 2 of the present text. 86. Qurtubi 1995, 5:237. 87. Mawardi 1994, 16:246–47. 88. Ibn Qayyim n.d., 17, 225. For further details on physiognomy, see chapter 6 of the present text. 89. Mawardi 1994, 17:386–88. 90. Ibid., 17:391–92. 91. Ibn Majuz (1984, 223), citing the opinions of Malik’s prominent student, Abd al-Rahman Ibn al-Qa¯sim (d. 806 in Cairo), and other Malikis. 92. Qarafi 2001, 1:79–80. 93. On the position that he is a judge, see Mawsua, s.v. “Khibra,” 19:22. 94. Ibn Qayyim n.d., 226–28. 95. “O believers, when you contract a debt one upon another for a stated term, write it down. . . . And call in to witness two witnesses, men; or, if they be not men, then one man and two women, such witnesses as you approve of, lest one of the two [women] err, then the other will remind her.” 96. For primary legal sources that discuss the inter- and intraschool controver-

Notes to Pages 49–51

209

sies on this topic, see Ibn Qudama 1990, 14:126–30; Ibn Rushd 2000, 2:559; Asyuti 1955, 2:438; Ibn Qayyim n.d., 90; Zaydan 1994, 5:340–41, 441. For secondary sources, see Alwani 1996, 190–92. Fadel (1997, 194) places the legal issues in which the testimony of women is accepted along a “private-public” continuum. Women’s testimony is acceptable in private disputes (financial) but not in disputes that require public recognition (criminal, penal, marriage, and divorce). He (ibid., 197–99) also refers to the Hanbalis Ibn Taymiyya and his student Ibn Qayyim al-Jawziyya, who argue that a judge has to be allowed to rely on the testimony of men or women, so long as the evidence is credible, thereby rejecting the standard two-women-equal-one-man rule. The position of the Zahiri Ibn Hazm (1984, 8:476–77, 486–88) is totally different from those of the orthodox schools. He permits the replacement of one male by two females in all fields of law (including h.udu¯d). He also permits the testimony of one reliable male or female on suckling. In Jewish law, the basic rule is that a female is entirely precluded from witnessing, according to the accepted interpretation of the Bible (Holtzer 1971, 1:2–3). According to the Talmud, the grounds for this preclusion are twofold: (1) preserving a woman’s honor requires precluding her from being contaminated by the “filth” of the outer world and encourages her functioning within the house; (2) women are frivolous and/or lazy (ibid., 1:4). However, even in Talmudic times the jurists permitted women’s testimony as an exception in monetary, criminal, and personal status cases (ibid., 1:5–9; 2:1–4). In most cases, this permission is granted only when there is no objective option to use another testimony. In other cases, when this justification is irrelevant, the jurists present alternative lenient circumstances for the acceptability of female testimony (ibid., 2:7). 97. For historical evidence of women’s involvement in the transmission of traditions and in legal studies, see Berkey 1992, 168–69, 173–75, 180–81. 98. Fadel 1997, 186–93, 199–201. See also Alwani 1996, 173–79. On Abduh’s stand, see Rida 1999, 3:103–5. Sayyid Qutb (1999, 1:374–75) retreats from the reformist explanation for the lack of equality between a male’s and a female’s testimony to the traditional explanation, linking this inequality to the impulsive and emotional nature of women. 99. Sarakhsi 1993a, 6:48, 106; 17:82. 100. On Jewish law, see Holtzer 1971, 2:2. 101. Ibn Qudama 1990, 14:135; Mawardi 1994, 17:19–20; Tarabulsi 1973, 96; Husari 1979, 98–99. 102. Cf. the titles of female experts in seventeenth-century England: “ancient skillful matrons and midwives,” “knowing women” (Holmes 1993, 66, 71, 73). 103. Sarakhsi 1993a, 9:73–74. 104. For the texts of these traditions and the elaborate juristic discussion based on them, see Ibn Qudama 1990, 14:134–37; Sarakhsi 1993a, 6:49–50; Ibn Qayyim n.d., 90–96. 105. Ibn Abi al-Dam 1987, 316–18; Husari 1979, 94; Ibn Majuz 1984, 228–29.

210

Notes to Pages 51–55

106. Husari 1979, 94. 107. Sarakhsi 1993a, 6:49; Ibrahim 1985, 173. 108. Ibn Qudama 1990, 14:136. 109. Sarakhsi 1993a, 6:49–50; Ibn Majuz 1984, 230; Ibrahim 1928, 345. 110. On the Shafii position and its refutation of the Hanafi one, see Mawardi 1994, 17:21–3. 111. Husari 1979, 95–97. See also Ibn Majuz 1984, 230; Ibrahim 1928, 345. 112. Mawsili 1951, 2:140; Tarabulsi 1973, 96; Ibrahim 1928, 345. 113. Ibn Qayyim n.d., 91–92. In seventeenth-century England, the number of midwives commissioned to inspect a suspected witch ranged between four and twelve (Holmes 1993, 66, 71–72, 74). 114. Sarakhsi 1993a, 6:49–50. 115. Ibn Majuz 1984, 230. 116. Sarakhsi 1993a, 6:49. See also Ibn Qudama 1990, 14:136; Ibn Qayyim n.d., 94. 117. Sarakhsi 1993a, 6:49, 16:143–44; Ibrahim 1985, 173. 118. The Shafiis, rather than mentioning experts in this context, argue that with regard to defects that may be either old or recent, the buyer’s version—namely, that the defect is recent—is accepted together with his oath. See Mawardi 1994, 5:258–59. 119. Cf. Hallaq 2001, 209–13, where he demonstrates that a relaxation of the probative requirements regarding the correspondence between qadis (kita¯b al-qa¯d.¯ı ila¯ al-qa¯d.¯ı ) took place at the Maliki school in Andalusia around the year 600/1200 and was justified on the grounds of necessity: the late Maliki Andalusian jurists argued that the insistence of early Maliki doctrine on two witnesses who attended the event, in which the sending qadi wrote the document, placed an unjustified burden on witnesses who had to travel long distances, and thereby infringed on the efficient application of justice. For considerations of necessity, therefore, the jurists affirmed the validity of the correspondence without the involvement of witnesses, conditional upon the receiving qadi recognizing the official seal and handwriting of the sending qadi. Another example relates to a slave owner, who, after authorizing his slave to transact a deal involving his (the owner’s) property, sends a messenger to the slave with a notification of interdiction (h.ajr), thereby prohibiting the slave from continuing to transact the deal. The Hanafi jurists debate whether the messenger is required to be an upright person, as is a reporter or a witness. Abu Hanifa’s two students, the Sahiban Abu Hanifa and Abu Yusuf, contrary to the opinion of their master, hold that the content of the message is legally binding even if the messenger is of dubious character. They explain that insisting on the integrity of the messenger is a sort of hardship (d.arb h.araj), because it is not reasonable to demand of a property owner or a merchant that he find an upright messenger for each transaction he wishes to carry out. In conclusion, the Sahiban argue that leniency with regard to the number of messengers and their integrity is required, to ease economic activity. See Sarakhsi 1993a, 25:31–32. 120. Ibn Qayyim n.d., 96–97.

Notes to Pages 57–59

211

Chapter 2 1. Tyan 1955, 1:253–57; Ziadeh 1990, 78, 84. On the role of the notaries in seventeenth-century Egypt, see Nahal 1979, 18–19. 2. Hallaq 2005, 85–92, in which he mentions, following Tyan, the permanent aids of the qadi, such as the translator and the divider. 3. Nahal, in his work on the judicial system of seventeenth-century Egypt (1979, 22), writes that ahl al-khibra were professionals appointed by the court to give a learned opinion in a single case or to conduct an investigation that the qadi or the notaries could not handle alone. 4. Isa 1998, 305; Baghdadi 1998, 49. 5. Isa 1998, 317, 319; Farhat 1988, 82–83. On the consultation of qadis with heads and members of various guilds in Ottoman Cairo, see also Hanna 1995, 53. 6. Shayzari 1946, 12; Surty 1999, 12, 18. 7. Wadghiri 2001, 32, 43. 8. Mawsua, s.v. “Khars,” 19:101; ibid., s.v. “Khibra,” 19:20, according to which the qa¯sim should posses knowledge of partition, arithmetic, and the measuring of land. 9. For this tradition, see Tirmidhi 1991, 4:379. The first part of the hadith is: “The modest person is the one who had stumbled” (la¯ h.alı¯m illa¯ dhu¯ athra). The historical circumstances in which the Prophet enunciated this hadith are not indicated. In alMubarakafuri (1990, 6:154), the author writes in his commentary on this tradition that “The wise among the physicians is the one who is experienced in both the persistent [meaning chronic?] and innate issues” (wa-la¯ h.akı¯m min al-h.ukama¯ al-t.ibbiyya illa¯ s.a¯h.ib al-tajriba fil-umu¯r al-da¯iba wal-dha¯tiyya). In this context, I understand umu¯r as “maladies” or “defects.” See also al-Askari (1988, 2:46), who explains that the knowledge of the expert comes with experience (wal-khibra al-tajriba, li-anna al-ilm yaqau maaha¯). 10. Mawardi 1994, 17:387; Mawsua, s.v. “Khibra,” 19:22. 11. Sahar 2003, 22. 12. In Arab tribal law, too, there is often a degree of specialization of the adjudicators (named qadi or arı¯f )—for example, an adjudicator specializing in violence cases or one specializing in honor cases. See Stewart 2006, 243, 262n66. 13. Golan 2004, 18–22; Sahar 2003, 23–24. In the inquisitorial legal system of the European continent, the expert, as the court’s adviser, works under tight control of the judiciary. See Sahar 2003, 24–26. 14. Mawsua, s.v. “Khibra,” 19:25–26. See also chapter 1 of the present text, section 3.2, where I indicate that Malik refers to two options: (1) the translator is nominated by the qadi; (2) the translator is hired by a litigant. 15. Abd al-Rahman b. Muhammad. See Zirikli 1980, 3:327. 16. Wansharisi 1981, 6:259–60. 17. Tulaytuli 1994, 185. Cf. Van Staevel (2001, 657), who translates taka¯dhub in a similar tradition as “propos spécieux,”—i.e., sayings that have a deceptive attrac-

212

Notes to Pages 59–63

tion or allure or that have a false look of truth or genuineness. However, I prefer to translate it as contradictory—i.e., the two expert opinions contradict each other. The Hanafi opinion is similar to the Maliki one; see Mawsua, s.v. “Khibra,” 19:21, 25–26. 18. Ibn al-Rami 1999, 112–13. 19. Ibn al-Qasim al-Jaziri (d. 1189; Maghribi) supports this opinion on the grounds that the party that establishes the existence of damage adds knowledge to the court. See ibid. By contrast, Al-Mawsua (s.v. “Khibra,” 19:21, 25–26) holds that in a case of conflict between two experts for khars (assessing the quantity of fruit before it is picked), the one whose expertise is greater should be preferred. If the expertise of the two is on the same level, the assessments of both should be considered (by way of an average?). On this topic of conflicted expert opinions, see also Wadghiri 2001, 47–48. 20. Ibn al-Rami 1999, 112–13. 21. Sarakhsi 1993a, 12:166; Shafii 1993, 6:243. 22. Nawawi 1992, 2:175–76. Cf. Sarakhsi 1993a, 15:6. 23. Sarakhsi 1993a, 12:145; Ibn Farhun 1986, 2:84; Nawawi 1992, 3:6. 24. Kasani 1910, 3:22, which uses the term ahl al-lugha. 25. Ibn Abidin 1966, 8:137. 26. Hallaq 1999, 458, quoting Tanbı¯h al-H.ukka¯m of the Maghribi Maliki Ibn alMunasif (d. 1223). Notice that, by requiring two experts, Ibn al-Munasif regards them as witnesses, replacing the two witnesses who were supposed to testify to their having seen the sending qadi’s writing of the document. On the use of experts for handwriting in the context of conveying testimony from one qadi to another, see also Layish 2006, 498. 27. Nawawi 1992, 5:409. 28. Sarakhsi 1993a, 11:244. 29. Ibid., 15:88. 30. Ibid., 12:153—“The qadi will have two practitioners of this craft inspect the dress” ( fa-inna al-h.a¯kim yurı¯hi [al-thawb] rajulayn min ahl tilka al-s.ina¯a); ibid., 18: 63–64, respectively. In the second case, Sarakhsi uses the term “the knowledgeable dyers” (ahl al-ilm bi-dha¯lika min al-s.abba¯ghı¯n). If the experts disagree, the burden of proof falls on the dyer. The modern jurist Abu Zahra (Jamiyyat 1969, 2:47), referring to the text of Sarakhsi, regards the two experts as witnesses (al-khabı¯ra¯n alladhdha¯n yaku¯na¯n ka-sha¯hidayn). 31. Baghdadi 1998, 117n36. 32. Ibn Taymiyya n.d., 29:394–95. 33. Nawawi 1992, 4:300. 34. Ibn Abidin 1966, 8:25. On s.a¯h.ib al-yad, see Mawsua, s.v. “Shaha¯da,” 26:246–49. 35. Ibn Nujaym n.d., 8:8. 36. Nawawi 1992, 3:6. On the term qiyam al-mutlafa¯t, see Sarakhsi 1993a, 4:84, 9:73, 15:88; Ibn Abidin 1966, 7:311. 37. Mawsua, s.v. “Khibra,” 19:20.

Notes to Pages 63–65

213

38. Ibn Abidin 1966, 5:17. 39. Farhat 1988, 83; Isa 1998, 317; Nahal 1979, 23. 40. Ibn Nujaym n.d., 6:41–42: “The authority to which one turns in order to know it [i.e., the reduction of the item’s price] is the custom of its people, that is, the merchants or the craftsmen, if the object of sale is a manufactured item” (wal-marja fı¯ marifatihi [marifat intiqa¯s. al-qı¯ma] urf ahlihi wa-hum al-tujja¯r aw arba¯b als.ana¯i in ka¯na al-mabı¯  min al-mas.nu¯a¯t). 41. Ibn Abidin 1966, 6:22. See also ibid., 8:399 on the evaluation of property that the renter built and installed on the rented property, and for which he demands compensation at the end of the rental period. 42. Ibn Abidin 1966, 7:315. 43. Subki 1948, 64. He uses the term “the witnesses of the value” (shuhu¯d al-qı¯ma) or, according to another manuscript of the same work, “the witnesses of the division” (shuhu¯d al-qisma); Sarakhsi 1993a, 15:65–66. 44. Ibn Abidin 1966, 7:416; Sarakhsi 1993a, 9:178–79; Ibn Farhun 1986, 2:83–84. The latter quotes Ibn Rushd, who said that, according to Malik, if the four experts (al-muqawwimun lil-sariqa) are in dispute about the value of the stolen property, the qadi should consult additional ones until his mind is at rest (since the application of a hadd is a grave matter). 45. Nuwayri 1933, 9:137–38: “the witnesses from among the experts on land and on the assessment of land price” (al-shuhu¯d . . . min ahl al-khibra bil-aqa¯r wa-taqwı¯mihi). 46. Ibid., 9:75–78. 47. Sarakhsi 1993a, 5:69–70. On this topic, see also Ibn Nujaym n.d., 6:41–42; Ibn Abidin 1966, 5:76; Nawawi 1992, 3:145. 48. Messick 2006, 216. This practice draws on the doctrine of the twentieth-century Zaydi jurist al-Ansi. According to the latter, individuals with specialized knowledge (dhu¯ marifa) may assist the nonexpert buyer in achieving a “discriminating visual inspection.” See ibid., n. 13. 49. Nawawi 1992, 4:295–96. 50. Ibn Nujaym n.d., 8:16. 51. Khalili 1867, 1:132–33, 209, respectively. According to the anthropologist Frank Stewart (personal correspondence, 17 May 2006), Arab tribal law recognizes a camel expert, called maswaq. For example, if the adjudicator rules that the loser in the trial should give the winner a number of camels of certain age and type, it is for the maswaq to make sure that the proffered camels meet the required specifications. 52. Nawawi 1992, 7:188–89. 53. Gerber 1994, 53–54. 54. Ibn Farhun 1986, 2:84. 55. Sarakhsi 1993a, 23:5–6; Shafii 1993, 2:44–45; Nawawi 1992, 2:115. See also Mawsua, s.v. “Khars,” 19:101, and “Khibra,” 19:21. 56. For a detailed description of the divider’s work, see Ibn Rushd 2000, 2:317–24;

214

Notes to Pages 65–68

Sarakhsi 1993a, 16:102–4. In the Ottoman legal system, qassa¯m was the title given to the trustee who divided an estate among the heirs of a deceased person. There were two types of qassa¯ms: those who worked under the kadiasker and those employed locally in each qadi’s court. The procedure of the qassa¯m’s work, according to a register from 1518 Bursa, was as follows: The belongings of a deceased person were first examined in the presence of the qassa¯m and entered in the register. An “expert” (probably an assessor) then evaluated the items’ worth, which was recorded for each item, before the qassa¯m assessed the proportion to which each heir was entitled. From the legacy, the qassa¯m deducted his fees and the funeral expenses of the deceased; he then transmitted the remainder to the heirs. See EI2, s.v. “K.assa¯m.” 57. Asyuti 1955, 2:416–34; Tulaytuli 1994, 319–23. 58. Nawawi 1992, 8:181–82. 59. Asyuti 1955, 2:429. 60. Nawawi 1992, 8:122 (he mentions there that if the state treasury is empty, the ruler should not nominate a divider). See also Sarakhsi 1993a, 15:5–7. 61. See, for example, Asyuti 1955, 2:425: “A just expert, the respectable so-andso, who was nominated by majlis al-h.ukm, conducted the partition of the property between them” (tawalla qismatuha¯ baynahuma¯ adl khabı¯r mandu¯b li-dha¯lika min majlis al-h.ukm al-azı¯z al-fula¯nı¯ al-H.anbalı¯ ). 62. The same applies with respect to the wages of the physiognomist. See Mawardi 1994, 17:394. 63. Nawawi 1992, 8:181–82. On the alternative distributions of the divider’s wages among the heirs or the partners, see Asyuti 1955, 2:416. 64. See, for example, the contested narrative of Huff (1993, 170–79, 198–201). He argues (p. 173) that, “In such a situation lacking diplomas, degrees, and standard curriculum, and an organized body of professionals to enforce minimum standards, it is not surprising to learn that charlatanism was widespread.” He also claims (p. 178) that since the ulama did not assign to the sciences a proper place in culture in general and in institutions of learning in particular, medicine, as well as the other sciences, declined and stagnated after the thirteenth century. On the Ottoman medical institution as an example of an “open” system, see Shefer 2002, 314. 65. Ihsanoglu 1992, 38–41. 66. Rispler-Chaim 1993, 67–69. 67. Cohen 2001, 82–84. 68. Ibn Nujaym n.d., 2:303; Sarakhsi 1993a, 1:215; Ibn Abidin 1966, 1:233, 2:96, 422. The Shafiis also permit ablution with sand if physicians testify that ablution with water might cause leprosy (baras.) or another skin disease. See Suyuti 1959, 392. The Malikis deny these concessions, according to the tradition of Muhammad’s Companions. 69. Ibn Nujaym n.d., 2:307. 70. Ibid., 8:210, 233; Ibn Abidin 1966, 5:228; 6:389; Ibn Taymiyya n.d., 21:571, 24:273.

Notes to Pages 68–71

215

71. Rispler-Chaim 1993, 52–53, 56, 60–61. The Salafi scholar Rashid Rida (d. 1935) advises the true believer to abstain from consuming such medicines, out of fear of addiction, and criticizes sinful physicians who recommend to their patients the consumption of wine to strengthen their bodies. See Rida 1970, 1:31–32. 72. Ibn Abidin 1966, 4:173. 73. Haytami n.d., pt. 4, 2:351. 74. Suyuti 1959, 393. 75. Ibid., 392. Ibn Qudama 1990, 10:58; Burzuli 1987, 2:287. See also Wansharisi (1981, 3:177–78) on the involvement of physicians in a case in which the husband argues that his wife suffers from leprosy, yet the wife’s father argues that the spots (luma¯t) on her skin are unidentified. 76. See Burzuli 1987, 2:338. Burzuli’s opinion is cited in Wansharisi 1981, 3:312–13. On Abu al-Qasim b. Ahmad al-Burzuli, which was one of the main sources for alWansharisi’s Miyar, see EI2, s.v. “al-Burzuli.” On Abu Abdallah Muhammad alMazari, see Powers 2002, 74n85. 77. See chapter 3 of the present text. 78. Nawawi 1992, 5:510–11. 79. Abu Zahra 1976, 445–48; Mawsua, s.v. “Khiya¯r al-ayb,” 20:116–19. 80. Sarakhsi 1993a, 13:105ff.; Asyuti 1955, 1:70–71; Tulaytuli 1994, 169–71. 81. Tulaytuli 1994, 183–84 (here the experts are called “witnesses,” shuhada¯). See also a similar formulary in Nuwayri 1933, 9:142–43: “experts possessing intrinsic knowledge of slaves and their defects” (ahl al-khibra al-ba¯t.ina bil-raqı¯q wa-aybihi) inspected the slave girl and found a chronic disease that had developed prior to the date of sale and which decreased the value of the slave. 82. Tulaytuli 1994, 179–80. 83. Sarakhsi 1993a, 13:110. 84. Ibn Rushd 1987, 3:1562. The same legal opinion appears in Wansharisi 1981, 6:61–62. 85. Mahdi 1883/84, 3:47 (a female slave afflicted with epilepsy [nuqt.a] that resulted in paralysis of her leg); 54 (a defect in the body of a male slave that is known only to physicians, who determined that the defect had been created five months prior to the sale); 86 (the buyer of a black female slave argued that she smelled badly [anna biha¯ rih.an]; the physicians negated his claim); 87 (a eunuch afflicted with leprosy); 87 (a defect in a black female slave); 94 (a defect in a female slave-concubine). 86. Isa 1998, 318. It seems that the physician’s daughter had to accompany the male physician because the slave involved was a female. See also Farhat 1988, 83—a surgeon sent by the qadi verified the buyer’s claim that the slave suffered from elephantiasis. 87. Ibn Farhun 1986, 2:81–82. On Abu Abd Allah Muhammad b. Umar Ibn Lubaba, see Powers 2002, 224. It is interesting to note that the Hanafi Tarabulsi (1973, 130–31) quotes the opinion of the Maliki Ibn Sahl on this matter. 88. Coady 1992, 298–301.

216

Notes to Pages 71–74

89. Nuwayri 1933, 9:112. 90. Sarakhsi 1993a, 27:32. 91. Nawawi 1992, 7:260–61. 92. Isa 1998, 305 (notaries); Baghdadi 1998, 50 (physician), 90, 116n35 (corpse washers). 93. Ibn Rushd 2000, 2:493, 512–13. According to Ibn Rushd, Abu Hanifa accorded with Malik about the denial of retaliation in cases of broken bones, excluding teeth. See also Sarakhsi 1993a, 26:146. 94. Asyuti 1955, 2:296–301. 95. Ibn Farhun 1986, 2:84–85. 96. Peters 2005, 49, 52, 191–92. On the technical term arsh al-jina¯ya, see Ibn Rushd 2000, 2:575; Sarakhsi 1993a, 26:98–99; Nawawi 1992, 7:217–18. 97. Asyuti 1955, 2:296–301. See also Ibn Rushd 2000, 2:507. 98. Nawawi (1992, 7:83) speaks about a person who cut another person’s finger. The wound was treated, but the whole palm subsequently fell off and physicians had to determine whether this was the result of the original injury or of the medical treatment of the wound. 99. Ibid., 7:55. 100. If the physicians determine that the status of insanity is reversible, the payment of blood money is delayed. See ibid., 7:148. 101. Ibid., 7:151. 102. If physicians determine that the loss of hearing is reversible, the payment of blood money is delayed. See ibid., 7:150. 103. Ibid., 7:154. 104. Ibn Nujaym n.d., 8:346. For an identical discussion in Shafii literature, see Nawawi 1992, 7:70–71, 137. 105. Ramli 1893/94, 2:199. For another opinion of al-Ramli, in which he refers to a case in which a bull butted a person and broke his hand, see ibid., 2:206–7. See also Mahdi (1883/84, 5:430–31) regarding a person who was beaten by the local governor’s representatives because of a dispute over the payment of taxes, became bedridden, and died. His heirs argued that his sickness and death resulted from the beating, whereas the governor argued that the cause of death was a disease not related to the beating. Physicians who visited the deceased on his deathbed confirmed the heirs’ version. 106. Farhat 1988, 83. See also Baghdadi 1998, 90, 116n35 (the barber opined that the injured fingers would heal). 107. Gerber 1994, 44–45, 53–54, respectively. 108. Stewart 2006, 252–53 and personal correspondence (17 May 2006). Mohsen (1971, 71, 174–76) and Mahjub (1989, 197–98), who write on the naz.z.a¯r among Awlad Ali of the Western Desert, differ on his role: while Mohsen describes him as an adjudicator, similarly to Stewart’s analysis of the qas.s.a¯s. in Sinai, Mahjub writes that the naz.z.a¯r’s role is limited to defining the scope of the injury, and that he leaves to the

Notes to Pages 74–76

217

judge, called al-murd.¯ı, the decision on the form of bodily retaliation or, alternatively, on the amount of monetary compensation. I thank Frank Stewart for referring me to these sources on the naz.z.a¯r. 109. Ibn Abidin 1966, 6:295. See also Wansharisi (1981, 6:268–69) on the expertise of the butcher (al-jazza¯r) with respect to maladies discovered in animals after they have been slaughtered. 110. Al-Ramli explains that this case is analogous to one in which a person who purchased a slave did not notice that the slave had a scar created by an abscess that had healed. Some time later the abscess reappeared, and surgeons testified that it was not a new abscess but the return of the old one. See Ramli 1893/94, 1:224. See also Mahdi (1883/84, 3:63) on a person who bought a cow and used it for a considerable period for plowing. The cow was then afflicted with paralysis (shalal), and her owner wanted to return her to the seller. His demand had to be rejected, on the grounds that the experts testified that the cow’s sickness was recent. 111. The Shafii mufti al-Khalili (1867, 1:133–34) was asked about a camel that died in the possession of its new owner. After its belly was cut, it was found to have suffered from a disease that is generally discovered after an incubation period of one year. People acquainted with this disease testified that it must have started when the camel was still in the possession of its original owner. The mufti referred to a tradition according to which the Meccan Arabs were aware of a similar disease and could identify whether it was old or new. A second question (ibid., 134) referred to experts who testified about a certain defect that was discovered in a goat only after a long period. A third question (Ibn Rushd 1987, 3:1565) referred to a case in which veterinarians, ahl al-bas.ar wal-marifa bi-uyu¯b al-dawa¯bb (lit.: “those who possess knowledge on the defects of beasts”), testified that the abscesses found on the beast’s body by the purchaser were new and not the same ones that the seller had acknowledged and exempted himself from (tabarraa min) at the time the sale was contracted. Wansharisi (1981, 6:247) cites the same opinion. See also Burzuli (1987, 3:296) for a similar opinion by Ibn Rushd; and Wansharisi (1981, 6:259–60) on a person who bought a female mule in an Andalusian town, rode on her to another town, and after a month or two discovered defects that he argued had existed in the beast at the time of the sale. 112. Cohen 2001, 85. 113. Ibn Qudama 1990, 14:273; Ibn Farhun 1986, 2:85 (ahl al-marifa min alakriya¯, “the knowledgeable from among the beast renters”). 114. Ibn Abidin 1966, 5:599. 115. Ibn Khaldun 1958, 2:361–62. 116. Ibn al-Rami 1999, 141–42. 117. See in the introduction of chapter 1 of the present text. 118. Ibn a-Rami 1999, 36. 119. Ibid., 43, 64–65, 107–8, 110–11, 141–42, 189. For cases in which Ibn al-Rami functioned alone, see ibid., 37–38, 146. 120. Ibid., 37–38, 43, 64–65, 110–11, 141–42, 146.

218

Notes to Pages 76–80

121. Ibid., 107–8 and 189, respectively. Cf. Brunschvig (1976a, 32), who writes that the qadi used to appoint the experts or, alternatively, the disputing parties approached them as arbitrators, to avoid the judicial procedure. A third possibility was for the plaintiff, or both parties, to provide themselves with expert reports in preparation for the judicial hearing, to convince the qadi to rule in their favor. 122. For a case in which the experts composed a document, see Ibn al-Rami 1999, 110–11. 123. Ibid., 189. 124. Ibid., 64–65. 125. Powers 2002, 112–17. 126. Goitein 1973, 405–6. 127. Hanna 1984, 4–10. See also Nahal 1979, 22; Qasimi 1960, 1:53–54. Afifi (1991, 155n41) writes that the Ottoman court records in the early seventeenth century had a fixed phrase by which they referred to the architects: “the architects in Egypt who possess knowledge on lands and their value, on buildings and their deficiencies, on walls and their defects and on debris and its value” (al-muhandisu¯n bil-Diya¯r alMis.riyya al-a¯rifu¯n bil-aqaa¯ra¯t wa-qı¯matiha¯ wal-abniya¯ wa-ikhtila¯liha¯ wal-judu¯r wa-uyu¯biha¯ wal-anqa¯d. wa-qı¯matiha¯). Farhat (1988, 83) refers to a consultation of the courts with members of the builders’ guild (t.a¯ifat al-bana¯ı¯n) regarding the required standards of building and infringement of passage and privacy rights by new buildings. 128. Baghdadi 1998, 62n4. 129. Ghazaleh 1999, 44. 130. Nuwayri 1990, 30:235–36. 131. Afifi 1991, 155, 179–80; Isa 1998, 319; According to Nahal (1979, 22), builders were frequently summoned to give their expert opinion in disputes between the waqf administrator and the beneficiaries regarding the sums required for the maintenance of the waqf estate. 132. Isa 1998, 319–21. According to Afifi (1991, 178–80), a report by kashsha¯f alawqa¯f was not an obligatory requirement for approving exchange transactions. In some cases the qadis were satisfied with the reports of “independent” architects (muhandisu¯n yantamu¯na ila al-ama¯l al-h.urra). Afifi argues that since these architects, contrary to kashsha¯f al-awqa¯f, were not directly supervised by the qadi, the door was wide open for corruption ( fasa¯d). In 1712 Damascus, a request for exchanging a waqf asset for money was approved by the qadi after the kashsha¯f (translated by Van Leeuwen as “town inspector”) and the architect (mima¯rba¯shı¯ ) had inspected the building. In another case, a waqf renter who had built a bathhouse on the waqf land at his own expense asked that the cost of renovation be deducted from his rent debts. The court accepted his claim after the property had been inspected by the inspector and an assessor had calculated the construction costs. See Van Leeuwen 1999, 160, 166, respectively. In Ottoman Jerusalem, the qadi nominated the head of the constructors’ guild to oversee an inspection committee that examined the repairs

Notes to Pages 80–84

219

needed to the vegetable market. The report of the committee served as the basis for the renovation plan. See Cohen 2001, 159. 133. Nuwayri 1933, 9:54–57. On p. 57, those who testified and later signed a document concerning the worth of the house are called in one place “the notaries and the architects,” but in another place “the witnesses on the value and the architects.” It seems that “the notaries” in the first reference are called “the witnesses on the value” in the second reference. 134. Ibid., 9:66–70 (in addition to the architects who testified on the worth of the property, the document refers to the involvement of real-estate dealers, sama¯sirat alaqa¯r, in the process), 98–101, respectively. 135. Ibid., 9:85–86. The architects in the document are referred to as “two men from among the architects and the experts on measuring of lands, on partition of lands and on buildings” (rajulayn min ahl al-handasa wal-khibra bi-masa¯h.at alara¯d.¯ı wa-dhariha¯ wa-qismatiha¯ wal-a¯dur wa-qı¯matiha¯). 136. Ibn Farhun 1986, 2:83. On Qadi Ibn Zarb, see Powers 2002, 224 n. 137. Ibn al-Rami 1999, 107–8. For two additional examples, see ibid., 110–11. 138. Cf. Golan (2004, 38) writing about England: “For centuries [up to the eighteenth century], experts had been summoned to court to give their opinions about matters that were not common knowledge but that were nonetheless concrete and tangible—matters such as norms of trade, the construction of ships or wagons, meaning of Latin words, foreign laws, the nature of wounds, the traits of witches, and so forth.” See also ibid., 58. 139. See page 10 of the present text. 140. See chapter 2, section 4 of the present text. 141. The fashion of slandering the professionalism of physicians was common among literary circles before the Ottoman period and throughout that period. See Shefer 2002, 312–13.

Chapter 3 1. Sarakhsi 1993a, 10:156–57; Bos 1993, 305–6. 2. Wansharisi 1981, 6:52. 3. Sonbol 2003, 79–80. She neither relates her statement to any specific time and place nor provides any references for it. 4. For example, nurses who had reached menopause were permitted to treat male patients, while male physicians were given the legal status of mah.ram (related to a female to a degree that forbids marriage between them) to enable him to treat female patients. See Shefer 2003, 131–33. 5. Cf. Safadi (d. 1363) 1972, 116, in which he uses the phrase “the speech of the old midwives” (kala¯m al-aja¯iz qawa¯bil al-nisa¯). 6. Marland 1993, 4; Bar-On 2000, 66–67; Baumgarten 2000, 50, 55.

220

Notes to Pages 84–85

7. Toledano 1998, 76; Lane 1954, 509–11. Qasimi (1960, 1:134), referring to late Ottoman Syria, reports that midwifery passed from mother to daughter. 8. Sarakhsi 1993a, 10:156; Ibn Khaldun 1958, 2:368–70. The Egyptian Maliki jurist Ibn al-Hajj al-Abdari (d. 1336) criticizes midwives for ignoring the basic rules of hygiene and for their persistence refusal to cooperate with one another, thereby risking the health of mothers and infants (n.d., 3:282–91). In the same manner, the Shafii Ibn Hajar al-Haytami (d. 1567) links infant mortality to the irresponsible treatment of midwives in the course of deliveries. See Giladi 1992, 77. 9. Zaydan 1994, 7:291–92. 10. Ahmed 1992, 84, 115. See also Shatzmiller 1994, 353, concerning the Maghrib. 11. Three studies, all based on the sharia court records of Ottoman Jerusalem in the sixteen century, present contradictory evidence. Al-Yaqub (‘Na¯h.iyat al-Quds al-Sharı¯f fı¯l-Qarn al-A¯shir al-Hijrı¯ / al-Sa¯dis Ashr al-Mila¯dı¯’, master’s thesis, Jordanian Univ., 1986, quoted in Abu Salim 2000, 66–67) argues that there was a guild for midwives; Sonbol (2003, 74) does not mention a specific midwives’ guild and argues (p. 79) that in 1555 there were five midwives in Jerusalem; Cohen (2001, 186) does not find a midwives’ guild in Jerusalem and mentions that Abd al-Karim Rafiq does not find names of women in lists of guilds from Ottoman Damascus and Aleppo. Evliya Çelebi, in his detailed description of the guilds of Istanbul in the first half of the seventeenth century, did not mention a midwives’ guild among the eleven medical guilds. See Shefer 2002, 308–9. As for nineteenth-century Egypt, Baer (1964, 33, 171) finds the midwives (daya¯t) in the guilds list, but is not sure if there was an organized midwives’ guild. 12. Marland 1993, 7. For additional information, see the articles of Harley, Wiesner, and Ortiz in the same volume. See also Holmes 1993, 74. In seventeenth-century England, midwives served as expert witnesses in trials against witches. They were instructed to discover the incriminating physical characteristics that indicated the witch’s complicity with Satan (Holmes 1993, 46, 58, 65, 72). 13. Yaqut 1866, 1:853. Another illustration (Tabari 1987, 42–43) relates to the ancient Arab prophet Salih, who told the people of his tribe, Thamud, that a child about to be born to one of them would hamstring the she-camel (the sign for Salih’s true prophecy that God had sent to the people of Thamud). Frightened by the prophecy, the people of Thamud sent eight midwives to look for all the newborn babies and kill the males among them. The number of the midwives—eight—is puzzling. Perhaps it is related to the fact that in the city of Thamud there were eight unrepentant evildoers who were suspected as the possible fathers of the expected child. A similar report on midwives (Tabari 1991, 32) relates to Pharaoh, who ordered midwives to search for the firstborn sons of “the People of Israel” and kill them. 14. Berkey 2003, 133–34. 15. See Longinotto and Hunt 1990. In what seems to be a legendary story, the Maghribi historian al-Himyari (d. 1494) relates (1984, 58) that Nubian women from

Notes to Pages 85–88

221

Aswan (Lower Egypt) were so tall and strong that no man could deflower them; therefore, the assistance of midwives was needed to enable the penetration. 16. Marcus 1989, 323–24. In a similar case, a Bedouin asked the Sharia Court of Ajdabiya (in Libya) to issue a document to the effect that his eight-year-old daughter, while playing, fell down on the sharp handle of a hand mill and, as a result, broke her hymen. A woman, probably a practitioner of popular medicine, examined the girl immediately after the accident, while she was still bleeding, and confirmed the girl’s loss of virginity as a result of the accident. See Layish 2006, 513–14. 17. Fahmy 1998a, 35; Fahmy 1998b, 59–61. For additional evidence concerning Ottoman Cairo, see Sonbol (2003, 80), who cites a document issued by Bab al-Ali Court in Cairo in 1736. See also Baghdadi (1998, 90–91) on the testimony of midwives regarding virginity, abortion, and infant mortality, and ibid., 116n35, on a qadi who, following a complaint filed by a mother concerning the deflowering of her minor daughter, sent two women, who inspected the girl and found her still a virgin. 18. Wansharisi 1981, 3:32–35. I thank David Powers for directing me to this text, allowing me to read his analysis of the case, and discussing it with me. 19. In early modern Europe, surgeons argued that midwives failed to distinguish between virgin and nonvirgin women and also between pregnant and nonpregnant ones (Bar-On 2000, 130, 155, 212). On the general involvement of seventeenthcentury English midwives in virginity tests in the context of civil and criminal cases, see Holmes 1993, 74. 20. Nahal 1979, 22; Farhat 1988, 83–84. 21. Sarakhsi 1993a, 10:156–57; Ramli 1893/94, 1:60; Qadri 1928/29, art. 301; Abu Zahra 1957, 357. 22. Sarakhsi 1993a, 9:50; Zaydan 1994, 5:106–8. On Malik’s stand on this issue, see also Powers 2002, 77. For Maghribi legal opinions on the involvement of expert women in cases in which the husband argued that his wife suffered from defects in her sex organs, see Wansharisi 1981, 3:132, 139. 23. Sarakhsi 1993a, 13:99–100; Husari 1979, 97. A similar case (Wansharisi 1981, 3:166) refers to a male who married a female slave on the condition that she was a virgin and, after consummation of the marriage, argued that she was not and consequently demanded a partial reimbursement of the dower money. The mufti Abu Muhammad b. Abi Zayd (probably al-Qayrawani, d. 996) answers that if expert women inspect the wife and find that the rupture of her virginity is old, the husband is entitled to be reimbursed by the wife’s father or brother. 24. On the acceptability in Jewish law of a woman’s testimony regarding the age of another woman, see Holtzer 1971, 2:2. 25. Wansharisi 1981, 3:133. 26. They are referred to as “the trusted, reliable, knowledgeable midwives, who are consulted on female issues that males may not see” (al-qawa¯bil al-thiqa¯t al-amı¯na¯t al-a¯rifa¯t al-marju¯ ilayhinna fı¯ma¯ la¯ yut.liu alayhi al-rija¯l min ah.wa¯l al-nisa¯).

222

Notes to Pages 88–91

27. Wansharisi 1981, 3:49. 28. Ramli 1893/94, 1:32. 29. al-Jaziri 1980, 4:215. 30. Shafii 1903, 5:220; Ibn Hazm 1984, 1:412 (the midwives should be upright and knowledgeable, a¯lima¯t). 31. Ibn Rushd 1987, 3:1278–79. See also ibid., 2:1046–48 (in which the divorcee demands waiting-period maintenance on the grounds of her pregnancy). 32. Wansharisi 1981, 4:54–55. For a similar or maybe the same case, see Ibn Rushd 1987, 2:1046–48. See also Wansharisi 1981, 4:523. 33. Zaydan 1994, 5:113–14. 34. Sarakhsi 1993a, 9:73–74. Cf. seventeenth-century England, in which midwives were most frequently employed on juries impaneled to test the claim that a woman convicted of a capital felony was pregnant (Holmes 1993, 74). See also Bar-On 2000, 62. Ibn Taghribirdi (1963, 4:185) relates that the Fatimid caliph al-Hakim bi-Amri Allah, after being informed that the behavior of his unmarried sister, the Princess Sitt alMulk, was immoral, sent midwives to verify that she was not pregnant (li-istibra¯iha¯). On the historical background of that episode, see Lev 1987, 324. On istibra¯, see Powers 2002, 28. 35. Musallam 1983, 68–71. 36. Toledano 1998, 60–61. See Marcus 1989, 201, on a few cases of willful abortion in eighteenth-century Aleppo. On the involvement of midwives in abortions in early modern Europe, see Bar-On 2000, 64, 100. 37. See Sonbol (2003, 80) on midwives in eighteenth-century Cairo who were sent by the courts to investigate cases of forced abortion. 38. For h.uku¯mat adl, see chapter 2, section 4 of the present text. According to Ibn Hazm (1984, 11:236–38), the testimonies of four midwives as to the duration of pregnancy prior to the abortion (four months being the dividing line) determine the financial liabilities of the person who caused her abortion. According to Musallam (1983, 57), in addition to penal liabilities, a “formed” aborted fetus is entitled to religious burial. Also, if a female slave who conceived from her master aborts a “formed” fetus, she is entitled, as umm walad, to her freedom at the time of her master’s death. 39. Nawawi 1992, 6:352–53. Subki (1992, 3:232), referring to the conflict of opinion among Shafii jurists with regard to this topic, mentions that the midwives, in order to substantiate their determination, poured hot water on the aborted fetus’s body and washed it, and then the signs of a human body became clear to the observers. See also ibid., 5:218–19, on cases in which the midwives say that the aborted fetus does not carry human signs or that they are not sure if it does or does not. 40. Zaydan 1994, 5:382–85. The Malikis apply the status of an embryo to the blood clot if it is on the verge of becoming a lump of flesh. They test the blood clot by pouring boiling water on it. If it does not melt, the criterion is satisfied. See Sarakhsi 1993a, 6:27. On the differences among the law schools on this topic, see also Ibn Rushd 2000, 2:502–3.

Notes to Pages 91–95

223

41. Wansharisi 1981, 9:213–14. 42. Ibn Qayyim n.d., 92–93. In Jewish law, too, the testimony of a midwife concerning birth is acceptable, because there is nobody else to testify about it (Holtzer 1971, 2:1–2). 43. Tarabulsi 1973, 95; Qadri 1928/29, art. 348. 44. Qadri 1928/29, art. 348; Abu Zahra 1957, 394–95. 45. Qadri 1928/29, art. 349, adopts Abu Hanifa’s view. For the opinion of the Sahiban, see Kasani 1910, 3:216–17. 46. Sarakhsi 1993a, 6:48, 16:144, 30:128; Ibn Abidin 1966, 3:545–46, 548; Abu Zahra 1957, 394. 47. Abu Zahra 1957, 395. 48. Ibn Abidin 1966, 3:545; Qadri 1928/29, art. 349. 49. Sarakhsi 1993a, 7:135–36. The same controversy between Abu Hanifa and the Sahiban takes place in the case of a husband who stipulates that his wife’s divorce is conditional upon her giving birth; after she gives birth and a midwife testifies about it, he denies the birth. The question is whether the divorce takes place on the basis of the midwife’s testimony. See Sarakhsi 1993a, 6:105–6; Tarabulsi 1973, 95–6; Husari 1979, 97. 50. See chapter 1, section 4 of the present text. 51. Ibn Abidin 1966, 7:74; Sarakhsi 1993a, 16:144. 52. In the context of the entitlement of the relatives of the aborted fetus to blood money, the Malikis consider the first cry as the exclusive sign of life of the aborted child. Shafii and Abu Hanifa accept in addition to the first cry any indication of life, such as movement, sneezing, or breathing. See Ibn Rushd 1996, 2:502–3. 53. Sarakhsi 1993a, 16:144; Ibn Abidin 1966, 2:227. See also Ibn Qayyim n.d., 94–95. On the number of required women according to other schools, see al-Asyuti 1955, 2:439; Husari 1979, 98–99. 54. Tulaytuli 1994, 340–41. 55. See chapter 1, section 4 of the present text. 56. Ownership in this context means the exclusive right of the husband to enjoy the body of his wife. 57. Ibn Qayyim n.d., 90, 93–96; Ibn Rushd 1996, 2:560; Sarakhsi 1993a, 5:137–8; Asyuti 1955, 2:439. 58. See chapter 2, section 4 of the present text. 59. Ibn Farhun 1986, 2:81–82. He requires that the female be an expert in medicine (ma¯hira bil-t.ibb). For the juristic discussion of specific physical defects in female slaves, see Tulaytuli 1994, 169–71; Sarakhsi 1993a, 13:107ff.; Asyuti 1955, 1:70–71. 60. Isa 1998, 318. 61. Sarakhsi 1993a, 13:99–100. 62. Ibid., 13:110–11; Tarabulsi 1973, 96, 130 (he conditions the annulment of the sale on the inspecting female being a physician; otherwise, a male physician is required); Ibn Nujaym n.d., 6:46–8; Ibn Abidin 1966, 5:31–2.

224

Notes to Pages 96–104

63. Ibn Farhun 1986, 2:81–82. See also chapter 2, section 4 of the present text, with regard to physicians, and about a similar controversy between the Maliki qadi Ibn Zarb and an anonymous Maliki qadi with regard to constructors. 64. Ibn Farhun 1986, 2:85. 65. Sonbol 2003, 30. 66. Giladi 1999, 88. 67. Cf. seventeenth-century England, in which the functioning of females as witnesses in witch trials was designed and orchestrated by the male magisterial and clerical elites (Holmes 1993, 73, 76–78). 68. Kuhnke 1990, 122–33; Sonbol 1991, 80–81, 88–89, 101–2, 129–30; Fahmy 1998a, 23; Fahmy 1998b, 41–46, 50–52, 55–57, 59–62; Sonbol 2003, 12, 223–24.

Chapter 4 1. Haydar 1925, 1:29–91, 300–301, respectively. 2. Ibid., 2:376–77. 3. Haydar 1932, 13:140–42. 4. Haydar 1933, 15:22, 25–26. 5. Ibid., 15:43–45. Haydar finds the source of this article in the Hanafi work Majma al-Anhur by Shaykhzade (d. 1667/68). 6. I have found a few cases in fiqh texts in which the verb istakshafa appears in relation to a person who needs to clarify for his own interests the legal status of a certain estate or transaction. See, for example, Sarakhsi 1993a, 23:139. In one case it is the qadi who has to clarify—probably with the help of a messenger or witnesses—the whereabouts of an absent heir before he divides the legacy between the remaining heirs (h.atta¯ yastakshif al-qa¯d.¯ı an khabarihi fı¯ l-bulda¯n allatı¯ sa¯fara ilayha¯). See Ibn Muflih 1997, 8:293. 7. The Egyptian Ordinance on the Organization of the Sharia Courts (Law no. 78 of 1931) states that testimonies regarding the appropriate level of alimony are treated as shaha¯dat istiksha¯f, and that they are therefore not given under oath (art. 174). Qadi Ahmad Natur, the current president of the Israeli Sharia Court of Appeals, who uses the term in his judicial circular on the use of informants in alimony cases, explains that shaha¯dat istiksha¯f is evidence gathered by the qadi in the course of studying a particular issue (marifat amr min al-umu¯r). He attributes this term to Hanafi jurisprudence. See Shahar 2007, 220–21. 8. Brown 1997, chap. 2. See also Hill 1979, 1, 10, 17, 53, 148. For a discussion on the influence of the French institution called Parquet on the development of the Egyptian public prosecution (niya¯ba), see Hill 1979, 26–33, 57–66. 9. For example, in British law, tort cases have been transferred from jury trials to professional courts. By contrast, in U.S. law, such cases, and especially those of medical malpractice, are still adjudicated by juries (Sahar 2003, 25). The U.S. system, however, allows for “bench trials” in certain circumstances, and in such trials a judge

Notes to Pages 104–107

225

plays the role of fact finder. Nevertheless, even when the judge acts as the fact finder, he is limited to the role that a jury would play—i.e., listening to the evidence that is presented and making a decision without asking any questions of his own or indicating, prior to his final decision, how he feels about the arguments made or the evidence presented. 10. In the plenum of the court, the judges are nevertheless free to ask for further presentations of evidence to satisfy themselves as to the facts of the case. 11. A journal, Expert Evidence, is dedicated to this topic, and the journal Law and Human Behavior devoted an entire volume (June 1992) to it. 12. Arhuma 1999, 28–29 and Zaim 1993, 3, respectively. 13. Uthman 1964, dealing with expertise in criminal law, is a Ph.D. dissertation, law faculty, Cairo University. Abu al-Wafa 1978, a commentary on the Egyptian 1968 Code of Evidence for Civil and Commercial Matters, whose author was a professor in the law faculty of Alexandria University and a practicing attorney at the Court of Cassation and at the Supreme Court, includes a chapter on expertise. Jabir 1991, whose author was a member of the Egyptian State Council (Majlis al-Dawla), focuses on medical reports relating to physical and mental damage caused by criminal action. Shula 1998, by the vice president of the Egyptian Court of Cassation, is a fourhundred-page collection of the decisions of that court relating to expert witnessing. Ajila 2002, by a judge at the Court of Appeals, compares Kuwaiti legislation on expertise with Egyptian court practice. Zaim 1993, by the president of the Bani Malal Appeals Court, discusses expertise in Moroccan legislation. Arhuma 1999, a Ph.D. dissertation, law faculty of Muhammad the 5th University of Rabat, Morocco, focuses on the confrontation between the use of novel technical and scientific methods for the detection of crime and individual rights according to international law. Wadghiri 2001, by a lawyer and religious scholar, discusses expertise in Moroccan law from a comparative perspective. 14. Taylor 1996, 186; Hodgkinson 1990, 7–8. 15. Weinstock 1986, 38, 42. 16. Taylor 1996, 186–91; Sahar 2003, 24–36; Ajila 2002, 5n1. 17. Wadghiri 2001 is an exception. He dedicates a subchapter in his introduction to discussing expertise in the fiqh, and within his discussion of the required number of experts in Western and Arab laws he relates to the same topic in fiqh discourse. That he combined secular legal training with Quran and hadith studies and was a member of the Council of Maghribi Ulama may explain his tendency in this respect. 18. For this opinion, see Uthman 1964, 14–17; Jabir 1991, 55, 57; Zaim 1993, 3 and nn. 2–3; Wadghiri 2001, 13. 19. Uthman 1964, 19–22, 26–28; Jabir 1991, 56–58; Zaim 1993, 3 and nn. 2–3; Wadghiri 2001, 13, 15. A similar opinion, that of the Egyptian jurist Dr. Mahmud Najib Husni, holds that expertise is a means for assessing a piece of evidence (wası¯la li-taqdı¯r dalı¯l; wası¯la li-taqdı¯r uns.ur ithba¯t). Uthman attacks this opinion, on the grounds that dalı¯l itself is an evidentiary means. To say that expertise is an evidentiary

226

Notes to Pages 107–109

means for proving another evidentiary means is illogical (Uthman 1964, 17–19, 26–28; Jabir 1991, 55, 58). 20. Uthman 1964, 22–24. 21. Ibid., 36–54; Jabir 1991, 56. 22. Abu al-Wafa 1978, 16; Wadghiri 2001, 15. 23. In this discussion I confine myself to judicial expertise (khibra qad.a¯iyya; l’expertise judiciaire)—i.e., when the court orders the use of expertise. Two other types of expertise in Arab law are conciliatory/semiofficial expertise (khibra istisha¯riyya/ shibh rasmiyya; expertise officieuse) and expertise by agreement (khibra wuddiyya; expertise aimable). The first is initiated by a person who wishes to prepare himself for an expected lawsuit or by a litigant who wishes to refute the report of the courtappointed expert. The second refers to a nonjudicial context, in which the disputed parties apply to an expert as an arbitrator. In both cases, the expert is regarded as a delegate (wakı¯l) of the parties (Zaim 1993, 3 and n. 1; Wadghiri 2001, 18–20; Taylor 1996, 200). In the past, French court precedents regarded even the court-appointed expert as a delegate of the litigants, on the grounds that the latter participated in his appointment and paid his wages. This position was rejected by French legal literature, on the grounds that the expert derives his status and authority from statute. Unlike a delegate, he may not be fired by the litigants (Wadghiri 2001, 56; Ajila 2002, 14–15). It is worth mentioning that the Moroccan code stipulated that the first priority of the expert is to seek reconciliation between the parties, which reflects a perception of the expert as an arbitrator. This stipulation was dropped from the code in late 2000, but it does not prevent the expert from initiating reconciliation (Wadghiri 2001, 279–80). 24. The roots of that approach may be found in Roman law, where no differentiation is made between regular and expert witnesses. See Wadghiri 2001, 56–57. 25. The Italian legislature, in the 1942 Code of Procedure, substituted the term expert for that of professional adviser (ibid., 58). 26. Ajila 2002, 1–2, 14–15; Uthman 1964, 28. Ajı¯la explains that expertise is a sort of consultation (istisha¯ra)—i.e., the qadi consults with the expert; hence the term consultant/advisory expert (khabı¯r istisha¯rı¯ ), which is used in Egypt nowadays. 27. Wadghiri 2001, 58–59. 28. Ajila 2002, 14–15; Wadghiri 2001, 57–58. 29. Ibn al-Rami 1999, 64–65, 107–8. 30. Ajila 2002, 1–2. 31. Qasa¯ma is a procedure based on the swearing of fifty oaths, aimed at establishing liability for a homicide with an unknown perpetrator. See Peters 2005, 195. 32. Ibrahim 1985, 43–54. This is also the opinion of Hashim, a Saudi Arabian professor of law, who refers to expertise as “professional inspection,” mua¯yana fanniyya (Hashim 1988, 321–25). In the Sudanese 1983 Islamist legislation, it is indicated that in addition to the probative means of the fiqh (acknowledgment, the plaintiff ’s evidence, the defendant’s refusal to swear an oath), circumstantial evidence, documents, and expert testimony are also acceptable (Layish and Warburg 2002, 147).

Notes to Pages 109–111

227

33. Uthman 1964, 64–65. 34. Unlike those countries, Saudi Arabia has not regulated the operation of experts by state law. The Saudi courts consult certain groups of experts, such as “assessors of wounds” (muqaddiru¯ al-shuja¯j) and professional councils, titled Hayat al-Nazar, which were established following a governmental decree in 1972 (Hashim 1988, 82–83, 326). 35. For a discussion of the content of articles 211–41, see Ibrahim 1985, 268–76. 36. Ibid., 276. 37. The French Code of Criminal Procedure requires that the expert be nominated from a national list kept by the Court of Cassation. In civil cases, the courts are free to nominate any competent professional to serve as an expert, yet, for considerations of administrative convenience and control over quality, the courts prefer to nominate experts who are listed with the appellate courts and the Court of Cassation. There are strict prerequisites for inclusion in those lists, and such inclusion confers considerable professional prestige on the expert (Taylor 1996, 194–95; Zaim 1993, 3). On lists of experts in Germany, see Timmerbeil 2003, 173–74. 38. In Morocco, a representative of the Ministry of Justice heads a committee that convenes once a year to update the list of experts. The experts who are certified to appear before the Moroccan courts have their own professional organization (Zaim 1993, 3–9). 39. Taylor 1996, 211n303. In Britain, the Academy of Experts keeps lists of experts in various occupations, which helps in selecting the appropriate expert. In the United States, private referral agencies maintain lists of experts, advertised in the style of the Yellow Pages. Inclusion in such a list involves the payment of a fee by the professional. Also, various occupational unions publish lists of experts (Sahar 2003, 50). 40. Wadghiri 2001, 61. 41. The president of the council is the permanent delegate (wakı¯l) of the Ministry of Justice, and its members are the general director of the court administration, the head of judicial inspection at the Ministry of Justice, the general director of the Expert Administration, and the head of the experts’ inspection department. 42. The members of the committee are the general director of the Expert Administration, a judicial inspector, the head of the Professional Office, and the inspector of the relevant department within the Expert Administration. 43. The president of the council is the permanent delegate of the Ministry of Justice, and its members are the attorney general, a judge from the Cairo Court of Appeals, the general director of the Expert Administration, and the head of one of the expert offices. 44. The president of the council is the permanent delegate of the Ministry of Justice, and its members are the attorney general, a judge from the Cairo Court of Appeals, the Chief Forensic Physician, the chief inspector of the Forensic Medicine Authority, the head of the Cairene forensic medicine department, and a professor of forensic medicine from the Cairo University.

228

Notes to Pages 111–112

45. The president of the council is the permanent delegate of the Ministry of Justice, and its members are the attorney general, a judge from the Cairo Court of Appeals, the Chief Forensic Physician, and the head of one of the forensic medicine departments. 46. The president of the court heads the committee, and other members are the attorney general and one of the judges. In cases in which a decision to remove an expert from the list or to institute disciplinary procedures is appealed, two more judges are added to the committee for the appellate hearing. In Morocco, both the experts and the courts in the jurisdiction within which they work submit annual reports on their performance. In cases of suspect or poor performance, an expert may be removed from the list (Zaim 1993, 31–33). 47. A 1967 decree by the Moroccan Ministry of Justice called on the judges to be assisted by the traditional experts (urafa¯ and ahl al-bas.ar) in disputes whose understanding does not require special professional expertise—such as disputes between neighbors, making an accounting between disputing merchants, or applying traditional customs. This decree was abolished in 1979. In 1975 the addition of new urafa¯ and umana¯ to the lists kept by the courts was stopped, but the Ministry of Justice permitted those who were already on the lists to continue functioning, conditional upon swearing an oath each time they were appointed to submit a report (Zaim 1993, 39–40n3). 48. On expert qualifications in Morocco, see ibid., 157–61. 49. An official expert does not have to repeat this oath each time he is nominated to investigate a specific case. This may apply also to registered experts. By contrast, an unregistered expert, upon being nominated to give his opinion in a specific case, has to swear an oath in front of the Judge for Temporary Issues (Qadi al-Umur al-Waqtiyya) to the effect that he will carry out his duty in a fair and reliable way (art. 139 of the 1968 law). The same is true for Morocco (Zaim 1993, 23–24, 26–30). In criminal cases, the Egyptian experts have to swear such an oath in front of the investigating judge (art. 86 of the Law on Criminal Procedures, Qanun al-Ijraat al-Jinaiyya). The Ordinance on the Organization of the Sharia Courts (Law no. 78 of 1931) does not mention any need for the expert to swear an oath. Ibrahim justifies this provision, on the grounds that the expert is a “clarifying witness” (sha¯hid istiksha¯f ); he is not obliged to use the phrase “I testify” (ashhadu) when testifying in the court, and therefore no oath is demanded from him. The experts who operated within the sharia courts were the same as those who operated within the indigenous courts, and they swore an oath upon taking their position in the indigenous court (Ibrahim 1985, 276). The Court of Cassation has established that if a judge, intentionally or unintentionally, has skipped the stage of swearing in the expert and yet responded to the content of the expert’s report, the absence of the oath does not invalidate the whole legal process, because the oath is not part of the Public Order, al-Niz.a¯m al-A¯mm (Muhammad 1982, 550; Shula 1998, 47, 237). On the formula of the oath, see Ajila 2002, 44. On the old procedure in French law of requiring the expert to take an oath, see Taylor 1996, 190, 197.

Notes to Pages 113–114

229

50. Similarly, in French law the grounds for removing experts from the approved lists, known as radation, are limited and require a demonstration of the expert’s incapacity or professional misconduct. This option is therefore theoretical rather than practical (Taylor 1996, 197). 51. Ibrahim 1985, 266–69. Ajila (2002, 11n1) specifies the professional fields in which the assistance of experts is required. 52. Muhammad 1982, 549; Shula 1998, 81–83, 90–91, 185, 249; Ajila 2002, 29–30. The same is true for Morocco (Zaim 1993, 37). As in Egypt, in French law the judge delegate may require from the expert the verification of plain fact; this is the simplest mode of expertise, called Constatations. It is derived from a very old practice in French law in which the court designated the court clerk to conduct fact-finding for the benefit of the court. See Taylor 1996, 197–98. Also as in Egypt, French law forbids the expert to explain the law or to point to the legal significance of his technical or scientific findings, which is the sole responsibility of the court. See Taylor 1996, 192, 202–3. This last principle is also shared by common-law systems, in which it is well accepted that experts should not give their opinions on the “ultimate issue,” even though this may entail expert knowledge (Hodgkinson 1990, 8–9; Sahar 2003, 56–62; Coady 1992, 298–301). 53. Muhammad 1982, 549; Shula 1998, 9–13. French law takes the same approach (Taylor 1996, 192–93) as the British and Israeli legal systems. Moroccan law follows the same path, but it specifies four cases in which it is compulsory to appoint experts: embezzlement cases; criminal cases in which it is feared that material evidence at the crime scene may change or disappear, and the defendant asks to appoint his expert; a wife’s claim for judicial dissolution of marriage on the grounds of her husband’s malady; and a request for the sale of a confiscated property (Zaim 1993, 42–44). The attitude of U.S. law is more lenient: the expert is always permitted to testify, but the admissibility of his testimony is conditional upon its meeting certain threshold conditions (Sahar 2003, 28–29). 54. Ajila 2002, 27–28. 55. Ibid., 20, quoting Mah.mu¯d Jama¯l al-Dı¯n Zakı¯, Al-Khibra fil-Mawwa¯d alMadaniyya wal-Tija¯riyya (1990), 62; Zaim 1993, 37n2, 38. As I argued in chapter 2 (sections 4 and 6), Islamic classical jurists express the same criticism regarding the involvement of experts in purely legal issues. According to Taylor (1996, 191, including n. 85), French law during the early twentieth century faced a similar problem, and the 1944 Code of Civil Procedure made provisions for preventing the judges from unnecessarily delegating the task of fact-finding to the experts. In Germany, too (Timmerbeil 2003, 175–76, 180–81), although the Civil Procedure Code prohibits the judge from delegating his decision-making authority to the expert, critics argue that the court expert is de facto a decision maker, because the judge is excessively dependent on him (in 95% of the cases, the expert’s opinion is accepted by the court); and that although the expert is formally the judge’s adviser, in practice he decides the case. 56. The same stipulation appears in Syrian law (Hashim 1988, 328–29).

230

Notes to Pages 114–116

57. The same stipulation appears in Iraqi law (ibid.). 58. Yusuf 1987, 394. 59. Taylor 1996, 199; Wadghiri 2001, 163–64. Moroccan law follows recent French law (Zaim 1993, 44; Wadghiri 2001, 165–67). In Germany, the civil court nominates one expert (Timmerbeil 2003, 173–74). 60. Wadghiri 2001, 161–62, 164. 61. Ibrahim 1985, 269; Zaim (1993, 44) writes that Abd al-Wahhab al-Ashmawi holds this opinion, but he is contradicted by Ahmad Abu al-Wafa, who argues that it is permissible to appoint two experts. The Egyptian Court of Cassation has established that if the regular court delegates the nomination of experts to the experts’ office attached to the court and the office subsequently, on the basis of its professional evaluation, finds it appropriate to nominate two experts or an uneven number of experts, it is not considered an infringement of the law, because the office itself is considered the expert in the case (Shula 1998, 26–27). The Court of Cassation, however, holds that if the court nominates three experts, it is required that all of them partake in all the proceedings leading to the issuance of the report. If only two of them actually took part, the report is canceled (Shula 1998, 22, 163; Ajila 2002, 19, 27, 34). The same rule applies in French law (Taylor 1996, 208). 62. Uthman 1964, 102–5. 63. According to the French Code of Civil Procedure, the parties were entitled to select an agreed-on expert within three days from the nomination of an expert by the court. This option was abolished by the 1944 code, on the grounds of preventing an unnecessary delay in the proceedings of the case and of maintaining the expert’s position as an officer of the court (Taylor 1996, 191n89; Wadghiri 2001, 97–98). 64. Shula 1998, 134ff. For similar stipulations in Germany, see Timmerbeil 2003, 177–79. 65. For similar provisions relating to the deposit in French law, see Taylor 1996, 210; and in Morocco, Zaim 1993, 47–49. 66. See the same in French law (Taylor 1996, 196) and in Morocco (Zaim 1993, 25). 67. The same procedure, known as recusal, exists in French law (Taylor 1996, 196–97), in Germany (Timmerbeil 2003, 174), and in Morocco (Zaim 1993, 52–54). 68. See the same in French law, U.S. law (Taylor 1996, 209–10, 212), and Moroccan law, which has a price list for various physical inspections and laboratory tests (Zaim 1993, 10–22). 69. See the same in French law (Taylor 1996, 203–6) and in Morocco (Zaim 1993, 55–61). Articles 85 and 87 of the Egyptian Code on Criminal Procedure prescribe that the investigating judge (qa¯d.¯ı al-tah.qı¯q) shall personally supervise the expert’s activity. Hill (1979, 59–65) argues that such an official no longer functions in the Egyptian system, and that the public prosecutor is solely responsible for the investigation of criminal cases. That such a functionary is still mentioned by the code is apparently a remnant of the late nineteenth-century reforms, in which the French institution of juge d’instruction was incorporated within the Egyptian codes. This institution was

Notes to Pages 116–118

231

dropped at the beginning of the twentieth century, as a result of a decision by the British judicial adviser. 70. Shula 1998, 63–65. 71. According to the Court of Cassation, the expert’s protocols, including the litigants’ claims, are considered part and parcel of the evidentiary material of the case (ibid., 67). On similar provisions regarding the expert’s report in French law, see Taylor 1996, 193, 207–8; and in Morocco, Zaim 1993, 62–65. 72. The Court of Cassation has established that a court may decline a request by a litigant to summon the expert for investigation if it feels that doing so is redundant (Shula 1998, 67, 276). In French law, the expert may be summoned to the court to answer judges’ questions concerning his report; but unlike the U.S. system, he is not cross-examined by the litigants’ advocates (Taylor 1996, 193–94, 212). In Germany, the questioning of the court-appointed expert by the parties is polite, because an aggressive examination would imply that the litigants contest the judge’s decision in selecting this particular expert (Timmerbeil 2003, 175). For Morocco, see Zaim 1993, 66–67. 73. On similar provisions in French law for amending the expert’s report or nominating a new expert, see Taylor 1996, 208–9. 74. Arhuma 1999, 32. 75. Ibrahim 1985, 272. 76. Muhammad 1982, 553–54; Shula 1998, 14–15, 97–100, 104, 115–16, 128, 134–35, 144, 248, 284. This principle of the sovereignty of the court vis-à-vis the expert—i.e., that the court is not obliged to use the expert’s findings and that the expert’s opinion is not binding on the court—is well established in French law (Taylor 1996, 192–209) and also in Israeli law (Sahar 2003, 120–30). 77. Shula 1998, 37–40; Muhammad 1982, 268; Naveh 1997, 244–45. 78. Shula 1998, 221–23; Hill 1979, 142. 79. Shula 1998, 218–19. 80. Ibid., 189–90, 243. 81. Ibid., 186–87, 206. See also Wuerth 2008, 278–82, on physicians working at the Department of Forensic Medicine who conduct autopsies on bodies of prisoners who had apparently died as a result of police brutality. There are rumors that in establishing the determinant cause of death, some of these official physicians cover up for the police, which causes the victims’ relatives to approach external medical experts in order to refute the conclusions of the official death certificate. 82. Shula 1998, 254. 83. Ibid., 137–38. 84. See, for example, a case of judicial divorce on the grounds of the husband’s impotence, discussed in the next chapter. While the forensic physician proposed psychological impotence as a possible explanation, without concluding as to its certainty, the judge subsequently relied on this opinion as if it were a matter of scientifically established fact.

232

Notes to Pages 118–124

85. Zaim 1993, 69–70. 86. Brown 1997, 192, 224, 229; Hill 1979, 24–25, 110–11, 115, 140. Rosen (1989, 30–31) writes that Moroccan qadis strive to rely both on their own experts and on external experts. They take advantage of their right, approved by the Moroccan Supreme Court, to ignore the expert’s opinion so long as they provide reasons for doing so. The qadis’ tendency to rely on medical information increases in cases in which the litigants are not closely connected or in which their relationship is tending toward dissolution rather than reconciliation. 87. Cf. the opinion of Rabbi Deichovsky (1997, 333–34), who argues that according to Jewish halakha it is permitted to accept the opinions of partisan expert witnesses, but it is preferable to have one court-appointed expert whose wages are paid equally by the litigants, thereby saving the litigants the expense of two separate expert opinions.

Chapter 5 1. Mansur 1999, 33–37; Rispler-Chaim 1993, 62–63. 2. Mansur 1999, 51–54; Rispler-Chaim 1993, 64–65. In its fourteenth meeting (in 1995), al-Majma al-Fiqhi al-Islami repeated the same resolution. 3. Mansur 1999, 54–55. 4. For a detailed analysis of this reform and its application in the sharia courts, see Shaham 1997, 53–67. 5. El-Alami 1992, 84–85. The Court of Cassation ruled that in criminal cases, in the absence of an official birth certificate, a medical expert, not the court, should determine the age of the accused (Shula 1998, 218–19). 6. D-22, D-40. See also D-21, D-44. All references to court decisions are made in abridged form—for example, D-22 stands for Decision no. 22. For the full list of decisions, see the appendix. 7. Anderson 1951, 115–16; Layish 1975, 20; White 1978, 55. On the criminal liability of a physician who intentionally provides a false certificate of age, see Ajuz 1998, 417–25. 8. D-3, D-2, D-6. See also Ajuz 1998, 422–23. 9. Ajuz 1998, 418, 424. 10. For a detailed discussion of this reform and its application, see Shaham 1997, 114–15, 119, 125–26. 11. D-30. For a similar decision by a Cairo national court of first instance from October 19, 1957, see Abd al-Tawwab 1986, 582; Abd al-Tawwab 1997, 410. 12. D-28. 13. Hill, Zaalouk, and Azer n.d., 59. 14. Cf. chapter 3, section 2 of the present text. 15. Jaziri 1980, 4:167, 171. See also Abd al-Tawwab 1997, 98, 409–10, 466. 16. D-17, D-19.

Notes to Pages 124–128

233

17. D-18. 18. Abd al-Tawwab 1986, 587. 19. Abd al-Tawwab 1997, 410–11. 20. Abd al-Tawwab 1986, 582–83; Abd al-Tawwab 1997, 411. 21. Abd al-Tawwab 1986, 584; Abd al-Tawwab 1997, 416–17. 22. Abd al-Tawwab 1997, 412–15, 419. 23. Dupret 2006, 152–68. 24. Shaham 1997, 122–23, 131–32, and the court cases mentioned there. 25. See ibid., 81, 92–93, and the court cases mentioned there. Cf. a similar Moroccan case from the 1960s in which the wife presented a medical certificate to the effect that her husband had sodomized her. The court ruled that the testimony of the physician had failed to establish the source of the wife’s injury, and that only the female experts affiliated to the court were able to determine such things (Rosen 2000, 92). 26. For a detailed discussion of this reform and its application in the courts, see Shaham 1997, 178–83, 186–91. 27. On decisions to extend the mother’s custody on the basis of medical reports, see D-25. In this case, the qadi said that although the girl appeared healthy, his impression did not prevail over a medical report, since there were hidden diseases that only a professional physician could discover. See a decision of the court of Sayyida (Cairo) mentioned in D-36, D-23. On contradictory reports or contradictory interpretations of the same report by different courts, see D-33. In this case, the official medical inspector examined the child. According to the court of summary justice, since the medical report affirmed that the child did not need special attention, he had to be in the custody of his father. The court of first instance reversed this decision on appeal, arguing that the medical report affirmed that the child suffered from fears and therefore had to stay with his mother; D-24. 28. D-36. 29. D-32. In this case, the qadi argued that Egyptian custom made it easy for a person to obtain a medical report that serves his interests. This phenomenon was a source of confusion and difficulty for the courts. In the case before him, the qadi rejected the medical opinions of two physicians, on the grounds that they had not been nominated by the court, had not testified before the court under oath, and were not bound by the statutory legislation pertaining to professional experts; D-39, D-26. In this case, medical certificates supplied by a Christian physician to the effect that the girl suffered from bilharzias were rejected by the qadi, on the grounds that the Ministry of Justice had ordered the courts to rely exclusively on the opinions of Muslim physicians. 30. D-41, D-20, D-29, D-27, D-34. 31. D-39, D-32, D-25: a decision by the Court of Sayyida (Cairo) mentioned there; D-26, D-31. 32. D-37. 33. For a detailed explanation of the medical techniques for identifying an ongoing pregnancy, see Amara 1937, 18–23.

234

Notes to Pages 129–135

34. D-4. 35. For a detailed discussion of this judicial reasoning, see chapter 6 of the present text. 36. D-9. 37. The guardian courts, established in 1873, had the authority to oversee the financial interests of Muslims who lacked full legal competence, such as minors, the insane, and missing persons (Shaham 1997, 12). 38. D-5. 39. For a similar decision, see D-1. In this case, the Ministry of Justice asked the court to send a woman to a reliable woman for a pregnancy examination. 40. Aware of such fraudulent attempts, Amara (1937, 23–24, 27–29) explains the physical signs that physicians can rely on for ascertaining a past pregnancy or birth. 41. D-35. 42. Abd al-Tawwab 1997, 477–78; Jaziri 1980, 4:400–402. 43. See the detailed discussion in chapter 6 of the present text. 44. For similar cases, see D-47, in which the qadi incorporated the full text of the detailed medical report in his decision. According to the report, there were no signs of an earlier pregnancy on the woman’s belly, breasts, or sexual organs; D-7. See also the decision of the Mansura appellate court (Appeal no. 12, 1977) of 8 May 1978, cited in Banna 1984, 191–92. In this case, the wife did not bring evidence that she had given birth, and it was established that she was barren. As a result, the court granted her husband’s request to deny his paternity. 45. D-46. 46. Abd al-Tawwab 1997, 474. In another context, the official medical inspector examined a woman accused by her husband of undergoing an abortion. In the report, the physician wrote that it was impossible to ascertain the occurrence of abortion and that the signs found on the woman were similar to those found on any woman who had delivered a baby. Taking this report into consideration, both the lower court and the Court of Cassation granted a divorce to the woman on the grounds of the injury caused to her by her husband’s accusations (Abd al-Tawwab 1997, 203). 47. On the long process leading to the acceptability of X rays as reliable evidence in the U.S. legal system, see Golan 2004, chap. 5. 48. On the history of the school for midwives and their relationships with other medical practitioners, see Fahmy 1998b, especially 41–63. 49. For a useful summary of this concept and the opinions of the law schools with respect to it, see Mahmasani 1948, 2:135–47; Linant de Bellefondes 1965, 1:262–77; Yanagihashi 1998. 50. The theory is not limited to sick persons per se, but includes other people facing death, such as a soldier going into battle, a passenger aboard a boat when the sea is extremely stormy, and a woman giving birth (Mahmasani 1948, 2:136; Coulson 1971, 263; Yanagihashi 1998, 326). An extension of the same theory exists in Jewish

Notes to Pages 135–137

235

halacha (Cohn 1991, 925–26). However, in the discussion that follows, I limit myself to sick people. 51. Mahmasani 1948, 2:137. Jewish halacha recognizes the concept of the “mortally sick person” (shkhiv me-ra), but his freedom of transaction is not circumscribed as in Islamic fiqh. In the halacha, a gift of property becomes operative only after the death of the donor. The donor is entitled to use the property until his death, but he is prohibited from selling it, because, upon signing the donation deed, he transfers the ownership to the recipient of the donation. The difference between “a gift by a healthy person” (matnat barı¯ ) and “a gift by a mortally sick person” (matnat shkhiv me-ra) is that the first is voided if not put in writing, whereas the second is valid also if conducted orally, on the grounds that a person on the verge of death does not have the time to draw up a document (Cohn 1991, 920, 924–26). 52. Mahmasani 1948, 2:146. The juristic opinion that the divorcee keeps her inheritance rights relies on traditions according to which the second and third Righteous Caliphs, Umar b. al-Khattab and Uthman b. Affan, ruled thus. See Malik 1987, 180. 53. Powers 2002, 215. According to another legal opinion from the twelfth century (ibid.), a person on his deathbed “sold” his female slave to his wife. The transaction was registered, but the transfer of the sale payment was not witnessed. After the person’s death, the transaction was contested before the qadi of Cordoba, Ibn Hamdin. After consulting with two muftis, Ibn al-Hajj and Ibn Atab, he voided the sale and ordered that the slave be returned to the deceased’s estate. In Wansharisi 1981, there are numerous legal opinions relating to mortal sickness (s.v. “marad. al-mawt” in the index of vol. 13). 54. Both Linant de Bellefonds and Coulson, writing on this topic, admit the difficulty in understanding the second criterion in the context of the first one. Yanagihashi attempts to explain the difficulty on the grounds that the theory of mortal sickness is a result of various stages of development of a malady, each of which had a different legal purpose (Yanagihashi 1998, especially 326–30). 55. Ibn Qudama (1990, 8:489–90) provides a detailed discussion of diseases. For Hanafi sources, see Ibn Nujaym n.d., 4:51; Fatawi Hindiyya 2000, 1:498; Ibn Abidin 1966, 3:383–85. For Maliki sources, see Malik 1999, 3:796–97; Asyuti 1955, 1:445. For a Shafii source, see Shirazi 1996, 3:720–21. See also Ibn Hazm 1984, 8:409; Coulson 1971, 262. 56. Ibn Qudama 1990, 8:490–91; Shirazi 1996, 3:721; Asyuti 1955, 1:445; Coulson 1971, 264. 57. Buh.u¯th fil-Fiqh al-Mua¯s.ir, part 2, p. 8 of 11, in: http://www.aalulbayt.org/ html/ara/books/boohoos-feqh-02/37.html (printed 11/10/2004); See also Eighth Fiqhi Seminar, p. 3, in: http://ifa-india.org/semi8.htm (printed 11/10/2004). 58. Cf. Maimonides, who defines shkhiv me-ra as a sick person who loses his strength to the degree that he is not able to walk in the market and consequently is bedridden (Cohn 1991, 925).

236

Notes to Pages 137–144

59. Ramli 1893/94, 2:101. 60. Dropsy, or edema, is an abnormal excess accumulation of serous fluid in connective tissue or in a serous cavity. 61. Fatawi Hindiyya 2000, 1:497; Ibn Nujaym n.d., 4:64. 62. See also Mahmasani 1948, 2:135. Similar definitions appear in Qadri Pasha’s codification of Hanafi family law (arts. 266, 268). See Ibyani n.d., 1:375–77. 63. See, for example, article 477 of the Egyptian 1949 Civil Code and its judicial interpretation in Ibrahim 1964, 539–41. According to article 11.3 of the 1943 inheritance law, a wife divorced by a mortally sick husband inherits from him if she is still observing her waiting period at the time of her ex-husband’s death. The Court of Cassation decided likewise (Muhammad 1982, 57). While Egyptian law and Syrian law hold that the divorce itself is valid, Iraqi law holds that the divorce is void (Nasir 1990, 72). The classical theory of mortal sickness is applied in almost all the Muslim countries, except for the pre-1979 Iranian civil law, which abandoned this theory altogether. In the Anglo-Muhammadan law applied in India, it was required to establish that the deceased expected death (Coulson 1971, 279). 64. Abu Zahra 1957, 319. 65. Abu Zahra 1976, 349, 353–55. 66. See the legal opinion of Hasan Mamun in topic no. 1115: “The Criteria for Mortal Sickness” (marad. al-mawt wa-miya¯ruhu). 15/12/1958, in http://www.kl28 .com/fat1r.php?search=2448 (last accessed 13 April 2009). 67. Muhammad 1982, 759. 68. This legal presumption informs a Maliki opinion (Ibn Rushd 1987, 2:1118) according to which, if there is conflicting evidence—on the one hand that the transaction was made in a state of health, on the other that it was made in a state of mortal sickness—the former prevails (shaha¯dat al-s.ih.h.a amal min shaha¯dat al-marad.). 69. Tucker 1998, 90. 70. D-81, D-82, D-83. 71. D-78, D-79. 72. For the references relating to the six sharia court cases, see the appendix, D-78 to D-83. 73. D-80. 74. For references relating to the thirty civil-court cases, see the appendix, D-48 to D-77. 75. D-57. 76. It is unclear why the qadi demanded the oath from Zahra, who carried the burden of proof. The civil judge who summarized the progression of the case in the sharia court said that the latter had not based its judgment on the testimonies but rather on the sharı¯ procedure, according to which it was required to accept the woman’s (the divorcee’s) version, supported by her oath. 77. D-54. 78. Civil Court of Cassation, Case no. 56, year 22, in D-73.

Notes to Pages 144–156

237

79. In another place in the judgment document, other dates are mentioned: contraction of the “sale” on 4 June and confirmation of the “sale” in court on 29 July. 80. Usually caused by severe kidney disease, uremia is an accumulation in the blood of constituents normally eliminated in the urine, producing a severe toxic condition. 81. This is probably a mistake, because the doctor’s report was from December 1944. 82. D-59. 83. Did Dr. Sami lie with respect to the date of his visit to the patient? Why was he a witness to the dedication of the waqf if his medical treatment of the patient started only later? Perhaps he was befriended by the deceased’s son and wished to help him win his court case? 84. Two cases in which the civil courts quoted Ibn Abidin are D-49 and D-62. 85. See chapter 4, section 4 of the present text. 86. All nine cases (D-49, D-57, D-67, D-68, D-75, D-77, and three Court of Cassation cases mentioned in Muhammad 1982, 759) that discuss the criteria of mortal sickness mention as a criterion the strong likelihood of death created by the disease. The ability to attend to one’s business out-of-doors is defined as a criterion four times (in one of the four, only if the mortality of the sickness is unknown). Among the other criteria was the sick person’s sensing the imminence of his death (five times). 87. In D-78: general weakness, old age, and nerve paralysis, but no mention of medical references; D-80: a visit to hospital was indicated, without any further details; D-81: death certificate from the municipality of Alexandria—cause of death: chronic bronchitis and old age; D-82: a claim that the deceased was bedridden during the last six months of his life, but no medical references.

Chapter 6 1. D-8. All references to court decisions are made in abridged form—for example, D-8 stands for Decision no. 8. For the full list of decisions, see the appendix. 2. Lia¯n takes place in cases of unproved charges of adultery by the husband against the wife, and its result is dissolution of the marriage through a process of mutual imprecation (Shaham 1997, 155–56, 158–59). 3. The Zaydis prescribe four years. The Twelver Shiites and the Zahiris prescribe nine months. In Roman law, the upper limit was the tenth month of pregnancy (Ghanem 1987, 54, 59–60). In Jewish law, the maximum pregnancy period, according to the Talmud, is twelve months. Similarly to the logic of modern Egyptian legislators, the Jewish extension of three months was aimed to cover unique and exceptional cases (Westreich 1996, 484–89). 4. Shaham 1997, 155–56. 5. Kaplan, Brautbar, and Nelken 1979–80, 46. 6. Ghanem 1987, 55.

238

Notes to Pages 156–159

7. Zafran 2002, 315–17. 8. Glennon 2000, 562–65; Dallas 1988, 369–71. 9. Glennon 2000, 563. 10. The term presumed father refers to the legal husband of the mother at the time she conceived her child. 11. Ibn Qayyim n.d., 17, 225. 12. Ibrahim 1985, 469. 13. Contrary to the Hanafis, the Malikis do not accept even an acknowledgment of paternity by a man if his place of abode is so distant from that of the mother as to make the meeting between them implausible; if he has never been married; or if he has never had a female slave—unless his acknowledgment is supported by an external indicator (dalı¯l kha¯rijı¯ ), which might be a circumstantial evidence in the form of physiognomy (ibid., 468). 14. Ibn Qayyim n.d., 17, 212, 215, 217, 224; Ibrahim 1985, 468–69. 15. According to the hadith, Umar b. al-Khattab consulted a qa¯if in the case of two men who slept with the same woman at the same period of her purity (Wadghiri 2001, 41). 16. Mawardi 1994, 17:380. 17. In the hadith it is reported that the Prophet’s Companion Abu Musa al-Ashari (d. ca. 662), sitting as a judge, appointed a qa¯if in such a case. 18. Ibrahim 1985, 469–71. 19. EI2, s.v. “K.iya¯fa.” In the hadith it is reported that Ibn Abbas and Anas b. Malik each consulted a qa¯if upon suspecting their paternity of a child born to their female slaves (Wadghiri 2001, 41). According to Ibrahim (1985, 470), the prevalent (mashhu¯r) Maliki opinion is that physiognomy applies only to children of female slaves; but a minority opinion (of Abd Allah Ibn Wahb [Egyptian; Malik’s Companion; d. 813], al-Lakhmi [Ali b. Muhammad; from Qayrawan; d. 1085], and Ibn Yunus) holds that it applies to children of free females as well. 20. Al-Haytami n.d., 2:333. Two similar fatwa¯s are found in al-Ansari 1983, 318: The first is about a slave owner who permitted his male slave to sleep with his female slave without marrying them and without transferring the ownership of the female slave to the male slave; after the female slave gave birth, the identity of the father was not clear. The second fatwa¯ is about a man who bought a female slave and slept with her before ascertaining that she had menstruated (min ghayr istibra¯). Later he sold her to another man, who also slept with her before ascertaining that she had menstruated. After she bore a child, both men denied the paternity. In Wansharisi (1981, 3:262) we find a question about two males who slept with the same female slave during the same period of her purity. The questioner asks how paternity is established if a qa¯if is not found in the surrounding area. The mufti answers: It is required to travel with the child to a qa¯if ’s place of abode. 21. Shefer 2009, 146–47. I thank my colleague Miri Shefer for making the manuscript available to me and for permitting me to cite it.

Notes to Pages 159–164

239

22. Rosen 1989, 24, 45, 78; Rosen 2000, 41, 51. 23. Ibn Majuz 1984, 219. 24. http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006). 25. Kaplan, Brautbar, and Nelken 1979–80, 50–51. 26. Ibid., 47–50. 27. On the statistical probability of the test for denial of paternity, see ibid., 52–54. This revolutionary development ended the long and bitter scientific debate, which had serious legal repercussions, on the ability to distinguish between the blood of animals and that of human beings (Golan 2004, chap. 4). 28. Amara 1937, 45–52. I thank Liat Kozma for bringing this source to my attention. Dr. al-Jammas (1993, 156–63), an expert on internal and heart diseases, after discussing in detail the scientific means for the establishment of paternity, expresses his opinion that further scientific developments will soon enable the courts to establish paternity with certainty. See also al-Tu¯nı¯, Mah.mu¯d, Ilm al-Ajra¯m al-H . adı¯th (1960), 386ff., as cited in al-Banna 1984, 189. I was unable to consult the work of al-Tuni. 29. For a detailed analysis of this test and its probability in the context of paternity, see Kaplan, Brautbar, and Nelken 1979–80, 55–63. The chance of finding two persons with identical HLA typing is one in a thousand, while in blood-group tests the chance is 450 in 1000 for blood group O and 400 in 1000 for blood group A (Sahar 2003, 198). 30. Quoted in Kaplan, Brautbar, and Nelken 1979–80, 74. 31. Hodgkinson 1990, 273. 32. Stoler and Plotzki 2001, 143. 33. In the Israeli court system, the number of markers considered sufficient is six. Stoler and Plotzki require at least nine. In the U.S. legal system, the number is thirteen, and the aspiration is to reach seventeen. In the O. J. Simpson trial, the number of inspected markers was thirty-three (ibid., 156, 162). 34. For a detailed analysis of the scientific, technical, and statistical elements associated with DNA testing, see ibid., 144–53; Sahar 2003, 197–99. 35. Glennon 2000, 557–58, 566. 36. Ibid., 559–62. 37. The term putative father refers to the extramarital biological father. 38. Glennon 2000, 566. 39. This is the position of the 1973 Uniform Paternity Act. See Dallas 1988, 369–73. 40. Ibid., 373–75; Glennon 2000, 566–70. 41. Glennon 2000, 556. 42. In R v. R (blood test: jurisdiction): family division, Sir George Baker President, 12–13 April, 1973. See All English Reports 1973, 3:933–34. In this case the court declared, on the grounds of blood-group tests, that the husband was not the father of the boy.

240

Notes to Pages 164–168

43. Hodgkinson 1990, 270, 274; Kaplan, Brautbar, and Nelken 1979–80, 65–67. 44. Hodgkinson 1990, 272–73. 45. Kaplan, Brautbar and Nelken 1979–80, 67. 46. Ibid., 67–68. 47. Judge Cohn in Plonit v. Almoni (1961) and Judge Alon in Sharon v. Levi (1978). See ibid., 51; Zafran 2002, 318–20, 336. 48. Zafran 2002, 323–24; Haaretz, 18 May 2004, A-14. 49. Weitzman 2004, 13–14. 50. The results of scientific tests of paternity are usually expressed in probabilistic terms. The legal probability applied by the courts is lower than the mathematicalstatistical one. The court decides the required level of probability for each particular paternity case, considering the entire weight of evidence and the gravity of the case at hand (Hodgkinson 1990, 276–77). 51. Kaplan, Brautbar, and Nelken 1979–80, 68–69. 52. Glennon 2000, 556, 567; Kaplan, Brautbar, and Nelken 1979–80, 69–70. 53. Kaplan, Brautbar, and Nelken 1979–80, 70. 54. Ibid., 70–71. 55. Zafran 2002, 318–20, 336. 56. Hodgkinson 1990, 275, 278. 57. Kaplan, Brautbar, and Nelken 1979–80, 71. 58. Ghanem 1987, 93. 59. Ibrahim 1985, 473–75. 60. Rida 1970, 3:836–41. 61. In 1999 a study by the American Association of Blood Banks discovered that in 30 percent of 280,000 blood tests performed to determine paternity, the man tested was not actually the biological father of his children. This finding has raised some difficult ethical issues, not the least of which is the growing movement of men who are fighting what they call “paternity fraud.” In a number of cases, men have paid years of child support only to find out later that the children they thought were theirs were in fact fathered by another man when their wives (or girlfriends) were unfaithful. State governments have begun, slowly, to respond to this issue. Georgia passed a law in 2002 that allows courts to terminate the child support obligations of men who can prove they are not the fathers; Maryland allows an unlimited time period for challenging paternity; and the legislatures of other states have considered similar measures. See http://atheism.about.com/library/FAQs/phil/blphil_ethbio_patfraud.htm (last accessed 31 May 2005). 62. On absurdist cases of affiliation of children to men who could not be their fathers and the resulting catastrophes in the realms of marriage and inheritance, see Rida 1970, 3:836–41. 63. In his family law codification, Qadri Pasha (1928/29, art. 332) writes that the maximum period of pregnancy is two lunar years (which is the Hanafi position), but that the most common length of pregnancy is nine months.

Notes to Pages 168–171

241

64. For scientific explanations for the duration of pregnancy, see Amara 1937, 16–18. The period of one year in the 1929 law is also prescribed by the Mudawwana, the Moroccan Code of Personal Status (arts. 76, 84). This code stipulates that if the pregnancy of the divorcee or widow is still suspected after the elapse of one year from the date of divorce or the husband’s demise, the court may have her examined by medical experts. Their opinion informs the qadi’s decision whether to terminate the waiting period or to prolong it until clarification of the situation. Rosen (2000, 92) comments that the code does not specify whether the experts shall be licensed physicians or, as in the past, a woman knowledgeable in matters relating to females—i.e., arı¯fa. The French civil code prescribes a maximum pregnancy period of 300 days, the Scottish courts 305 days. British courts during the first half of the twentieth century legitimized children born after pregnancy durations of 331, 349, and 364 days (Ghanem 1987, 54–55). 65. Shaham 1997, 156. 66. For a detailed discussion, see ibid., 156–64. 67. D-10 to D-16. For additional decisions by the Court of Cassation, see Muhammad 1982, 70–79; Abd al-Tawwab 1986, 751–63. According to Naveh (1997, 230), the Court of Cassation adopted Hanafi rules of evidence and procedure as a criterion for accepting paternity suits or rejecting them. 68. See, for example, in Shula (1998, 188–89), a criminal case, probably a rape, that led to the birth of a baby, in which the defendant argued that he could not be the father, due to a difference in blood group between him and the baby. The court rejected the claim, on the grounds that similarity of blood group between parents and descendants is not a condition for establishment of paternity. The Court of Cassation, in October 1968, criticized this judicial approach, arguing that the judge, by failing to consult an expert on a question that was purely professional, had prejudiced the legal rights of the defendant. 69. D-43; D-45. 70. D-38 and D-42, respectively. 71. During the discussions of Majma al-Fiqh al-Islami, convened in Mecca in 2002, Dr. Najm Abd Allah Abd al-Wahid defined the reliability of the test as 100 percent for denying paternity and 99.9 percent for establishing paternity. See http://www.bab .com/articles/full_article.cfm?id=7010 (last accessed 13 April 2009). 72. Ibid. The mufti certainly referred to a few factors that may decrease the accuracy of the test, such as damaged bodily samples and intentional or accidental replacement of samples. 73. http://www.asharqalawsat.com/details.asp?section=43&article=337484 &issue=9873 (last accessed 9 December 2005). 74. Ibid. 75. Ibid. Dr. Hani Jahshan, a consultant at the Jordanian National Center for Forensic Medicine in the Ministry of Health, said that Jordanian criminal courts consider DNA testing certain proof (dalı¯l tha¯bit wa-qat.ı¯ ). See ibid.

242

Notes to Pages 171–176

76. Ibid. 77. http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006). 78. www.daralhayat.com/arab_news/gulf_news/08–2005/Article-20050811a46e8712-c0a8–10ed-00c7–49e48da07dd6/story.html (last accessed 11 August 2005). 79. http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006); http://www.asharqalawsat.com/details.asp?section=43&article=337484 &issue=9873 (last accessed 9 December 2005). 80. See the proposal of Dr. Malika Zarrar, the Egyptian Islamic propagandist, in http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006). 81. www.Islamonline.net/fatwa/english/FatwaDisplay.asp?hFatwaID=80635. Date of fatwa¯: 9 September 2002 (last accessed 31 May 2005). 82. www.childsupportanalysis.co.uk/information_and_explanation/world/ muslim.htm (last accessed 31 May 2005). 83. Dr. Umar b. Muhammad al-Sabil, dean of the sharia faculty in Umm al-Qura University, and the imam and preacher of the holy mosque in Mecca, shares the view that the lia¯n is the only legal way for denying paternity. He proposes, however, that the husband undergo a DNA test before he pronounces the lia¯n: if the results support his suspicions, he may proceed with the lia¯n; if the results establish that he is the biological father, he should abstain from performing the lia¯n. See http://www.bab .com/articles/full_article.cfm?id=7010 (last accessed 13 April 2009). 84. www.Islamonline.net/fatwa/english/FatwaDisplay.asp?hFatwaID=114009. Date of fatwa¯: 4 May 2004 (last accessed 31 May 2005). See also http://www.islamonline .net/Arabic/news/2005–06/18/article03.shtml (last accessed 23 July 2006). The same opinion is expressed by Dr. Muhammad Sayyid Ahmad al-Masir, an expert on theology from al-Azhar University. See http://www.alkhaleej.ae/articles/show_article .cfm?val=99690 (last accessed 18 September 2005). 85. Her opinion appeared in Majallat al-Mahrousa, 10 February 2006. See http:// www.elmahrousaonline.com/details.asp?art_id=6730&max_Edition_ID=47 (last accessed 16 March 2006). 86. http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006). 87. The New York Times (26 January 2005) reported that the first time in which a DNA test was applied in Egypt in the context of paternity was in a complicated rape case in 2004, in which the criminal aspects overshadowed the issue of paternity. In a case from the late 1990s, a divorcee, while still observing her waiting period, entered into an unofficial marriage with another man. When she bore a child, she did not tell the two men, who both claimed paternity, who the father was. The Egyptian Attorney General ordered that the two men and the child undergo a paternity test. See http:// www.amwague.net/amwague/18/fokaha/3.asp (last accessed 4 April 2006). 88. New York Times, 26 January 2005; www.egypty.com/pepper/index2.asp (last accessed 2 March 2005).

Notes to Pages 176–178

243

89. www.egypty.com/archiv/maqal/maqa147/asp (last accessed 31 May 2005). 90. www.farfesh.com/display.x?cid=19&sid=31&id=6402&XID=2519bbc91 63238 (last accessed 15 March 2005); www.egypty.com/pepper/index5.asp (last accessed 31 May 2005). 91. www.egypty.com/top4/hend_ahmed_dna.asp (last accessed 31 May 2005). 92. On the court’s decision, see the report of Maamoun Youssef in the Associated Press (26 January 2006); http://www.elmahrousaonline.com/details.asp?art _id=6730&max_Edition_ID=47 (last accessed 16 March 2006); http://www .rezgar.com/debat/show.art.asp?aid=56311(last accessed 21 March 2006); http:// www.m700b.com/vb/archive/index.php/t-1879.html (last accessed 4 April 2006). 93. See the Associated Press report in the previous note. 94. http://news.findlaw.com/ap/o/51/05–24-2006/127f0016c110ddf8.html (last accessed 14 September 2006). 95. http://voanews.com/english/2006–06-07-voa19.cfm (last accessed 14 September 2006) 96. http://osrty.com/hwarat/showthread.php?t=87708 (last accessed 23 July 2006). 97. See www.farfesh.com/display.x?cid=19&sid=31&id=6402&XID=2519bb c9163238 (last accessed 15 March 2005) (Ahmad’s mother, Samiya al-Alfi ); www.egypty .com/top4/hend_ahmed_dna.asp (last accessed 31 May 2005) (Hind and Ahmad); www.egypty.com/top4/farouk_ jangle.asp (last accessed 31 May 2005) (a TV confrontation between Ahmad’s father, the actor Faruq al-Fishawi, and Hind’s father, Dr. Hamdi al-Hinnawi); www.egypty.com/pepper/index4.asp (last accessed 31 May 2005) (a confrontation between Ahmad’s mother and Hind’s mother, Dr. Salwa Abd al-Baqi). 98. For an example of the public debate, see www.egypty.com/pepper/hend _ahmed_life.asp (last accessed 31 May 2005). 99. www.akhbarelyom.org.eg/hawadeth/issues/698/1110.html (last accessed 31 August 2005); http://www.elmahrousaonline.com/details.asp?art_id=6730&max _Edition_ID=47 (last accessed 16 March 2006); http://www.al-watan.com/ data/20060317/index.asp?content=islamic (last accessed 20 March 2006). See also Dr. Abd al-Hadi Misbah, a medical expert, and Dr. Fatima al-Bayyumi, a lecturer on forensic medicine at al-Azhar University, who explain the scientific development of the test and its reliability if conducted according to the scientific standards: http:// www.alkhaleej.ae/articles/show_article.cfm?val=99690 (last accessed 18 Spetember 2005). 100. See, for example, http://www.elmahrousaonline.com/details.asp?art_id= 6730&max_Edition_ID=47 (last accessed 16 March 2006); http://www.chinatoday .com.cn/Arabic/2005n/5n5/5p16.htm (last accessed 4 April 2006); www.akhbarelyom .org.eg/hawadeth/issues/698/1110.html (last accessed 31 August 2005). The leftist journalist and politician Amina al-Naqqash called on the Egyptian legal authorities to oblige suspected fathers to undergo the DNA test and to consider their acknowledg-

244

Notes to Pages 178–180

ment of having had an intimate relationship with the mother as legal evidence (dalı¯l qa¯nu¯nı¯ ) of their paternity. Such an attitude was necessary, she said, if Egypt wished to prevent the paternity problem from becoming a national disaster. See http://www .al-ahaly.com/articles/06–02-01/1264-col-agn.htm (last accessed 21 March 2006). 101. http://www.elmahrousaonline.com/details.asp?art_id=6730&max_Edition _ID=47 (last accessed 16 March 2006); http://www.al-watan.com/data/20060317/ index.asp?content=islamic (last accessed 20 March 2006). 102. The three members of parliament who submitted the proposals were Dr. Jamal Zahran, Mahmud Halil Qawita, and Mustafa al-Jundi. See http://harakamasria .org/node/5112 (last accessed 21 March 2006); http://root.aawsat.com/details.asp? section=4&issue=9965&article=352426 (last accessed 3 April 2006); http:// us.moheet.com/asp/report/f1707221.htm (last accessed 23 July 2006). 103. By contrast, three Azhar ulama, Dr. Abd al-Hayy Izat Abd al-Al, Dr. Abd al-Aziz Azzam, and Shaykh Abd Allah Mujawir, objected to the use of DNA testing as a probative mean for establishing qadhf, arguing that reliance on the testing should be limited to preventing prejudice to the interests of the mother and child. See http://islamonline.net/Arabic/news/2005–06/18/articles03.shtml (last accessed 23 July 2006). 104. On the fatwa¯, see http://www.al-watan.com/data/20060317/index.asp? content=islamic (last accessed 20 March 2006); http://root.aawsat.com/details .asp?section=4&issue=9965&article=352426 (last accessed 3 April 2006); http:// us.moheet.com/asp/report/f1707221.htm (last accessed 23 July 2006). 105. http://www.elosboa.com/elosboa/issues/467/0701.asp (last accessed 20 March 2006). The interview with the judge was published on 6 March 2006. 106. http://www.islamonline.net/Arabic/news/2005–06/18/article03.shtml (last accessed 23 July 2006). 107. Ibid. 108. http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006). 109. Among these ulama were Shaykh Umar al-Dib, Wakil al-Azhar, and Sheikh Muhammad al-Jazzar, the previous general secretary of al-Azhar’s fatwa¯ committee. See http://www.al-watan.com/data/20060317/index.asp?content=islamic (last accessed 20 March 2006). See also the opinions of Judge Hasan Mansur, deputy president of the Court of Cassation; Dr. Salih Abd al-Rauf, expert on comparative law at al-Azhar; and Dr. Muhammad Abd al-Munim Khariba, expert on Quran exegesis at al-Azhar mosque, in http://us.moheet.com/asp/report/f1707221.htm (last accessed 23 July 2006). 110. According to Dr. Ahmad Umar Hashim, ex-director of al-Azhar University, who supported this minority opinion, this “means of knowledge” in current times may be DNA testing. See http://www.sayidaty.net/PrintNews.asp?NewsID=1653 (last accessed 23 July 2006).

Notes to Pages 180–183

245

111. http://www.mottaheda.com.eg/news2.asp?id=6394&topic=10 (last accessed 16 March 2006); http://us.moheet.com/asp/report/f1707221.htm (last accessed 23 July 2006). Dr. Muhammad Rafat Uthman, a member of Majma al-Buhuth al-Islamiyya and of Majma Fuqaha al-Sharia al-Islamiyya in the United States, supports a similar interpretation concerning the fornicator-father, based on the opinions of Ibn Taymiyya and Ibn Qayyim al-Jawziyya. See http://www.al-watan.com/ data/20060317/index.asp?content=islamic (last accessed 20 March 2006). 112. http://us.moheet.com/asp/report/f1707221.htm (last accessed 23 July 2006). 113. For the opinions of the two scholars, see http://www.mottaheda.com.eg/ news2.asp?id=6394&topic=10 (last accessed 16 March 2006); http://us.moheet .com/asp/report/f1707221.htm (last accessed 23 July 2006). 114. See http://www.alkhaleej.ae/articles/show_article.cfm?val=99690 (last accessed 18 September 2005). Dr. Sheikh Salih Al al-Sheikh, the president of the courts of summary justice in Riyad, said that in a case of contradiction between the two, DNA testing is stronger circumstantial evidence than is physiognomy: http://www .asharqalawsat.com/details.asp?section=43&article=337484&issue=9873 (last accessed 9 December 2005). 115. http://www.bab.com/articles/full_article.cfm?id=7010 (last accessed 13 April 2009). 116. http://www.coptichistory.org/new_page_1797/htm (last accessed 23 July 2006). 117. This presumption may be contradicted only on the grounds of evidence to the effect that the husband could not have been the father (Zafran 2002, 326). 118. According to dı¯n yakı¯r, the husband says “This son of mine is a bastard.” The majority of Jewish jurists hold that the husband has to make this statement immediately when he learns about his wife’s pregnancy. See Weitzman 2004, 5; Talmudic Encyclopedia, s.v. “Yakı¯r” (in Hebrew); Schereschewsky 1974, 353–58. 119. Zafran 2002, 326. 120. Ibid., 311–14, 325–27. 121. Westreich 1996, 444–46, 450–51. On historical landmarks in the relationship between Jewish halacha, medicine, and science, see ibid., 427–49. 122. On the acceptability of artificial insemination as a general technique by Muslim jurists, see Rispler-Chaim 1993, 21. 123. The Mishna, redacted circa 200 CE by Yehuda Ha-Nasi, is the first written record of the oral law of the Jewish people. It is considered the first work of rabbinic Judaism and the latter’s major source of religious texts. The Mishna consists of six parts (sedarı¯m), each containing seven to twelve tractates (masechto¯t), each of which is divided into verses (mishnayo¯t). 124. Westreich 1996, 426, 491–92. 125. Weitzman 2004, 11n45. 126. Drori (2003a), paragraph 99.

246

Notes to Pages 183–192

127. In Jewish law, an agunah is a “chained” woman—i.e., a woman bound in marriage to a husband who refuses to grant her a divorce or who is missing and not proved dead. 128. Drori (2003a), paragraphs 100–111. 129. The Jewish Emancipation took place in nineteenth-century Europe—the authorities abolished the discriminatory laws applied especially to Jews, recognized them as equal to other citizens, and granted them formal citizenship. This policy led to Jewish active participation in the surrounding civil society. 130. Midrash is a method of exegesis of a biblical text. The term can also refer to a compilation of Midrashic teachings, in the form of commentaries on the Bible. 131. Aviner and Halperin 2001. 132. Westreich 1996, 426, 452–56, 461–64, 466–67, 470–75. Cf. Zafran (2002, 331), who finds that decisions on paternity by rabbinical courts are characterized by (1) an ambivalent attitude with regard to the probative value of paternity tests; and (2) a maximum effort to avoid bastardization, resulting in a new tendency to separate the financial aspects of paternity from the question of bastardization. 133. According to a Talmudic dictum, “his [the child’s] father disseminates the white [semen] . . . his mother disseminates the red [blood] . . . and God provides him with spirit and soul.” According to Westreich (1996, 462–63), the authority of this Talmudic dictum is weak. 134. Zafran 2002, 331–32; Weitzman 2004, 3–8. 135. Zafran 2002, 332; Westreich 1996, 470–71. 136. Weitzman 2004, 9. 137. This precedent by Judge Deichovsky resembles the position of Rabbi Aviner, who holds that those who choose to rely on scientific tests may exempt the legal father from supporting the child; they may not, however, declare the child a bastard, on the grounds that the biological father may have been a non-Jew (Aviner and Halperin 2001; Zafran 2002, 333–34; Weitzman 2004, 9–11). 138. Glennon 2000, 587. 139. Ibid., 604–5. 140. Dallas 1988, 383–89.

Conclusion 1. On the complexity of historical comparisons, see Gelber 2007, 27–28, 38. On the value and problems associated with using taxonomies in the comparative study of legal systems, see Rosen 2000, chap. 3, esp. 46, 63ff. 2. Rosen 1989, 26–27, 43. 3. See the same in ibid., 26. 4. See, for example, Gerber (2002), who argues that although the Ottoman state was stronger and more bureaucratized and centralized than its predecessor Islamic states, its power was balanced and circumscribed by a series of important social

Notes to Page 193

247

institutions that gave substance to the Ottoman public sphere and to civil society (pp. 68, 72). Thus, “some real autonomies did exist in the Ottoman Islamic city” (p. 70). Other contributions in the same collective volume make similar claims with respect to the existence of the public sphere in Muslim societies. 5. Ibid., 75–77. See also the article by Miriam Hoexter in the same collective volume. 6. See Gerber (2002, 69), who argues that the “main areas of the law enforced in Ottoman courts had nothing to do with the sultan—at least in the sense that he was not the source of legitimation of this law.” The qadi’s court grew in power and authority between the fifteenth and the seventeenth centuries, and Ottoman qadis enjoyed a wide measure of autonomy, both judicial and administrative (ibid., 68–75).

references

Abd al-Tawwa¯b, Muawwad.. 1986. Mawsu¯at al-Ah.wa¯l al-Shakhs.iyya. 3rd ed. Alexandria: Munshaat al-Maa¯rif. ———. 1997. Al-Dufu¯ al-Shariyya fı¯ Daa¯wa¯ al-Ah.wa¯l al-Shakhs.iyya. Alexandria: Da¯r al-Fikr al-Ja¯mi ¯ı. al-Abdarı¯, Ibn al-H . a¯jj. n.d. Al-Madkhal. 4 vols. Cairo: Ida¯rat al-Azhar. Abu¯ Salı¯m, I.sa¯ Sulayma¯n. 2000. Al-As.na¯f wal-T.awa¯if al-H.irafiyya fı¯ Madı¯nat Dimashq khila¯l al-Nis.f al-Awwal min al-Qurn al-Tha¯min Ashar. Amman: Da¯r al-Fikr lil-T.iba¯a wal-Nashr wal-Tawzı¯. Abu¯ al-Wafa¯, Ah.mad. 1978. Al-Talı¯q ala¯ Nus.u¯s. Qa¯nu¯n al-Ithba¯t. Alexandria: Munshaat al-Maa¯rif. Abu¯ Zahra, Muh.ammad. 1957. Al-Ah.wa¯l al-Shakhs.iyya. 3rd ed. Cairo: Da¯r al-Fikr al-Arabı¯. ———. 1976. Al-Milkiyya wa-Naz.ariyyat al-Aqd fil-Sharı¯ a al-Isla¯miyya. Cairo: Da¯r al-Fikr al-Arabi. Afı¯fı¯, Muh.ammad. 1991. Al-Awqa¯f wal-H.aya¯t al-Iqtis.a¯diyya fı¯ Mis.r fı¯ l-As.r alUthma¯nı¯. Cairo: Al-Haya al-Mis.riyya al-A.mma lil-Kita¯b. Ahmed, Leila. 1992. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven, CT: Yale Univ. Press. Ajı¯la, A¯s.im Ah.mad. 2002. Taqrı¯r al-Khabı¯r bayn al-Tashrı¯  al-Kuwaytı¯ wal-Qad.a¯ al-Mis.rı¯. Alexandria: Munshaat al-Maa¯rif. al-Aju¯z, Na¯hid. 1998. Jara¯im al-Tazwı¯r al-Mutaalliqa bil-Zawa¯j. Alexandria: Munshaat al-Maa¯rif. al-Alwani, Taha J. 1996. “The Testimony of Women in Islamic Law.” American Journal of Islamic Social Sciences 13:173–96. Ama¯ra, Muh.ammad. 1937. Mudhakkirat al-T.ibb al-Sharı¯ li-T.alabat al-Sanna

250

References

¯ la¯ min Qism Ija¯zat al-Qad.a¯ al-Sharı¯ bi-Kulliyyat al-Sharı¯ a al-Isla¯miyya. al-U [Cairo]: Al-Azhar—Kulliyyat al-Sharı¯a al-Isla¯miyya. al-Ama¯wı¯, Muh.ammad b. Muh.ammad. 2001. Tafsı¯r Abı¯ al-Suu¯d. 7 vols. [Beirut]: Da¯r al-Fikr. ¯ lı¯ al-Abs.a¯r al-Amrı¯ [known as al-Fulla¯nı¯], S.a¯lih. b. Muh.ammad. 1978. Iqa¯z. Himam U lil-Iqtid.a¯ bi-Sayyid al-Muha¯jirı¯n wal-Ans.a¯r. Beirut: Da¯r al-Marifa lil-T.iba¯a wal-Nashr. Anderson, J. N. D. 1951. “Recent Developments in Sharı¯a Law 3 (The Contract of Marriage).” Muslim World 41:113–26. al-Ans.a¯rı¯, Zakariya¯ b. Muh.ammad. 1984. Al-Ila¯m wal-Ihtima¯m bi-Jam Fata¯wa¯ Shaykh al-Isla¯m Abı¯ Yah.ya¯ Zakariya¯ b. Muh.ammad al- Ans.a¯rı¯. Beirut: A¯lam al-Kutub. al-Ans.a¯rı¯, Muh.ammad b. Ah.mad al-Qurt.ubı¯. 1993. Al-Ja¯mi li-Ah.ka¯m al-Qura¯n. 10 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Antoun, Richard T. 1990. “Litigant Strategies in an Islamic Court in Jordan.” In Law and Islam in the Middle East, ed. Daisy H. Dwyer, 35–60. New York: Bergin and Garvey. Arh.u¯ma, Mu¯sa¯ Masu¯d. 1999. Qubu¯l al-Dalı¯l al-Ilmı¯ ama¯m al-Qad.a¯ al-Jina¯ı¯ (Dira¯sa Muqa¯rina). Benghazi: Da¯r al-Kutub al-Wat.aniyya. al-Askarı¯, Abu¯ Hila¯l. 1988. Kita¯b Jamharat al-Amtha¯l. 2 vols. Beirut: Dar al-Jı¯l. al-Asyu¯t.¯ı [al-Suyu¯t.¯ı], Shams al-Dı¯n Muh.ammad b. Ah.mad. 1955. Jawa¯hir al-Uqu¯d wa-Muı¯n al-Qud.a¯t wal-Muwaqqiı¯n wal-Shuhu¯d. 2nd ed. 2 vols. [Cairo]: n.p. Aviner, Shlomo, and Mordekhai Halperin. 2001. “The Establishment of Bastardization on the Basis of HLA Typing” [in Hebrew]. Assia—A Journal of Jewish Ethics and Halacha 67–68. www.daat.ac.il/daat/kitveyet/assia/kviat-4.htm. Ayalon, Ami. 1995. The Press in the Arab Middle East: A History. New York: Oxford Univ. Press. Baer, Gabriel. 1964. Egyptian Guilds in Modern Times. Jerusalem: Israel Oriental Society. al-Baghawı¯, al-H . usayn b. Masu¯d. 1992. Kita¯b Adab al-Qa¯d.¯ı min al-Tahdhı¯b. Cairo: Da¯r al-Mana¯r. al-Baghda¯dı¯, Ah.mad Muh.ammad. 1998. Al-Tarı¯kh al-Ijtima¯ı¯ lil-Tajrı¯m wal-Iqa¯b fı¯ Mis.r fil-As.r al-Uthma¯nı¯. Cairo: Da¯r al-Nahd.a al-Arabiyya. al-Bakr, Muh.ammad Abd al-Rah.ma¯n. 1988. Al-Sult.a al-Qad.a¯iyya wa-Shakhs.iyyat al-Qa¯d.¯ı. Cairo: al-Zahra¯ lil-Ila¯m al-Arabı¯. al-Banna¯, Kama¯l Sa¯lih. 1984. Al-Siyagh al-Qa¯nu¯niyya li-Daa¯wa¯ al-Ah.wa¯l alShakhs.iyya lil-Mis.riyyı¯n wal-Aja¯nib. Cairo: A¯lam al-Kutub. Bar-On, Yaarah. 2000. The Crowded Delivery Room: Gender and Public Opinion in Early Modern Gynecology [in Hebrew]. Haifa: Univ. of Haifa and Zmora-Bitan. Baumgarten, Elisheva. 2000. “Thus Sayeth the Wise Midwives: Midwives and Midwifery in Thirteenth-Century Ashkenaz” [in Hebrew]. Zion 65:45–74.

References

251

Berkey, Jonathan. 1992. The Transmission of Knowledge in Medieval Cairo: A Social History of Islamic Education. Princeton, NJ: Princeton Univ. Press. ———. 2003. The Formation of Islam: Religion and Society in the Near East, 600–1800. Cambridge: Cambridge Univ. Press. Bos, Gerrit. 1993. “Ibn al-Jazza¯r on Women’s Diseases and Their Treatment.” Medical History 37:296–312. Brown, Nathan. 1997. The Rule of Law in the Arab World: Courts in Egypt and the Gulf. Cambridge: Cambridge Univ. Press. Brunschvig, Robert. 1976a. “Urbanisme médiéval et droit musulman.” In Études d’islamologie, ed. R. Brunschvig, 2:7–35. Paris: G. P. Maisonneuve et Larose. ———. 1976b. “Le système de la preuve en droit musulman.” In Études d’islamologie, ed. R. Brunschvig, 2:201–18. Paris: G. P. Maisonneuve et Larose. al-Burzulı¯, Abu¯ al-Qa¯sim b. Ah.mad. 1987. Fata¯wı¯ al-Burzulı¯. Ja¯mi Masa¯il alAh.ka¯m li-ma¯ Nazala min al-Qad.a¯ya¯ bil-Muftiyyı¯n wal-H.ukka¯m. 7 vols. Beirut: Da¯r al-Gharb al-Isla¯mı¯. Coady, C. A. J. 1992. Testimony: A Philosophical Study. Oxford: Clarendon Press. Cohen, Amnon. 2001. The Guilds of Ottoman Jerusalem. Boston: Brill. Cohn, Haim H. 1991. The Law [in Hebrew]. Jerusalem: Bialik Institute. Cotterrell, Roger. 1992. The Sociology of Law: An Introduction. 2nd ed. London: Butterworths. Coulson, Noel James. 1964. A History of Islamic Law. Edinburgh: Edinburgh Univ. Press. ———. 1971. Succession in the Muslim Family. Cambridge: Cambridge Univ. Press. Dallas, Traci. 1988. “Rebutting the Marital Presumption: A Developed Relationship Test.” Columbia Law Review 88:369–89. Deichovsky, Shlomo. 1997. “From the Responses of a Rabbi to a Physician” [in Hebrew]. Tehumin 17:327–34. Drori, Moshe. 2003a. “The Probative Meaning of DNA Testing” [in Hebrew]. Daat–Center for Judaic and Humanistic Studies, http://www.daat.ac.il/ mishpat-ivri/maamarim/hamashmaut-2.htm. ———. 2003b. “Reliability of Expert Witness” [in Hebrew]. Daat–Center for Judaic and Humanistic Studies, http://www.daat.ac.il/mishpat-ivri/maamarim/ mehymanuto-2.htm. Dupret, Baudouin. 2006. “The Practice of Judging: The Egyptian Judiciary at Work in a Personal Status Case.” In Masud, Peters, and Powers 2006, 143–68. El-Alami, Dawoud S. 1992. The Marriage Contract in Islamic Law. London: Graham and Trotman. Ergene, Bog˘aç A. 2003. Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankiri and Kastamonu (1652–1744). Leiden: Brill. Fadel, Mohammad. 1997. “Two Women, One Man: Knowledge, Power, and Gender

252

References

in Medieval Sunni Legal Thought.” International Journal of Middle East Studies 29:185–204. Fahmy, Khaled. 1998a. “Law, Medicine and Society in Nineteenth-Century Egypt.” Egypte Monde Arabe 34:17–51. ———. 1998b. “Women, Medicine and Power in Nineteenth-Century Egypt.” In Remaking Women: Feminism and Modernity in the Middle East, ed. Lila AbuLughod, 35–72. Princeton, NJ: Princeton Univ. Press. Farh.at, Muh.ammad Nu¯r. 1988. Al-Qad.a¯ al-Sharı¯ fı¯ Mis.r fil-As.r al-Uthma¯nı¯. Cairo: Al-Haya al-Mis.riyya al-A.mma lil-Kita¯b. Al-Fata¯wı¯ al-Hindiyya. 2000. 6 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Faur, Joseph. 1999. “The Wise People of the Gentiles Overcame the Sages of Israel—Between Scientific Data and Scientific Opinion” [in Hebrew]. In A Present to Yitzhak: A Collective Volume in Honor of Judge Yitzhak Shiloh upon His 80th Birthday, ed. Aharon Barak and Menashe Shawa, 113–33. Jerusalem: Bar Association Publishing House. Geertz, Clifford. 1983. Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books. Gelber, Yoav. 2007. History, Memory and Propaganda: The Historical Discipline at the Beginning of the 21st Century [in Hebrew]. Tel Aviv: Am Oved. Gerber, Haim. 1994. State, Society, and Law in Islam: Ottoman Law in Comparative Perspective. Albany: State Univ. of New York Press. ———. 2002. “The Public Sphere and Civil Society in the Ottoman Empire.” In: The Public Sphere in Muslim Societies, ed. Miriam Hoexter, Shmuel N. Eisenstadt, and Nehemia Levtzion, 65–82. Albany: SUNY. Ghanem, Isam. 1987. Islamic Medical Jurisprudence. 2nd ed. London: Yemen. Ghazaleh, Pascale. 1999. “Masters of the Trade: Crafts and Craftspeople in Cairo, 1750–1850.” Cairo Papers in Social Science 22: 1–151. Giladi, Avner. 1992. Children of Islam: Concepts of Childhood in Medieval Muslim Society. New York: St. Martin’s Press. ———. 1999. Infants, Parents and Wet Nurses: Medieval Islamic Views on Breastfeeding and Their Social Implications. Leiden: Brill. Glennon, Theresa. 2000. “Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity.” West Virginia Law Review 102:547–605. Goitein, S. D. 1973. “Geniza Documents on the Transfer and Inspection of Houses.” Revue de l’Occident musulman et de la Méditerrané, 401–12. Golan, Tal. 2004. Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, MA: Harvard Univ. Press. Hallaq, Wael B. 1994. “From Fatwa¯s to Furu¯: Growth and Change in Islamic Substantive Law.” Islamic Law and Society 1:29–55. ———. 1997. A History of Islamic Legal Theories: An Introduction to Sunni Usul alFiqh. Cambridge: Cambridge Univ. Press.

References

253

———. 1999. “Qa¯d.¯ıs Communicating: Legal Change and the Law of Documentary Evidence.” Al-Qant.ara 20:437–66. ———. 2001. Authority, Continuity, and Change in Islamic Law. Cambridge: Cambridge Univ. Press. ———. 2005. The Origins and Evolution of Islamic Law. Cambridge: Cambridge Univ. Press. Hanna, Nelly. 1984. Construction Work in Ottoman Cairo (1517–1798). Cairo: Institut français d’Archéologie orientale. ———. 1995. “The Administration of Courts in Ottoman Cairo.” In The State and Its Servants: Administration in Egypt from Ottoman Times to the Present, ed. Nelly Hanna, 44–59. Cairo: American Univ. of Cairo Press. Ha¯shim, Mah.mu¯d Muh.ammad. 1988. Al-Qad.a¯ wa-Niz.a¯m al-Ithba¯t fı¯ l-Fiqh alIsla¯mı¯ wal-Anz.ima al-Wad.iyya. Riyad: Ima¯dat Shuu¯n al-Maktaba¯t—Ja¯miat al-Malik Suu¯d. H . aydar, Alı¯. 1925–33. Durar al-H . ukka¯m Sharh. Majallat al-Ah.ka¯m. 3 parts in 2 vols.; books 8–16 in 4 vols. Gaza: Mat.baat Gaza. Haykel, Bernard. 2002. “Theme Issue: Evidence in Islamic Law.” Islamic Law and Society 9 (2): 129–31. al-Haytamı¯, Ibn H . ajar. n.d. Al-Fata¯wa¯ al-Kubra¯ al-Fiqhiyya. 4 parts in 2 vols. Beirut: Da¯r S.a¯dir. Heyd, Uriel. 1961. “The Ottoman Ulema¯ and Westernization in the Time of Selı¯m III and Mah.mu¯d II.” In Studies in Islamic History and Civilization, ed. Uriel Heyd, 63–96. Jerusalem: Magnes Press. Hill, Enid. 1979. Mahkama!: Studies in the Egyptian Legal System; Courts and Crimes, Law and Society. London: Ithaca Press. Hill, Enid, M. Zaalouk, and A. Azer. n.d. “The Divorce Courts of Egypt: Personal Status Litigation and Society in Egypt with Special Reference to Divorce by Court Action (Tat.lı¯q).” Unpublished paper, American Univ. in Cairo. al-H imyarı ¯, Muh.ammad b. Abd al-Munim. 1984. Al-Rawd. al-Mit.a¯r fı¯ Khabar . al-Aqt.a¯r: Mujam Jighra¯fı¯. 2nd ed. Beirut: Maktabat Lubna¯n. Hodgkinson, Tristram. 1990. Expert Evidence: Law and Practice. London: Sweet and Maxwell. Holmes, Clive. 1993. “Women: Witnesses and Witches.” Past and Present 140:45–78. Holtzer, Gershon. 1971. “The Testimony of a Woman in Jewish Law” [in Henbrew]. Sinay 67. Part 1, pp. 1–9: http://www.daat.ac.il/daat/kitveyet/sinay/edut1–4.htm; Part 2, pp. 1–7: http://www.daat.ac.il/daat/kitveyet/sinay/edut2–4.htm. Huff, Toby E. 1993. The Rise of Early Modern Science: Islam, China, and the West. Cambridge: Cambridge Univ. Press. al-H us . . arı¯, Ah.mad. 1979. Ilm al-Qad.a¯: Adillat al-Ithba¯t fı¯ l-Fiqh al-Isla¯mı¯. Cairo: Maktabat al-Kulliyya¯t al-Azhariyya. Ibn Abı¯ al-Dam, Ibra¯hı¯m b. Abd Alla¯h. 1987. Kita¯b Adab al-Qad.a¯ aw al-Durar al-Manz.u¯ma¯t fı¯ l-Aqd.iya wal-H . uku¯ma¯t. Beirut: Da¯r al-Kutub al-Ilmiyya.

254

References

Ibn A.bidı¯n, Muh.ammad Amı¯n b. Umar. 1966. Radd al-Muh.ta¯r ala¯ al-Durr alMukhta¯r Sharh. Tanwı¯r al-Abs.a¯r fı¯ Fiqh Madhhab Abı¯ H.anı¯fa al-Numa¯n. 2nd ed. 8 vols. Cairo: Mat.baat Mus.t.afa¯ al-Ba¯bı¯ al-H . alabı¯. Ibn al-Dayba, Abd al-Rah.ma¯n b. Alı¯. 1963. Tamyı¯z al-T.ayyib min al-Khabı¯th fı¯ma¯ Yadu¯r ala¯ Alsinat al-Na¯s min al-H . adı¯th. Cairo: Mat.baat Muh.ammad Alı¯ S.abı¯h.. Ibn Farh.u¯n, Burha¯n al-Dı¯n Ibra¯hı¯m. 1986. Tabs.irat al-H.ukka¯m fı¯ Us.u¯l al-Aqd.iya wa-Mana¯hij al-Ah.ka¯m. 2 vols. Cairo: Maktabat al-Kulliyya¯t al-Azhariyya. Ibn H . azm, Alı¯ b. Ah.mad al-Andalusı¯. 1984. Al-Muh.alla¯ bil-Atha¯r. 12 vols. Beirut: Da¯r al-Fikr. Ibn Khaldun. 1958. The Muqaddimah: An Introduction to History. Trans. Franz Rosenthal. 3 vols. New York: Pantheon Books. Ibn Maju¯z, Muh.ammad. 1984. Wasa¯il al-Ithba¯t fı¯ l-Fiqh al-Isla¯mı¯. Casablanca: Mat.baat al-Najja¯h. al-Jadı¯da. Ibn Muflih, Ibra¯hı¯m b. Muh.ammad. 1997. Al-Mubdi Sharh. al-Muqni. 8 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Ibn Nujaym, Zayn al-Dı¯n. n.d. Al-Bah.r al-Ra¯iq Sharh. Kanz al-Daqa¯iq. 8 vols. N.p.: Da¯r al-Kita¯b al-Isla¯mı¯ li-Ih.ya¯ wa-Nashr al-Tura¯th. Ibn Qayyim al-Jawziyya, Muh.ammad b. Abı¯ Bakr. n.d. Al-T.uruq al-H.ukmiyya filSiya¯sa al-Shariyya. Beirut: Da¯r Ih.ya¯ al-Ulu¯m. ———. 1972. Bada¯i al-Fawa¯id. 2 vols. Cairo: Maktabat al-Qa¯hira. Ibn Quda¯ma, Abd Alla¯h b. Ah.mad Muwaffaq al-Dı¯n. 1990. Al-Mughnı¯. 15 vols. Cairo: Hajr. ———. Al-Mughnı¯ ala¯ Mukhtas.ar al-Khiraqı¯. 9 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Ibn al-Ra¯mı¯ [“al-Banna¯”], Muh.ammad b. Ibra¯hı¯m al-Lakhmı¯. 1999. Al-I la¯n bi-Ah.ka¯m al-Bunya¯n. Ed. Farı¯d b. Sulayma¯n. Tunis: Markaz al-Nashr al-Ja¯miı¯. Ibn Rushd, Abu¯ al-Walı¯d Muh.ammad b. Ah.mad. 1987. Fata¯wa¯ Ibn Rushd. 3 vols. Beirut: Da¯r al-Gharb al-Isla¯mı¯. ———. 1994. Bida¯yat al-mujtahid wa Niha¯yat al-Muqtas.id. 4 vols. Cairo: Maktabat Ibn Taymiyya. ———. 2000. Bida¯yat al-mujtahid wa Niha¯yat al-Muqtas.id. Trans. Imran Ahsan Khan Nyazee and Muhammad Abdul Rauf as The Distinguished Jurist’s Primer. 2 vols. Reading, UK: Garnet. Ibn Taghrı¯birdı¯, Yu¯suf. 1963. Al-Nuju¯m al-Za¯hira fı¯ Mulu¯k Mis.r wal-Qa¯hira. 16 parts in 9 vols. Cairo: Wiza¯rat al-Thaqa¯fa wal-Irsha¯d al-Qawmı¯. Ibn Taymiyya, Ah.mad. n.d. Majmu¯ Fata¯wa¯ Shaykh al-Isla¯m Ah.mad B. Taymiyya. 37 vols. Cairo: Da¯r al-Rah.ma lil-Nashr wal-Tawzı¯. Ibra¯hı¯m, Ah.mad. 1928. T.uruq al-Qad.a¯ fı¯ l-Sharı¯ a al-Isla¯miyya wa-Muqa¯ranatuha¯ bima¯ Ja¯a fı¯ l-Qawa¯nı¯n al-Wad.iyya wa-ma¯ Alayhi al-Amal al-Yawm fı¯ lMah.a¯kim al-Shariyya. Cairo: al-Mat.baa al-Salafiyya.

References

255

Ibra¯hı¯m, Ah.mad Muh.ammad. 1964. Al-Qa¯nu¯n al-Madanı¯ Muallaqan ala¯ Nus.u¯s.ihı¯ bil-Ama¯l al-Tah.d.¯ıriyya wa-Ah.ka¯m al-Qad.a¯ wa-Ara¯ al-Fuqaha¯. Cairo: Da¯r al-Maa¯rif. ———. 1985. T.uruq al-Ithba¯t al-Shariyya, maa Bayya¯n Ikhtila¯f al-Madha¯hib al-Fiqhiyya wa-Sawq al-Adilla wal-Muwa¯zana baynaha¯ thumma Muqa¯rana bil-Qa¯nu¯n wa-Muallaqan alayhi bi-Ah.ka¯m al-Naqd.. 3rd ed. Cairo: Mat.baat al-Qa¯hira al-H . adı¯tha lil-T.iba¯a. al-Ibya¯nı¯, Muh.ammad Zayd. n.d. Sharh. al-Ah.ka¯m al-Shariyya fı¯ l-Ah.wa¯l alShakhs.iyya. 3 vols. Beirut: Maktabat al-Nahd.a. Ihsanoglu, Ekmeleddin. 1992. “Ottoman Science in the Classical Period and Early Contacts with European Science and Technology.” In Transfer of Modern Science and Technology to the Muslim World, ed. Ekmeleddin Ihsanoglu, 1–48. Istanbul: IRCICA. ———. 2004. “Some Critical Notes on the Introduction of Modern Sciences to the Ottoman State and the Relation between Science and Religion up to the End of the Nineteenth Century.” In Science, Technology and Learning in the Ottoman Empire: Western Influence, Local Institutions, and the Transfer of Knowledge, 5:235–51. Variorum Collected Studies Series. Aldershot, UK: Ashgate. Ikhwa¯n al-S.afa¯. 1928. Rasa¯il Ikhwa¯n al-S.afa¯ wa-Khilla¯n al-Wafa¯. 4 vols. Cairo: Al-Maktaba al-Tija¯riyya al-Kubra¯. I¯sa¯, Abd al-Ra¯ziq Ibra¯hı¯m. 1998. Tarı¯kh al-Qad.a¯ fı¯ Mis.r al-Uthma¯niyya (1517– 1798). Cairo: Al-Haya al-Mis.riyya al-A¯mma lil-Kita¯b. Ja¯bir, H . usayn Abd al-Salla¯m. 1991. Al-Taqrı¯r al-T.ibbı¯ bi-Is.a¯bat al-Majniyy Alayhı¯ wa-Atharuhu fı¯ l-Ithba¯t fı¯ l-Dawayayni al-Jina¯iyya wal-Madaniyya. Cairo: Da¯r al-Fikr al-Arabı¯. Jamiyyat al-Dira¯sa¯t al-Isla¯miyya. 1969. Mawsu¯at al-Fiqh al-Isla¯mı¯. Directed by Muh. ammad Abu¯ Zahra. 2 vols. Cairo: Mat.baat Ah.mad Alı¯ Mukhaymar. al-Jamma¯s, Diya¯ al-Dı¯n. 1993. Dira¯sa¯t T.ibbiyya Fiqhiyya Mua¯s.ira. Damascus: Markaz Nu¯r al-Sha¯m lil-Kita¯b. al-Jarra¯h.¯ı, Isma¯ı¯l b. Muh.ammad. 1938. Kashf al-Khafa¯ wa-Muzı¯l al-Ilba¯s amma¯ Ishtahara min al-Ah.a¯dı¯th ala¯ Alsinat al-Na¯s. 3rd ed. 2 vols. Beirut: Muassasat al-Risa¯la. al-Jazı¯rı¯, Abd al-Rah.ma¯n. 1980. Kita¯b al-Fiqh ala¯ al-Madha¯hib al-Arbaa. 4 vols. Cairo: Da¯r al-Irsha¯d lil-T.iba¯a wal-Nashr. Jennings, Roland. 1978. “Kadi, Court, and Legal Procedure in 17th Century Ottoman Kayseri.” Studia Islamica 48:133–72. Johansen, Baber. 2002. “Signs as Evidence: The Doctrine of Ibn Taymiyya (1263– 1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof.” Islamic Law and Society 9 (2): 168–93. Kaplan, Edna, Chayim Brautbar, and David Nelken. 1979–80. “HLA: Ascertaining Paternity by Means of Genetics” [in Hebrew]. Tel Aviv University Law Review 7:46–74.

256

References

al-Ka¯sa¯nı¯, Ala¯ al-Dı¯n Abu¯ Bakr b. Masu¯d. 1910. Kitab Bada¯i al-S.ana¯i fı¯ Tartı¯b al-Shara¯i. 4 vols. Cairo: Maktabat al-Jama¯liyya. al-Khalı¯lı¯, Muh.ammad. 1867. Kita¯b Fata¯wı¯ al-Khalı¯lı¯ ala¯ Madhhab al-Ima¯m alSha¯fiı¯. 2 vols. Cairo. Kuhnke, LaVerne. 1990. Lives at Risk: Public Health in Nineteenth-Century Egypt. Cairo: American Univ. in Cairo Press. Kupferschmidt, Uri M. 2004. “Western Technologies, Big and Small, in the Middle East.” Unpublished paper submitted for discussion at the Baer Forum, Tel Aviv Univ., 16 April 2004. Lane, Edward William. 1954. Manners and Customs of the Modern Egyptians. London: J. M. Dent. Layish, Aharon. 1975. Women and Islamic Law in a Non-Muslim State. Jerusalem: Israel Universities Press. ———. 2006. “Shaha¯dat Naql in the Judicial Practice in Modern Libya.” In Masud, Peters, and Powers 2006, 495–516. Layish, Aharon, and Gabriel Warburg. 2002. The Reinstatement of Islamic Law in Sudan under Numayrı¯: An Evaluation of a Legal Experiment in the Light of Its Historical Context, Methodology, and Repercussions. Leiden: Brill. Lev, Yaacov. 1987. “The Fa¯t.imid Princess Sitt al-Mulk.” Journal of Semitic Studies 32:319–28. Linant de Bellefonds, Yves. 1965. Traité de droit musulman comparé. 3 vols. Paris: Mouton. Longinotto, Kim, and Claire Hunt (with Safaa Fathay). 1990. The Hidden Face. A documentary on Nawwal al-Sadawi, produced by 20th Century Vixen for British Channel Four. al-Mahdı¯, Muh.ammad al-Abba¯sı¯. 1883/84. Al-Fata¯wı¯ al-Mahdiyya fı¯ l-Waqa¯i alMis.riyya. 7 vols. Cairo: Al-Mat.baa al-Azhariyya. Mah.ju¯b, Muh.ammad Abduh. 1989. Muqaddima li-Dira¯sat al-Mujtamaa¯t alBadawiyya (Minhaj wa-Tat.bı¯q). Alexandria: Da¯r al-Marifa al-Ja¯miiyya. Mah.mas.a¯nı¯, S.ubh.¯ı. 1948. Al-Naz.ariyya al-A.mma lil-Mu¯jiba¯t wal-Uqu¯d fı¯ l-Sharı¯ a al-Isla¯miyya: Bah.th Muqa¯rin bayn al-Madha¯hib al-Mukhtalifa wal-Qawa¯nı¯n al-H.adı¯tha. 2 vols. Beirut: Maktabat al-Kashsha¯f. Ma¯lik b. Anas. 1987. Muwat.t.a al-Ima¯m Ma¯lik. Riwa¯yat Muh.ammad b. H . asan alShayba¯nı¯. 3rd ed. Cairo: Wiz.a¯rat al-Awqa¯f. ———. 1999. Al-Mudawwana al-Kubra¯ lil-Ima¯m Ma¯lik b. Anas al-As.bah.¯ı. Riwa¯yat al-Ima¯m Sah.nu¯n b. Sa ¯ıd al-Tanu¯khı¯. 9 vols. Mecca: Maktabat Niz.a¯r Mus.t.afa¯ al-Ba¯z. Mans.u¯r, Muh.ammad Kha¯lid. 1999. Al-Ah.ka¯m al-T.ibbiyya al-Mutaalliqa bil-Nisa¯ fı¯ l-Fiqh al-Isla¯mı¯. Amman: Da¯r al-Nafa¯is. Marcus, Abraham. 1989. On the Eve of Modernity: Aleppo in the Eighteenth Century. New York: Columbia Univ. Press.

References

257

Marland, Hilary. 1993. Introduction. In The Art of Midwifery: Early Modern Midwives in Europe, ed. Hilary Marland, 1–8. London: Routledge. Masud, Khaled, Ruud Peters, and David Powers. 2006. “Qa¯d.¯ıs and Their Courts: An Historical Survey.” In Dispensing Justice in Islam: Qadis and Their Judgments, ed. Khaled Masud, Ruud Peters, and David Powers, 1–44. Leiden: Brill. Mautner, Menachem. 1998. “Law as Culture: Towards a New Paradigm for Research.” In Multiculturalism in a Democrat and Jewish State: The Ariel RosenZvi Memorial Book, ed. Menachem Mautner, Avi Sagi, and Ronen Shamir, 545–87. Tel Aviv: Ramot. al-Ma¯wardı¯, Alı¯ b. Muh.ammad. 1994. Al-H.a¯wı¯ al-Kabı¯r fı¯ Fiqh Madhhab al-Ima¯m al-Sha¯fiı¯. 19 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Maws.ilı¯, Abd Alla¯h b. Mah.mu¯d. 1951. Al-Ikhtiya¯r li-Talı¯l al-Mukhta¯r. 5 vols. Cairo: Mus.t.afa¯ al-Ba¯bı¯. Al-Mawsu¯a al-Fiqhiyya. 1983–92. 26 vols. Al-Kuwait: Wiza¯rat al-Awqa¯f wal-Shuu¯n al-Isla¯miyya. Messick, Brinkley. 2006. “Commercial Litigation in a Sharı¯a Court.” In Masud, Peters, and Powers 2006, 195–218. Mir-Hosseini, Ziba. 2000. Marriage on Trial: A Study of Islamic Family Law. London: I. B. Tauris. Mohsen, Safia K. 1971. “Quest for Order among Awlad Ali of the Western Desert in Egypt.” Ph.D. diss., Michigan State Univ. Moore, Sally Falk. 1978. Law as Process: An Anthropological Approach. London: Routledge and Kegan Paul. al-Muba¯rakafu¯rı¯, Muh.ammad Abd al-Rah.ma¯n b. Abd al-Rah.¯ım. 1990. Tuh.fat al-Ah.wadhı¯ bi-Sharh. Ja¯mi al-Tirmidhı¯. 11 parts in 10 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Muh.ammad, al-Sayyid Khalaf. 1982. Majmu¯at al-Maba¯di al-Qa¯nu¯niyya allatı¯ Qararatha¯ Mah.kamat al-Naqd., al-Da¯ira al-Madaniyya wa-Da¯irat al-Ah.wa¯l al-Shakhs.iyya wal-Haya al-A¯mma, fı¯ Khams Sanawa¯t (January 1975–January 1980). Cairo: Da¯r al-T.iba¯a al-H . adı¯tha. Musallam, B. F. 1983. Sex and Society in Islam: Birth Control before the Nineteenth Century. Cambridge: Cambridge Univ. Press. el-Nahal, Galal H. 1979. The Judicial Administration of Ottoman Egypt in the Seventeenth Century. Minneapolis: Bibliotheca Islamica. Nasir, Jamal J. 1990. The Status of Women in Islamic Law and in Modern Islamic Legislation. London: Graham and Trotman. Naveh, Immanuel. 1997. “Application of the Sharı¯ a in Civil Courts in the Twentieth Century: A Comparative Study Based on Decisions of Civil Courts in Matters of Personal Status and Waqf of Muslims in a Muslim State (Egypt) and in a Non-Muslim State (Israel)” [in Hebrew]. Ph.D. diss., Hebrew Univ. of Jerusalem.

258

References

al-Nawawı¯, Abu¯ Zakariyya¯ Yah.ya¯ b. Sharaf Muh.yı¯ al-Dı¯n. 1992. Rawd.at al-T.a¯libı¯n. 8 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Nuwayrı¯, Ah.mad b. Abd al-Wahha¯b. 1933, 1990. Niha¯yat al-Arab fı¯ Funu¯n al-Adab. 31 vols. Cairo: Da¯r al-Kutub al-Mis.riyya. Peirce, Leslie. 2003. Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley and Los Angeles: Univ. of California Press. Peters, Rudolph. 2005. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge: Cambridge Univ. Press. Powers, David S. 2002. Law, Society, and Culture in the Maghrib, 1300–1500. Cambridge: Cambridge Univ. Press. Qadrı¯ Pasha, Muh.ammad. 1928/29. Kita¯b al-Ah.ka¯m al-Shariyya fil-Ah.wa¯l alShakhs.iyya ala¯ Madhhab al-Ima¯m Abı¯ H . anı¯fa al-Numa¯n. Cairo: Al-Mat.baa al-Uthma¯niyya al-Mis.riyya. al-Qara¯fı¯, Shiha¯b al-Dı¯n Ah.mad b. Idrı¯s. 2001. Kita¯b al-Furu¯q: Anwa¯r al-Buru¯q fı¯ Anwa¯ al-Furu¯q. 4 vols. Cairo: Da¯r al-Sala¯m. al-Qa¯simı¯, Muh.ammad Saı¯d (vol. 1); Al-Qa¯simı¯, Jama¯l al-Dı¯n and Khalı¯l al-Az.m (vol. 2). 1960. Qa¯mu¯s al-S.ina¯a¯t al-Sha¯miyya. 2 vols. Paris: Mouton and Co. La Haye. al-Qurt.ubı¯, Muh.ammad b. Ah.mad al-Ans.a¯rı¯. 1995. Al-Ja¯mi li-Ah.ka¯m al-Qura¯n. 10 vols. Beirut: Da¯r al-Fikr. Qutb, Sayyid. 1999. In the Shade of the Quran (Fi Zilal al-Quran). Trans. and ed. by M. A. Salahi and A. A. Shamis. 5 vols. Leicester, UK: Islamic Foundation. Rabkin, Yakov M. 1992. “Conceptual Issues in the History of Science in Nonwestern Societies.” In Transfer of Modern Science and Technology to the Muslim World, ed. Ekmeleddin Ihsanoglu, 59–66. Istanbul: IRCICA. al-Ramlı¯, Khayr al-Dı¯n. 1893/94. Kita¯b al-Fata¯wı¯ al-Khayriyya li-Naf  al-Bariyya ala¯ Madhhab al-Ima¯m al-Az.am Abı¯ H.anı¯fa al-Numa¯n. 2 vols. N.p.: AlMat.baa al-Uthma¯niyya. Rid.a¯, Muh.ammad Rashı¯d. 1970. Fata¯wı¯ al-Ima¯m Muh.ammad Rashı¯d Rid.a¯. 4 vols. Beirut: Da¯r al-Kita¯b al-Jadı¯d. ———. 1999. Tafsı¯r al-Qura¯n al-H . akı¯m [Tafsı¯r al-Mana¯r]. 12 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Rispler-Chaim, Vardit. 1993. Islamic Medical Ethics in the Twentieth Century. Leiden: Brill. Rosen, Lawrence. 1989. The Anthropology of Justice: Law as Culture in Islamic Society. Cambridge: Cambridge Univ. Press. ———. 2000. The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford: Oxford Univ. Press. Sabra, Adam I. 1987. “The Appropriation and Subsequent Naturalization of Greek Science in Medieval Islam: A Preliminary Statement.” History of Science 25:223–43.

References

259

S.afadı¯, khalı¯l b. Aybak. 1972. Kita¯b Nus.rat al-Tha¯ir ala¯ al-Mathal al-Sa¯ir. Damascus: Mat.baat Kha¯lid al-T.ara¯bı¯shı¯. Sahar, Avraham. 2003. Laws of Expert Testimony: Principles, Judicial Procedures and Ethics [in Hebrew]. Tel Aviv: Hoshen le-Mishpat. al-Sarakhsı¯, Muh.ammad b. Ah.mad. 1993a. Kita¯b al-Mabsu¯t.. 30 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. ———. 1993b. Us.u¯l al-Sarakhsı¯. 2 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Schacht, Joseph. 1964. An Introduction to Islamic Law. Oxford: Clarendon Press. Schereschewsky, Benzion. 1974. Family Law in Israel. 2nd ed. Jerusalem: Rubin Mass. al-Sha¯fiı¯, Muh.ammad b. Idrı¯s. 1903. Kita¯b al-Umm. 7 vols. Cairo: Al-Mat.baa alKubra¯ al-Amı¯riyya. ———. 1993. Al-Umm. 8 vols. Beirut: Da¯r al-Kutub al-Ilmiyya. Shaham, Ron. 1997. Family and the Courts in Modern Egypt: A Study Based on Decisions by the Sharı¯ a Courts, 1900–1955. Leiden: Brill. ———. 2003. “Revealing the Secrets of the Body: Medical Tests as Legal Evidence in Personal Status Disputes in Modern Egypt.” Medicine and Law 22:131–54. Shahar, Ido. 2007. “Legal Reform, Interpretive Communities and the Quest for Legitimacy: A Contextual Analysis of a Legal Circular.” In Law, Custom and Statute in Islamic Societies: Studies in Honor of Aharon Layish, ed. Ron Shaham, 199–227. Leiden: Brill. Shatzmiller, Maya. 1994. Labour in the Medieval Islamic World. Leiden: Brill. al-Shayzarı¯, Abd al-Rah.ma¯n b. Nas.r. 1946. Kita¯b Niha¯yat al-Rutba fı¯ T.alab alH.isba. Cairo: Mat.baat Lajnat al-Talı¯f wal-Tarjama wal-Nashr. Shefer, Miri. 2002. “Medical and Professional Ethics in Sixteenth-Century Istanbul: Towards an Understanding of the Relationships between the Ottoman State and the Medical Guilds.” Medicine and Law 21:307–19. ———. 2003. “Charity and Hospitality: Hospitals in the Ottoman Empire in the Early Modern Period.” In Poverty and Charity in Middle Eastern Contexts, ed. Michael Bonner, Mine Ener, and Amy Singer, 121–43. Albany: State Univ. of New York Press. ———. 2009. Ottoman Medicine: Healing and Medical Institutions, 1500–1700. Albany NY: State Univ. of New York Press. Shı¯ra¯zı¯, Abu¯ Ish.a¯q. 1996. Al-Muhadhdhab fı¯ Fiqh al-Ima¯m al-Sha¯fiı¯. 6 vols. Damascus: Da¯r al-Qalam and al-Da¯r al-Sa¯miyya. Shula, Saı¯d Ah.mad. 1998. Qad.a¯ al-Naqd. fı¯ Nadb al-Khubara¯: Majmu¯at alQawa¯id al-Qa¯nu¯niyya allatı¯ Qararatha¯ Mah.kamat al-Naqd. bi-Dawa¯iriha¯ alMadaniyya wal-Jina¯iyya Khilal 76 A¯mman. Alexandria: Munshaat al-Maa¯rif. Sonbol, Amira El-Azhary. 1991. The Creation of a Medical Profession in Egypt 1800–1922. Syracuse, NY: Syracuse Univ. Press. ———. 2003. Women of Jordan: Islam, Labor, and the Law. Syracuse, NY: Syracuse Univ. Press.

260

References

Stewart, Frank H. 2006. “Customary Law among the Bedouin of the Middle East and North Africa.” In Nomadic Societies in the Middle East and North Africa, ed. Dawn Chatty, 239–79. Leiden: Brill. Stoler, Ahikam, and Yoram Plotzki. 2001. “DNA on the Witness Stand” [in Hebrew]. Medicine and Law, Jubilee Book, 143–64. Subkı¯, Ta¯j al-Dı¯n Abd al-Wahha¯b b. Alı¯. 1948. Muı¯d al-Niam wa-Mubı¯d al-Niqam. Cairo: Da¯r al-Kita¯b al-Arabı¯. ———. 1992. T.abaqa¯t al-Sha¯fiiyya al-Kubra¯. 2nd ed. 10 vols. + index vol. in 7 books. Jiza: Hajr. Surty, Muhammad Ibrahim. 1999. “The Institution of Hisbah and Its Impact on the Health Sciences from the Seventh to the Thirteenth Century CE.” Islamic Quarterly 43:5–20. al-Suyu¯t.¯ı, Jala¯l al-Dı¯n. 1959. Al-Ashba¯h wal-Naz.a¯ir fı¯ Qawa¯id wa-Furu¯ Fiqh alSha¯fiiyya. Cairo: Mat.baat Mus.t.afa¯ al-Ba¯bı¯ al-H . alabı¯. T.abarı¯. 1987. The History of al-T.abarı¯ (Tarı¯kh al-Rusul wal-Mulu¯k). Vol. 2, Prophets and Patriarchs. Trans. and annotated by William M. Brinner. Albany: State Univ. of New York Press. ———. 1991. The History of al-T.abarı¯ (Tarı¯kh al-Rusul wal-Mulu¯k). Vol. 3, The Children of Israel. Trans. and annotated by William M. Brinner. Albany: State Univ. of New York Press. al-T.aba¯t.aba¯ı¯, Muh.ammad H . usayn. 1991. Al-Mı¯za¯n fı¯ Tafsı¯r al-Qura¯n. 21 vols. Beirut: Muassasat al-Alamı¯ lil-Mat.bu¯a¯t. al-T.abrisı¯, Fad.l b. al-H . asan. 1985. Jawa¯mi al-Ja¯mi fı¯ Tafsı¯r al-Qura¯n al-Majı¯d. 2 vols. Beirut: Da¯r al-Ad.wa¯. T.ara¯bulsı¯, Ala¯ al-Dı¯n Alı¯ b. Khalı¯l. 1973. Muı¯n al-H.ukka¯m fı¯ma¯ Yataraddad bayn al-Khas.mayn min al-Ah.kam. 2nd ed. Cairo: Mat.baat Mus.t.afa¯ al-Ba¯bı¯ al-H . alabı¯. Taylor, Robert F. 1996. “A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practice, and Procedure.” Texas International Law Journal 31:181–213. al-Thaa¯libı¯, Abd al-Rah.ma¯n b. Makhlu¯f. 1997. Al-Jawa¯hir al-Hassa¯n fı¯ Tafsı¯r alQura¯n. 3 vols. Beirut: al-Mat.baa al-As.riyya. Timmerbeil, Sven. 2003. “The Role of Expert Witnesses in German and U.S. Civil Litigation.” Annual Survey of International and Comparative Law 9:163–87. Tirmidhı¯, Muh.ammad b. I.sa¯. 1991. Al-Ja¯mi al-S.ah.¯ıh. [Sunan al-Tirmidhı¯]. 5 vols. Cairo: Da¯r Ih.ya¯ al-Tura¯th al-Arabı¯. Toledano, Ehud R. 1998. Slavery and Abolition in the Ottoman Middle East. Seattle: Univ. of Washington Press. Tucker, Judith E. 1998. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley and Los Angeles: Univ. of California Press. al-T.ulayt.ulı¯, Ah.mad b. Murı¯th. 1994. Al-Muqni fı¯ Ilm al-Shuru¯t.. Introduction and critical edition by Francisco Javier Aguirre Sadaba. Madrid: C.S.I.C.

References

261

Tyan, Emile. 1955. “Judicial Organization.” In Law in the Middle East, ed. M. Khadduri and H. J. Liebesny, vol. 1, Origin and Development of Islamic Law, 236–78. Washington, DC: Middle East Institute. ———. 1960. Histoire de l’organisation judiciaire en pays d’Islam. 2nd ed. 2 parts in 1 vol. Leiden: Brill. Uthma¯n, A¯ma¯l Abd al-Rah.¯ım. 1964. Al-Khibra fı¯ l-Masa¯il al-Jina¯iyya: Dira¯sa Qa¯nu¯niyya Muqa¯rina. Cairo: Da¯r wa-Mat.a¯bi al-Shab. Van Leeuwen, Robert. 1999. Waqfs and Urban Structures: The Case of Ottoman Damascus. Leiden: Brill. Van Staëvel, Jean-Pierre. 2001. “Savoir faire et le faire savoir: L’expertise judiciaire en matière de construction, d’après un auteur tunisois du 8e/XIVe siècle.” Annales Islamologiques / H.awlı¯ya¯t Isla¯mı¯ya 35:627–62. Vogel, Frank E. 2000. Islamic Law and Legal System: Studies of Saudi Arabia. Leiden: Brill. Wadghı¯rı¯, Kama¯l. 2001. Al-Khibra fı¯ l-Qa¯nu¯n al-Maghribı¯: Dira¯sa Tas.¯ıliyya waTat.bı¯qiyya. N.p.: Mat.baat Abı¯ Fa¯s. al-Wa¯h.idı¯, Alı¯ b. Ah.mad. 1995. Al-Wajı¯z fı¯ Tafsı¯r al-Kita¯b al-Azı¯z. 2 vols. Beirut: al-Da¯r al-Sha¯miyya. al-Wansharı¯sı¯, Ah.mad b. Yah.ya¯. 1981. Al-Miya¯r al-Murı¯b wal-Ja¯mi al-Mughrı¯b an Fata¯wı¯ Ulama¯ Ifrı¯qiya¯ wal-Andalus wal-Maghrib. 13 vols. Beirut: Da¯r al-Gharb al-Isla¯mı¯. Weinstock, Neil Netanel. 1986. “Expert Opinion and Reform in Anglo-American, Continental, and Israeli Adjudication.” Hastings International and Comparative Law Review 10:9–55. Weitzman, Tzvi. 2004. “Establishment of Paternity—Between Jewish Law and Civil Law.” The Interdisciplinary Program on Law, Rationality, Ethics and Social Justice. Bar-Ilan University, the Law Faculty, position paper no. 6–04, 1–16. http://www.biu.ac.il/law/unger/wk_papers.html. Westreich, Elimelech. 1996. “Medicine and Natural-Science in the Rabbinical Courts of Israel” [in Hebrew]. Mishpatim 26:425–92. White, Elizabeth H. 1978. “Legal Reform as an Indicator of Women’s Status in Muslim Nations.” In Women in the Muslim World, ed. Louis Beck and Nikki Keddie, 52–68. Cambridge, MA: Harvard Univ. Press. Wuerth, Anna. 2008. “Investigating and Prosecuting Police Abuse in Egypt.” In Narratives of Truth in Islamic Law, ed. Baudouin Dupret, Barbara Drieskens, and Annelies Moors, 265–87. London: I. B. Tauris. Yanagihashi, Hiroyuki. 1998. “The Doctrinal Development of Marad. al-Mawt in the Formative Period of Islamic Law.” Islamic Law and Society 5:326–58. Ya¯qu¯t, Shiha¯b al-Dı¯n b. Abd Alla¯h al-H . amawı¯. 1866. Kita¯b Mujam al-Bulda¯n. 5 vols. Leipzig: F. A. Brockhaus. Yu¯suf, Abd al-H . ası¯b Abd al-Sala¯m. 1987. Al-Qa¯d.¯ı wal-Bayyina. Kuwait: Maktabat al-Mala¯.

262

References

Zafran, Ruth. 2002. “Whose Child Are You? The Israeli Paternity Regularization and Its Flaws” [in Hebrew]. Hapraklit 46:311–41. al-Zah.¯ılı¯, Wahba. 1994. Al-Tafsı¯r al-Wajı¯z ala¯ Ha¯mish al-Qura¯n. Damascus: Da¯r al-Fikr. Zaı¯m, Ibra¯him. 1993. Niz.a¯m al-Khibra fil-Qa¯nu¯n al-Maghribı¯: Tah.lı¯l Muqa¯rin waTat.bı¯qı¯. Marakesh: Maktabat Alı¯lı¯. Zaydan, Abd al-Karim. 1994. Al-Mufas.s.al fı¯ Ah.ka¯m al-Mara wal-Bayt al-Muslim fil-Sharı¯ a al-Isla¯miyya. 11 vols. Beirut: Muassasat al-Risa¯la. Zeevi, Dror. 1998. “The Use of Sharı¯a Court Records as a Source for Middle Eastern Social History: A Reappraisal.” Islamic Law and Society 5:35–56. Ziadeh, Farhat J. 1990. “Integrity (Ada¯lah) in Classical Islamic Law.” In Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh, ed. Nicholas Heer, 73–93. Seattle: Univ. of Washington Press. Ziriklı¯, Khayr al-Dı¯n. 1980. Al-Ala¯m. Qa¯mu¯s Tara¯jim. 8 vols. Beirut: Da¯r al-Ilm lil-Mala¯yı¯n.

index

abb h.aqı¯qı¯ (“real” father), 180 Abba¯sid, 84 Abd al-Azı¯z, Abu¯ Bakr, 39 Abduh, Muh.ammad, 49 ABO blood-group theory, 160 abortion: determination of the stage of fetal development, 90; implications of “formed” and “unformed” fetuses, 90, 222nn38,39,40; legal implications for slaves, 91; midwife involvement in, 90; in premodern Muslim societies, 89–91, 222nn38,39,40; use as birth control, 89–90 Abu¯ al-Suu¯d, Sheikh al-Islam, 102–3 Abu¯ H . anı¯fa, 34, 39, 49, 61, 91, 92, 93, 95, 131, 180 Abu¯ Yu¯suf, 37, 39, 91, 95 Abu¯ Zahra, Muh.ammad, 138 acknowledgment (iqra¯r), 40 Adeni, 64 adjudicator, 74 adl (upright person), 31, 204n22 administer of property of orphans (amı¯n al-h.ukm), 56 adultery (zina¯): circumstantial evidence allowed in cases, 89; claims of virginity and, 86; false accusation

of (qadhf ), 87; implications of using DNA tests in paternity cases, 180, 244nn109,110,111; prohibition on using paternity tests to prove, 169–70; rulings on paternity and, 155 adversarial counsel, 10, 13 “advisory expert” (khabı¯r istisha¯rı¯ ), 116 age of marriage determination, 87–88, 122–23 agriculture experts, 4, 28, 62 agu¯na (chained woman), 183, 246n127 ahl al-bas.ar (experts), 41–42 ahl al-ilm (knowledgeable people), 43 ahl al-kita¯b (“People of the Book”), 28 ahl al-khibra. See expert witnesses ahl al-khibra min al-nisa¯ (expert women), 90 ahl al-marifa (knowledgeable people), 6 ahl al-naz.ar (people of insight), 6 AIDS, 137 Ajı¯la, A¯s.im Ah.mad, 29, 108 ajr al-mithl (appropriate price of rent), 102 akriya¯ (renters of beasts), 64 A¯l al-Sheikh, S.a¯lih., 171 Aleppo, 85

264

Index

Alı¯ b. Abı¯ T.a¯lib, 29, 34, 94 Alon, Menachem (judge), 167 Ama¯ra, Muh.ammad, 160 ambiguity (shubha), 52, 87, 89 amı¯n (expert for a craft), 4 amı¯n al-h.ukm (administer of property of orphans), 56 analogy (qiya¯s), 53 ancient (qadı¯m), 9 Andarash, 86 Anglo-American court systems: acceptance of science in family law, 191; difficulties in moving towards expert witnessing, 15; physicians’ duty to report and advise, 71; political cultures’ role in how experts are used and viewed, 192; registered experts function in the courts, 227n39. See also English common-law system; United States legal system animals: experts used in economic disputes, 64; experts used to identify defects, 59; opinions sought in slaughtering of, 74–75, 216nn109,110,111 annulling a sale ( faskh), 69 apparent (z.a¯hir), 46 applied fiqh ( furu¯), 11 aqd qawiyy (strong contract), 95 al-Aqlı¯, Alı¯, 159 Arabia, 65 Arab tribal laws use of expert witnesses, 8 arbitrator role of the divider, 66 architects and builders, 11; called in cases involving waqf properties, 79–80, 218nn131,132; called upon in groups to inspect buildings, 78–79, 218n127; central role in constructionrelated lawsuits, 78; creation of detailed land use reports, 78; execution of construction works assigned by qadis, 77–78; experts’ start as interns,

76; exposure to pressure from qadis, 76–77; formularies of involvement in transactions, 80, 219nn133,134,135; function as court advisers or hired help, 76, 218n121; involvement in criminal proceedings and inheritance settlements, 79; number of experts typically used, 76; partisan considerations when expert is hired, 76; scope of advice given by, 80–81; situations requiring construction expertise, 75; use as experts throughout the Middle East, 78; use as expert witnesses in Egyptian courts, 118; use in economic disputes, 62 arı¯f, pl. urafa¯ (male expert, certified truth-bringer), 4, 57 arı¯fa, pl. a¯rifa¯t (knowledgeable women), 89. See female experts arithmetic, 17 arsh al-ayb (compensation for a defect), 69 arsh, arsh al-jina¯ya/jina¯ya¯t, arsh aljira¯h.a¯t (compensation for physical injuries based on tariff lists), 72 Asbagh b. Muh.ammad, 70 assessment (taqwı¯m), 45 assessor (muqawwim): for estimating quantities of dates or grapes, 65; evaluation of a price discount for damaged property, 64, 213n48; examples of arguments settled by, 44, 208n74; expert status, 32, 33; kha¯ris.’s role, 28, 44; as a land expert, 64; need for in economic disputes, 63– 64, 65, 213nn43,44,45,48; required number of expert witnesses, 43–44, 208n75; role in valuing immovable property, 63–64, 213nn41,43,44; salaries for, 66, 214nn62,63; situations requiring an assessor, 63 assessor of damages (qayyim almutlafa¯t), 50

Index

astronomy, 17 al-Asyu¯t.¯ı, Shams al-Dı¯n, 66 “attractions of females” (mah.a¯sin alnisa¯), 94 autopsies, 18 Aviner, Shlomo, 184 awn (court aid), 57 ayb (physical defect), 86 ayb mustah.kam (chronic affliction), 123 Ayyubid, 49, 78 al-az.har (strongest), 44 al-Ba¯b al-A¯lı¯, 78 ba¯b al-ikhba¯r (field of reports), 31 ba¯b al-shaha¯da¯t (field of testimonies), 31 badal (substitute), 36 Baha¯ al-Dı¯n, 79 al-Bah.r al-Ra¯iq, 102 ba¯in (final), 128 ba¯ligh (major person), 68 Banu¯ Mudlij, 47 baras. (leprosy), 68, 136 barber-circumciser (h.alla¯q), 73 bas.ar (insight), 28 basic evidence (h.ujja as.liyya), 49 al-Bas.rı¯, H . asan, 180 bastard child (mamzer): in Egyptian vs. Jewish law, 181–82; Israeli desire to avoid bastardization of a child, 165–66, 183; midwives called on in cases of, 84 bawwa¯b (court gate-keeper), 57 bayt.a¯r, pl. baya¯t.ira. See veterinarians bayyina (evidence), 7 Bayyu¯mı¯, Abd al-Mat.¯ı, 179, 180, 186 benefit (manfaa), 36–37 bida (innovation), 18 binding (ilza¯m), 52 binding testimony (shaha¯da mulzima), 36 binding effect (ilza¯m), 40, 52 birth and female experts, 7; birth claims of divorced women and, 130–33,

265

234nn40,44,46; differing opinions over number of midwives required when a pregnancy is denied, 91–92, 223n48; midwife testimonies regarding post-divorce births, 92; midwife testimony acceptability with regard to paternity, 92; slave issues and, 92 birth control and abortion, 89–90 blind men as translators, 40 blood-group tests: authority of courts to order, 163–66; blood-group theory’s probative value, 160, 239nn27,28; clash between sanctified and scientific knowledge, 19, 202n56; paternity and, 22, 160 blood money (diya): evaluation of a murdered slave and, 71; experts used in Arab tribal law, 74, 216n108; first cry of the newborn verification and, 93, 223n52; number of experts required, 208n75; physician’s expertise needed in injury or murder cases, 43, 72; regarding abortions, 90; use of knowledgeable females to inspect women with injuries, 96; verification of adultery by female experts, 87 Bohadana v. Plonit, 165 breast-feeding, 94 breasts, emergence of (inba¯t watanhı¯d), 87 Britain. See English common-law system Brown, Nathan, 15, 103 Brunschvig, Robert, 7, 38, 55, 75 builders, 6, 11. See also architects and builders Bulaq, Cairo, 62 bulı¯na¯ (uremia), 144 Bursa, 73 al-Burzulı¯, 68 Cairene, 78 Cairo, 79, 85, 86, 125 caution (ih.tiya¯t.), 35

266

Index

certain evidence (h.ujja qat. iyya), 29 certified truth-bringers (arı¯f ), 4 chained woman (agu¯na), 183, 246n127 charity tax, 60 chief judge (qa¯d.¯ı al-qud.a¯t), 78 Children’s Act, Britain, 164 Christian church. See Roman Catholics chronic affliction (ayb mustah.kam), 123 circumcision and malpractice, 67 circumstantial evidence (qarı¯na): of adultery, 89; in civil cases, 5, 116, 200n19; considered in a case of contested birth, 132; considered in a case of contested pregnancy, 130; in fiqh, 38; in sharia courts, 108 civil-law systems: criteria for classifications of legal systems and, 10–11; Egyptian, 103–4, 106, 119; European, 15, 16, 19; mortal illness and, 139–40; nomination of experts by judges, 106 claim (khus.u¯ma), 41 clarification of a situation (istiksha¯f al-h.a¯l), 103, 224n6 clarifying testimony (shaha¯dat alistiksha¯f ), 103, 224n7 Code of Civil Procedure, France, 115 code of evidence (qa¯nu¯n al-ithba¯t), 107 Code of Evidence for Civil and Commercial Lawsuits (Egypt), 108 code of procedure (qa¯nu¯n almura¯faa¯t), 107 cohen, 58 Cohn, Haim, 159, 167 colic (qawlinj), 136 colonial powers influence on Egypt, 15 Committee of Registered Experts (Lajnat Khubara¯ al-Jadwal), 16, 228n46 common law: criteria for classifications of legal systems and, 10; expert defined as an advisory figure, 229n52; distinctions based on manner of supplied evidence, 105–6; in England

(see English common-law system); judge basis of Continental system, 104, 105, 225n10; procedural options for using experts, 58, 211nn12,13; two parties plus jury basis of system, 104; use by Islamic and Jewish law, 10 Companions, 34 compensation for a defect (arsh al-ayb), 69 compensation for bodily damage, 90 complete evidence (h.ujja ta¯mma), 93 considerable defect (ayb mutabar), 69 construction experts, 4, 11, 59–60. See also architects and builders the Constructor. See Ibn al-Ra¯mı¯ constructor, 63 Consulting Council, Egypt (Majlis Istisha¯rı¯), 111, 227n41 consummation of marriage, 85, 124 Continental system, 103–4, 105, 225n10 Cordoba, 84, 96 corpse washer (mughassil ), 72 Coulson, Noel James, 23 court aid (awn), 57 court gate-keeper (bawwa¯b), 57 Court of Cassation, Egypt (Mah.kamat al-Naqd.), 16, 107, 111, 114, 116. See also Egyptian expert system Court of Cassation, France, 227n37 Court of First Instance, Cairo, 125, 127 court secretaries in Ottoman courts, 6 court of appeal (mah.kama istinaa¯fiyya), 111 court of first instance (mah.kama ibtida¯iyya), 111 court of summary justice (mah.kama juziyya), 111 criminal investigations: Jewish prohibition on DNA testing in criminal cases, 183; procedures in English common law, 13; use of expert witnesses, 57, 82 cruel beating (d.arb mubarrih.), 126

Index

custody of minor children, 127–28, 233nn27,29 customs, 2 dalı¯l (indicator), 28 dalı¯l al-ithba¯t (“probative indicator”), 107 dalı¯l al-nasab. See paternity dalı¯l fannı¯ (“professional evidence”), 107 dam mayt (blood of a corpse), 72 Da¯r al-Ifta¯, 139 d.arar (injury), 124, 126 d.arb mubarrih. (cruel beating), 126 d.aru¯ra (necessity, need), 49, 51, 54 dayyan (Jewish judge), 58. See also qadis (Islamic judge) defects assessment by physicians: justification for relying on only one expert, 43; number needed in cases of physical defects, 43, 207n70; number needed in matters of monetary rights, 43; number needed to determine mental illness, 42–43, 207n69; number needed to rule on a physical defect, 41–42, 206nn55,56; report vs. testimony, 42; status as an informer, 42, 207n67 defects or disorders of the husband: centralized judicial supervision of related fact-finding, 125–26; defects and diseases defined, 123–24; injury as grounds for dissolution of a marriage, 126–27, 233n25; proof of a wife’s virginity and, 86; sexual impotence as cause for dissolution of marriage, 124–25 Deichovsky (judge), 184, 185, 186 deputies (khulafa¯), 46 deputy of the qadi (na¯ib, pl. nuwwa¯b al-qa¯d.¯ı ), 57, 108 determination of the evidence (taqarrur al-h.ujja), 37

267

dha¯t al-janb (pleurisy), 136 dhu¯ khibra (expert), 44 direction of prayer (qibla), 33 disabled (muqad), 136 Disciplinary Council, Egypt (Majlis Tadı¯b), 111, 227nn43,45 discretionary punishment (tadı¯b), 73 disease that causes fear (marad. mukhawwif ), 136 divider of estates (qa¯sim, pl. qa¯simu¯n): area of expertise, 63; expert status, 32, 33; inheritance cases, 65, 213n56; number required, 44–46; salaries for, 66, 214nn62,63 division of assets. See dividers of estates divorce: birth claims of divorced women, 130–33, 234nn40,44,46; exclusion of female testimony, 48; maintenance payment requirement for pregnancy, 88; midwife testimonies regarding post-divorce births, 92; mortal illness cases and, 140–42; notaries role, 4; pregnancy determination, post-divorce, 128–30; scholars on the rights of a divorcee, 135; verification of pregnancy in cases, 128–29 diya. See blood money DNA tests: authority of courts to order blood tests, 163–66; Egyptian law compared to Israeli law, 182–84; establishment of paternity and, 22, 161, 239n33; non-Muslim court practice regarding use of genetic tests, 166–67; opinions regarding implications of using in paternity cases, 180, 244nn109,110,111; probative value of genetic test results, 166–67, 240n50; public pressure to allow as evidentiary device in paternity cases, 178, 243nn100,102,103; socio-moral results of reliance on genetic findings, 186

268

Index

documents authenticity verification, 56 dropsy (istisqa¯), 137 Dupret, Baudoin, 125 dyer (s.abba¯gh), 62 economic disputes and the use of experts: agricultural experts use, 62; animal experts for rentals of beasts, 64, 213n51; assessors and dividers of estates, 50, 63–64, 65, 213nn43,44,45,48; assessors for quantity of dates or grapes, 65; assessors to decide between grave and minor defects, 64; cases requiring an expert from a related profession, 61–62, 212n30; cases when expert process knowledge is required, 62–63; experts as representatives of the ethics of their profession, 62; expert status decided by fellow practitioners, 61; inheritance cases, 65–66, 213n56; paying of assessors and dividers, 66, 214nn62,63; situations requiring experts, 60–61 Egypt: adoption of civil-law model for expert witnesses, 15–16; establishment of paternity, 22; historical writings on use of experts, 29; midwives called on to verify virginity, 85; use of expert witnesses (see Egyptian expert system) Egyptian expert system: aids of judges as described in the Code on Judicial Authority, 108; Arabic literature on expert testimony, 105, 225n13; basis in code of evidence, 107; “clarifying testimony” and, 119; codified probative means to acquire knowledge, 108; common law’s distinctions based on manner of supplied evidence, 105–6; departure from fiqh traditions, 119; differences in judge’s role in legal systems, 104–5; Euro-

pean civil-law model similarities, 119; expert defined as an advisory figure, 108, 119, 226n23; expert testimony seen as an inspection, 108–9, 113–15, 119, 226n32; impact of scientific and technical developments on expert witnessing, 105; judges’ role in Continental system, 104, 225n10; legal system reforms based on Continental civil-law model, 103–4; Majalla references to experts, 102–3; Majalla references to female testimony, 102–3; Majalla use of sharı¯ concepts, 103, 224nn6,7; medical cases (see modern medicine and the Egyptian courts); mentions of experts in Ottoman legislation, 103; nomination of experts by judges in civil-law systems, 106; organization (see Egyptian expert system organization); payment for expert’s services, 230n68; positions concerning the legal nature of expertise, 106–7, 225n19; two parties plus jury basis of common-law system, 104; Western legal systems’ influence on, 101; witnesses vs. experts, 107 Egyptian expert system organization: abuses of the expert system, 118–19, 232n86; courts within the system, 111–12, 228n46; criticisms that judges rely too much on experts, 118, 231n84; criticisms that judges use experts too often, 114, 229n55; disciplinary procedures for registered experts, 113; expert opinion as nonbinding, 117, 231n76; expert’s process once assigned to a case, 116–17, 230n69; expert testimony seen as an inspection, 113–14; hierarchy of nonmedical official experts, 112–13; modern requirement for formal diplomas for experts, 112; oath taking, 112, 228n49; opinions concerning

Index

the number of experts to use, 115–16, 230n61; procedures and conditions concerning experts in the laws, 116; prohibition on experts used for legal issues, 114; qualifications required of expert witnesses, 112; registered and official experts, 110–11; registered experts function in the courts, 110, 227nn37,38,39; regulation of activity of official experts, 111, 227nn41,45; required number of experts, 114–15; review of the expert’s findings by the court, 117; sharia courts and use of witnesses, 109–10; use of experts in a wide variety of fields, 117–18; written legal rules regarding use of experts, 109–10 ehl-i hiref (Ottoman guild members), 6 elephantiasis ( judha¯m), 68 embryo ( janı¯n), 90 Encyclopedia of Islam, 6 endowed assets (waqf ), 44 engineers, 6 English common-law system: changes in allowance and use of test results, 163–64; court practice regarding use of genetic tests, 166, 167; criminal procedure in, 13; expert system basis in code of evidence, 107; expert witness requirement, 14; function of, 104, 224n9; history of marital presumption of paternity, 156–57, 162–63; modern expert witnessing and, 12–13; options for using experts in common-law system, 58; paternity determination and, 156–57 essential meaning (mana¯ as.lı¯ ), 138 Europe: contacts with Ottoman medicine, 66; midwives in early modern, 84 European civil-law systems: acceptance of science as separate from religion, 19; acceptance of science in family

269

law, 191; change from traditional to modern expert witnessing, 15; ease of shift to modern expert witnessing, 15; influence on Egypt, 16 Examination Committee, Egypt (Lajnat al-Imtih.a¯n), 111, 227n42 expert (dhu¯ khibra), 44 expert (mukhbir), 30 Expert Administration (Ida¯rat alKhubara¯), 111 expert for a craft (amı¯n), 4 expertise (khibra), 108 expert female (a¯rifa, pl. a¯rifa¯t), 89 experts (ahl al-bas.ar), 41–42 experts of certain craft (ahl al-khibra min ahl al-s.ana), 30 expert witnesses (ahl al-khibra): analysis approach, 7–8, 22–24; contribution to legitimacy of court rulings, 189–90; histories of, 5–6, 9; lack of historical attention to, 6–7; Majalla references to, 102; mandate to abstain from referring to legal consequences, 191; in modern day (see modern medicine and the Egyptian courts); in Ottoman courts, 6; political cultures’ role in how experts are used and viewed, 191–93; probative status (see probative status of the expert); role as local fact finders and knowledgeable persons for the courts, 4–5; types of, 6; use as arbitrators in Morocco, 4; use in ancient legal systems, 8. See also Egyptian expert system; female experts; male experts; modern expert witnessing expert women (ahl al-khibra min al-nisa¯), 90 eye disease (ramad), 136 eye expert (kah.h.a¯l ), 74 Fadel, Mohammad, 38, 49, 55, 206n46 fa¯h.ish (grave), 64

270

Index

fa¯sid (irregular), 178 Family Court of al-Khalı¯fa, Cairo, 175 family law: acceptance of science in Anglo-American system, 191; continued use of “marriage bed” principle in Egypt, 167; dominance of marital presumption of paternity, 186–87; modern precedent of the preservation of the marital family, 190; oversight of by ulama¯, 20, 190; paternity dealt with as in fiqh, 181–82; reforms on Britain, 163–64; reluctance to use scientific means in, 190–91; sharia dominance over, 19–21 Family Law Reform Act, Britain, 163–64 farmers, 6 faskh (annulment), 69 fatwa¯, pl. fata¯wı¯/fata¯wa¯ (collections of legal opinions), 23 female expert (arı¯fa), 5; abortion issues (see abortion); allowance in matters involving the female body, 49, 203n5; allowed testimony, 6–7; birth issues (see birth and female experts); choice over male physicians, 68; degree of power and control earned in the patriarchal legal system, 97; evidence of wide-spread judicial use of midwives, 97; first cry of the newborn verification, 93; freedom requirement, 52; judicial role as expert witnesses, 11–12; juristic attitudes regarding numbers required, 50–52, 96–97; midwife guilds, 84, 220n11; midwifery in premodern Muslim societies, 84, 220n8; midwives’ function as helpers of municipalities and judges, 84–85, 220n13; midwives in early modern Europe, 84; moral integrity and religious conformity requirement, 84, 220n12; Muslim prohibition against men treating women, 83; number needed in cases of physical

defects, 43; opinions regarding extent of judiciary role of, 96; physical damage and forensic evidence and, 96; physical defects in female slaves and, 94–96; pregnancy determination, 88–89, 95, 222n34; puberty and competence for sexual intercourse determination, 87–88; reluctance to rely on female testimony, 32, 48–49, 87, 209n98; report vs. testimony and number required, 38–39, 54; role as khabar vs. shaha¯da, 97; separation of treatment for males and females in hospitals, 83, 219n4; standard vs. expert witnessing and, 49–50; status of females as witnesses, 38; suckling baby issues, 94; traditions concerning the testimony of women, 48, 50, 52, 209n96; two-to-one ratio of male to female allowances, 48, 52, 208n95; use by Moroccan courts, 4; virginity issues (see virginity) fever (h.umma¯ h.a¯dda), 136 Fez, 78 field of reports (ba¯b al-ikhba¯r), 31 field of testimonies (ba¯b al-shaha¯da¯t), 31 final (ba¯in), 128 financial matters. See monetary matters fiqh (Islamic science of law): allowance for circumstantial evidence, 38; compared to Israeli law regarding paternity (see paternity in Egyptian vs. Israeli law); discussions of specific injuries and use of experts, 73; discussions on rules of witnessing and reporting, 27; Egyptian expert system’s departure from, 119; experts as advisers or witnesses, 59; legal theory vs. applied law when studying, 22–23; on mortal illness, 136–38; paternity as family law in fiqh, 181–82; preference for eyewitness accounts, 5; recognition of

Index

information channels, 8; rulings on impotence claims, 86; secondhand testimony situations, 36–37, 205n40; term use, 199n1; use of knowledge of nature in a judicial context, 17 first cry of the newborn (istihla¯l), 49, 93 footprints as evidence, 200n28 forensic medical expert (t.abı¯b sharı¯ ), 142 Forensic Medicine Authority, Egypt (Mas.lah.at al-T.ibb al-Sharı¯), 110, 111 fornication, 84, 89 France: court practice regarding use of genetic tests, 166–67; expert defined as an advisory figure, 108, 229n52; experts in Code of Civil Procedure, 115; expert’s process once assigned to a case, 230n69; expert regarded as a delegate of the litigants, 226n23; expert system basis in code of evidence, 107; influences on Egyptian legal system, 15–16; nomination of an expert as optional, 229n53; payment for expert’s services, 230n68; recusal of an expert, 230n67; registered experts function in the courts, 110, 227n37; removal of experts from approved lists, 229n50; requirements for litigants to cooperate, 165; review of the expert’s findings by the court, 231n72 freeing of slave (tadbı¯r), 71 French Code of Civil Procedure, 230n63 French Code of Criminal Procedure, 227n37 al-Fulla¯nı¯, 28 furu¯  (applied fiqh), 11 al-Furu¯q, 31 Geertz, Clifford, 4 Genetic Data Law, Israel, 165 genetic tests. See DNA tests Geniza, 78

271

geometry, 17 Germany: court practice regarding use of genetic tests, 166, 167; expert system basis in code of procedure, 107; requirements for litigants to cooperate, 164–65; review of the expert’s findings by the court, 231n72 ghabn fa¯h.ish (grave fraud), 63 ghalabat al-z.ann (high probability), 67 Ghanem, Isam, 167 ghayr mumayyiz (undiscriminating), 33 al-Ghazza¯lı¯, 17 gift (hiba¯), 135 Giladi, Avner, 97 Golan, Tal, 12 Granada, 85 grave ( fa¯h.ish), 64 grave mistake (khat.a ja¯sim), 113 Greece, 8, 66 grounds for separation, 123 guarantors, 74 guardian (was.iyy), 130 guild members, Ottoman (ehl-i hiref ), 6, 57, 84 al-H . adda¯d, 102 h.add offense, 42, 59, 64, 87, 89, 155 h.adı¯th (report), 8 hadith on the selection of experts, 57, 58, 211n9 h.ajj (pilgrimage), 45 h.a¯kim (judge), 44, 45, 54 h.akı¯m (knowledgeable man), 29 h.a¯kima (midwife, modern), 134 halacha. See Jewish legal system h.a¯lat d.aru¯ra (state of necessity), 43 h.alla¯q (barber-circumciser), 73 Hallaq, Wael B., 57 H . anafı¯ civil law, 16 H . anafı¯ school: on custody of minor children, 127; definition of an embryo, 90, 90–91; definition of mortal illness, 136, 137, 138; evidence of

272

Index

H . anafı¯ school (continued) involvement of architects in building inspections, 78; experts as assistants of the qadis, 57; expert testimony references in the Majalla, 102–3; impotence of the husband as grounds for marriage dissolution, 124, 125; on inheritance rights of a divorcee, 135; legal duration of pregnancy and, 155; on the new moon of Ramad.a¯n, 34; on number of physicians needed to rule on a defect, 41, 54; on number of women required for testimony on a birth, 91–92; on paternity, 131, 155, 168–69, 180; physicians involvement in retaliation cases, 73; position on burden of proof in mortal illness cases, 139; on pregnancy and adultery, 89; rejection of physiognomy, 46, 157; rulings on impotence claims, 124; on slaves and defects, 69, 95; suckling baby issues, 94; on transmission and translation, 40; on use of assessors, 65; on use of female experts, 49, 50, 51, 86–87; on worship-related issues, 67 H . anbalı¯ school: on credibility of witnesses, 60; definition of an embryo, 90; definition of mortal illness, 136; experts used in criminal cases, 79; on inheritance rights of a divorcee, 135; legal duration of pregnancy and, 155; on mortal illness and inheritance rights, 135; on the new moon of Ramad.a¯n, 33–35; on number of physicians needed to rule on a defect, 54; on number of women required for testimony on a birth, 97; physical defects in slaves and, 69; physicians called on to determine severity of wounds, 43; suckling baby issues, 94; on transmission and translation, 40–41; types of

reports and, 33; on use of assessors, 44; on use of female experts, 51, 52, 86–87; on when experts’ opinions conflict, 60 handwriting experts, 61, 212n26 Hanna, Nelly, 78 h.aqq Alla¯h (“right of God”), 35 h.aqq al-shar (“right of God”), 37 al-H . a¯rith b. Kalada, 27 Hart, H. L. A., 2 H . as.kafı¯, 44 H . aydar, Alı¯, 102 Haykel, Bernard, 5 H.azal (Jewish Sages of Blessed Memory), 17 H.azal era, 184 headache (s.uda¯ ), 137 hearsay testimony, 15 Hendel (judge), 161 Hertzog, Rabbi, 184-186 hiba¯ (gift), 135 hidden (khafiyy), 46 hidden form (s.u¯ra khafiyya), 90 high probability (ghalabat al-z.ann), 67 high probability knowledge (z.ann ra¯jih.), 108 H.inna¯wı¯ v. Fisha¯wı¯, 22; agreement over the reliability of DNA testing, 177; appeal success based on presumption of marriage, 177; burden placed on the plaintiff by the ruling, 176; case background, 175–76, 242n87; courts’ inability to impose a DNA test, 176; impact of the case on debate over women’s rights, 177, 178; impact on marital presumption of paternity, 188; refusal to undergo DNA testing due to absence of a marriage contract, 175–76 h.isba literature, 57 HLA-typing tests, 22, 160–61, 185 h.okhma (wisdom), 17 honor (sharaf ), 85 hospital (ma¯rista¯n), 83

Index

H . udhayfa b. al-Yama¯n, 29, 50–52, 76 h.udu¯d (Qura¯nic punishments), 41, 82, 155 h.ujja as.liyya (basic evidence), 49 h.ujja d.aı¯fa (weak testimony), 95 h.ujja d.aru¯riyya (necessary testimony), 92 h.ujja qat.iyya (certain evidence), 29 h.ujja ta¯mma (complete evidence), 93 h.ukm (judgment), 9, 44 h.uku¯mat adl (compensation for physical injuries based on case-per-case assessment of disability), 72-73, 90 h.umma¯ h.a¯dda (high fever), 136 hunting experts, 61 h.uqu¯q al-iba¯d (personal rights), 93 husbands: diseases and disorders of, 123–27, 233n25; impotence of, 86, 124–25; paternity and (see paternity) huza¯l (thinness), 137 Ibb, 64 Ibn Abba¯s, 34, 94 Ibn Abd al-Azı¯z, Umar, 30 Ibn Abd al-Ra¯fi, 60, 77 Ibn A¯bidı¯n, 30, 41, 43, 44, 63, 74, 92, 95, 137, 139 Ibn Abı¯ Layla¯, 91 Ibn Abı¯ Waqqa¯s., Sad, 27 Ibn al-H . a¯jj, 87 Ibn al-H . a¯rith, Uqba, 50–52, 94 Ibn al-Huma¯m, 51 Ibn al-Khat.t.a¯b, Abd al-Rah.ma¯n b. Zayd, 34 Ibn al-Khat.t.a¯b, Umar, 29, 94 Ibn al-Ma¯jishu¯n, 42 Ibn al-Makwı¯, 136 Ibn al-Qat.t.a¯n, 60 Ibn al-Ra¯mı¯, 75, 76, 77 Ibn al-Shat.t., 40, 44 Ibn Atta¯b, 59 Ibn Ayn al-Dawla, Muh.yi al-Dı¯n, 79 Ibn Farh.u¯n, 38, 71, 80, 95 Ibn H . abı¯b, 42

273

Ibn H . ajr al-Haytamı¯, 68, 158 Ibn H . anbal, 34, 36, 37, 39 Ibn Hanna¯, Baha¯ al-Dı¯n, 79 Ibn H . azm, 88 Ibn H . ira¯sh Ribı¯, 34 Ibn Hisha¯m, 39, 42 Ibn Khaldu¯n, 17, 75 Ibn Kina¯na, 41 Ibn Maju¯z, 159 Ibn Nujaym, 102 Ibn Qayyim al-Jawziyya, 5, 32, 38, 43, 46, 48, 55, 157 Ibn Quda¯ma, 35, 36, 37, 40, 41, 43 Ibn Rawa¯h.a, Abd Alla¯h, 44, 65 Ibn Rushd the Grandson, 34, 35, 42, 70, 88 Ibn Sahl, 71, 96 Ibn Sah.nu¯n, 60 Ibn Sirı¯n, 180 Ibn Taymiyya, 5, 28, 38, 52, 62 Ibn Zarb, Abu¯ Bakr Muh.ammad, 80 Ibn Ziya¯d, 95 Ibra¯hı¯m, Ah.mad, 108, 117 ı¯d al-fit.r, 35 Ida¯rat al-Khubara¯ (Expert Administration), 111 Ida¯rat al-Taftı¯sh al-Fannı¯ (Professional Supervision Administration, Egypt), 111, 227n44 idda (waiting period of divorcee or widow), 88, 128 identity of a child (tayı¯n), 91 idha¯r (notification to defendant), 30, 42, 204n17 ih.ra¯m (sanctity), 45 ih.tiya¯t. (caution, precaution), 34, 35 ijtiha¯d (individual discretion), 44 ikhba¯r (informing), 8, 30 ilza¯m (binding effect), 40, 52 ima¯ra¯t (signs), 157 impotence of a husband: as cause for dissolution of a marriage, 124–25; proof of a wife’s virginity and, 86 Inalcik, Halil, 6

274

Index

inba¯t wa-tanhı¯d (emergence of breasts), 87 incest, 84 indicator (dalı¯l ), 28, 107 individual discretion (ijtiha¯d), 44 infanticide, 84 inference (istidla¯l), 9 informing (ikhba¯r), 8, 30 inheritance cases: architects and builders involvement in, 79; first cry of the newborn verification and, 93; mortal illness cases and, 138, 140–42, 236n63; need for an expert, 65; verification of a widow’s claimed pregnancy, 129–30, 234n39 injury (d.arar), 124, 126 inna (sexual impotence), 124–25 innovation (bida), 18 inspection (kashf ), 78 inspection (mua¯yana): documentation of medical inspections of slaves, 69–70, 215n81; expert testimony seen as an inspection, 108–9, 113–15, 119; Maliki school on virginity inspections, 86; relationship between inspection and expertise, 108 Inspection Department, Egypt (Qism Taftı¯sh), 111, 227n41 inspection document (rasm), 87 internships, 76 interpreter (mutarjim), 56 intractable diarrhea (isha¯l mutawa¯tir), 136 investigation (tah.qı¯q), 140 invisible signs (z.uhu¯r khafiy), 157 ¯ lı¯ al-Abs.a¯r, 28 I¯qa¯z. Himam U iqra¯r bil-kita¯ba (written acknowledgment), 102 ird. (honor connected to female moral conduct), 85 irregular ( fa¯sid), 178 irrigation expert ( ja¯rı¯ ), 4 I¯sa¯, Wa¯il, 171

al-isha¯l (diarrhea), 136, 142 Islamic judge. See qadi Islamic Law and Society, 5 Islamic legal system: acceptance of circumstantial evidence, 5; comparisons to Jewish system (see paternity in Egyptian vs. Israeli law); expert witnesses use (see expert witnesses); goal of fact linked to law, 200n31; harmonizing of school doctrine with local customs, 4; modern precedent of the preservation of the marital family, 190; modern transformation in political culture, 193; notion of fairness in, 4; political cultures’ role in how experts are used and viewed, 192–93; preference for oral testimony, 5; premodern precedent of the preservation of the patriarchal order, 190; procedural options for using experts, 58–59; qadis’ work in the courts, 3–4; reluctance to rely on female testimony, 48–49; reluctance to use scientific means in family law, 190–91; role of experts in Islamic legal systems, 4–5; science of law (see fiqh); scope of Western legal histories covering, 5; term use, 199n1; use of comparative perspective in analysis, 10 Islamic science of law. See fiqh Israel. See Jewish legal system istibda¯l (replacement of waqf properties), 80 istidla¯l (inference), 9, 29 istihla¯l (first cry of the newborn), 49, 93 istikhla¯f (delegation of authority), 46 istiksha¯f al-h.a¯l (clarification of a situation), 103, 224n6 istina¯ba (to appoint someone as a representative/delegate), 44 istina¯fiyya [mah.a¯kim] (courts of appeal), 111 istisqa¯ (dropsy), 137

Index

Italy: early physicians and, 66; expert defined as an advisory figure, 108; expertise viewed as a procedure to aid a judge, 107; expert system basis in code of procedure, 107 jalwa¯z (court aid), 57 al-Ja¯mi’ al-S.aghı¯r, 137 janı¯n (embryo), 90 jarab (scabies), 136 jarh. (to discredit the reliability of an informer/a witness), 37 al-jarh. wal-tadı¯l (inspecting the reliability of witnesses), 37 ja¯rı¯ (irrigation expert), 4 al-Jawhara, 102 jaza¯ al-s.ayd (punishment for hunting in holy area), 45 al-Jazı¯rı¯, 124 Jennings, Roland, 6 Jerusalem, 96 Jewish Emancipation period, 184, 246n129 Jewish law (halacha), 10; allowance for female testimony, 49; attitude of scholars towards medicine and science, 17, 201n48; clash between sanctified and scientific knowledge, 19; compared to Egyptian law regarding paternity (see paternity in Egyptian vs. Israeli law); court practice regarding use of genetic tests, 167; early physicians and, 66; experts’ role in, 58; malpractice issues regarding physicians, 67; one translator allowance, 40; physiognomy use in paternity cases, 159; position on use of genetic tests to determine paternity, 165–66; reluctance to rely on female testimony, 48–49; use of expert witnesses, 8; use of knowledge of nature in a judicial context, 17; veterinarian experts sought in cases, 74

275

Johansen, Baber, 5, 38, 55 al-Jubba¯ı¯, 29 judge (h.a¯kim), 44, 45, 46, 54 judge, Jewish (dayyan), 58 judgment (h.ukm), 9, 44 judha¯m (elephantiasis), 68 Juma, Alı¯, 178 juries role in a legal system, 10, 104 jurisconsult (muftı¯ ), 96 juziyya [mah.a¯kim], (courts of summary justice), 111 Kadijustiz, 3 kah.h.a¯l (eye expert), 74 kashf (inspection), 78 kashsha¯f al-awqa¯f (supervisor of buildings’ inspections), 78, 80 kayya¯l (measurer), 45 khabar (report), 30 khabar al-wa¯h.id (single transmission), 40 khabar dı¯nı¯ (report on worship-related issues), 33 khabı¯r (expert), 4, 6 khabı¯r istisha¯rı¯ (“advisory expert”), 116 khafiyy (hidden), 46 Khalı¯fa, pl. khulafa¯ (deputy), 46 al-Kharashı¯, 45 al-kha¯rij (a person who claims he is the owner of a property possessed by another), 62 kha¯ris. (assessor of agricultural crops), 28 al-khars. (assessment), 32 khat.a (mistake, unintentional), 72 khat.a ja¯sim (grave mistake), 113 al-Khaybar Jews, 44, 65 al-Khazraj, 44 khibra (expertise), 108 khila¯f al-z.a¯hir (contrary to the legal presumption; contrary to the normal situation), 124, 139 al-Khiraqı¯, 43

276

Index

khiya¯r al-ayb (the option to annul a contract on the grounds of defect), 69 Khubara¯ al-Jadwal (registered experts in Egyptian system), 110–11, 227nn37, 38, 39 Khubara¯ Wiza¯rat al-Adl (Ministry of Justice, Egypt), 110, 111 knowledgeable people (ahl al-ilm, ahl al-marifa), 6, 43 knowledgeable person (h.akı¯m), 29 Lajnat al-Imtih.a¯n (Examination Committee, Egypt), 111, 227n42 Lajnat Khubara¯ al-Jadwal (Committee of Registered Experts), 16, 228n46 land experts, 64, 213n45 Landsteiner, Carl, 160 land tax, 62 language experts, 61, 212n26 last will and testament (was.iyya): legal definition of mortal illness and, 42, 135; veterinarian experts sought in cases, 75 Law on Procedure for the Islamic Religious Courts (Ottoman, 1917), 103 lawyers role in English common law, 13 Lebanon, 107 legal formularies (shuru¯t.), 11, 23 legally capable (mukallaf ), 45, 158 legal presumption (z.a¯hir), 139 legal systems paradigms: law as a cultural system, 2; law as a process, 3; law as a set of rules, 2 leprosy (baras.), 68, 123–24, 136 lia¯n (dissolution of marriage through imprecation by both spouses), 155, 172–73, 174, 179, 237n2 Lord Mansfield’s Rule, 156 lot casting (qura), 109 lunatic (majnu¯n), 68, 123–24 al-Mabsu¯t., 28 madhhab (law school), 81

al-madhhab al-jazm (the apodictic opinion of the school), 42 madhu¯n (marriage notary), 122 madrasa, 17, 214n64 maflu¯j (semiparalyzed), 136 Maghrib, 78 Maghribi, 88 mah.a¯sin al-nisa¯ (“attractions of females”), 94 al-Mahdı¯, Muh.ammad al-Abba¯sı¯, 70 mah.kama (law court), 6 Mah.kamat al-Naqd. (Court of Cassation, Egypt), 16, 111, 114, 116 Majalla (Ottoman), 16, 102–3, 138, 224nn6,7 Majma al-Fiqh al-Isla¯mı¯, 122, 171, 172–73 majhu¯l al-nasab (of unknown paternity), 173, 181 Majlis Istisha¯rı¯ (Consulting Council, Egypt), 111, 227n41 Majlis Tadı¯b (Disciplinary Council, Egypt), 111, 227nn43,45 majnu¯n (lunatic), 68, 123–24 major person (ba¯ligh), 68 Major Histocompatibility Complex (MHC), 160 Maktab Fannı¯ (Professional Office, Egypt), 111, 227n41 male experts, 5; architects and builders (see architects and builders); concerns over conflict of opinion among experts, 59–60, 211nn17,19; consulted by qadis as administrators, 79; in economic disputes (see economic disputes and the use of experts); cases of conflict between seller’s and buyer’s experts, 59, 211n14; fit with common-law model, 82; legal assistants attached to the court, 56–57; physicians called on as (see physicians); pool of experts used by qadis, 57; prevalence of use of expert

Index

testimony, 81, 219n138; procedural options for using experts, 58–59, 211nn12,13; qualifications required of expert witnesses, 57–58, 211n8; regularities in practice of using experts, 81–82; selection of experts, 58, 211n9; situations when experts were used, 57, 211n3; veterinarians, 74–75, 216nn109,110,111. See also Egyptian expert system; expert witnesses Ma¯lik b. Anas, 34, 36 Ma¯likı¯ school, 9, 34, 59; classification of experts as witnesses, 38; definition of mortal illness, 136; documentation of use of experts, 9; expert witnesses regarding defects, 41–42, 60; on inheritance rights of a divorcee, 135; legal duration of pregnancy and, 155, 167; on number of experts required, 41, 42; on number of physicians needed to rule on a defect, 54; number required for the new moon of Ramadan, 34; physical defects in slaves and, 69; position on physiognomists, 47; on pregnancy and adultery, 87, 89; on qadis calling on construction experts, 76, 80–81; on retaliation, 72; suckling baby issues, 94; on use of assessors, 43, 44; on use of dividers, 45; on use of female experts, 50–51, 95–96; on virginity inspections, 86; when expert’s opinions conflict, 59 malpractice issues regarding physicians, 67 malu¯m (“known”), 28 Mamluk period, 38, 78 mamzer (bastard), 181–82 mana¯ as.lı¯ (essential meaning), 138 manfaa lil-na¯s (public benefit), 36–37 al-Mans.u¯rı¯, al-Bı¯ma¯rista¯n, 70 manufacturing of object (nita¯j), 62 manzilat al-h.a¯kim (position of a judge), 46

277

manzilat al-mukhbir (position of an informer), 46 marad. al-mawt. See mortal illness marad. mukhawwif (disease that causes fear), 136 Marcus, Abraham, 85 ma¯rista¯n (hospital), 83 marriage: age of marriage determination, 87–88, 122–23; challenges to marriage as proof of paternity in U.S., 162–63; consummation verification, 85–86, 124; continued use of “marriage bed” principle to prove paternity, 167; exclusion of female testimony, 48; husband’s injury as grounds for dissolution of, 126–27, 233n25; impact of modern science on paternity and, 162–63; insanity as grounds for dissolution, 68, 69, 123–24; notaries role, 4; personal issues decided by physicians, 68; sexual impotence as cause for dissolution of, 124–25; unofficial (zawa¯j urfı¯ ), 175 marriage notary (madhu¯n), 122 mash. (measuring lands), 66 mashhu¯r (dominant opinion of a school), 44 mas.lah.a (welfare), 155 Mas.lah.at al-T.ibb al-Sharı¯ (Forensic Medicine Authority, Egypt), 111 master (amı¯n, pl. umana¯), 57 al-Mat.¯ırı¯, Kha¯lid, 171 al-Ma¯wardı¯, 36, 40, 45, 46 al-Maws.ilı¯, 51 al-Mazarı¯, 68, 82 measurer (kayya¯l ), 45 measuring lands (mash.), 66 medical experts use in personal status lawsuits: birth claims of divorced women, 130–33, 234nn40, 44, 46; centralized judicial supervision of related fact-finding, 125–26; concerning custody of minor children,

278

Index

medical experts use in personal status lawsuits (continued) 127–28, 233nn27,29; cultural prohibition against examination of women by a male physician, 122, 129, 134; defects or disorders of the husband, 123–27; determination of age for marriage, 122–23; impact of development of new medical techniques, 134; paternity cases (see paternity); pregnancy determination, 128–30 medical practitioners, 6 medicine. See modern medicine and the Egyptian courts Medina, 71 menopause, age of (sinn al-yas), 133 menstrual cycle, 7 mental illness: number of physicians needed to determine, 42–43, 207n69; physicians opinion needed in case of marriage, 68, 123–24; use of expert witnesses in Egyptian courts, 118 merchants, 6 merchants and pricing, 64 MHC (Major Histocompatibility Complex), 160 Midrashic dictums, 184, 246n130 midwife (qa¯bila, pl. qawa¯bil), 6, 50, 69. See also female experts midwife, modern (h.a¯kima, pl. h.a¯kima¯t), 134 mima¯rba¯sha¯ (state official responsible for the building guilds), 79 minimum sum of stolen good (nis.a¯b), 59 Ministry of Justice, Egypt (Wiza¯rat alAdl), 110, 111 minor child (s.aghı¯r), 68, 127 Mishna period, 182, 245n123 al-Miya¯r, 83, 85, 89 modern expert witnessing: adoption of civil-law model for expert witnesses in Egypt, 16; adversarial system’s changing role, 13; attitude of Jewish

scholars towards medicine and science, 17, 201n48; change from traditional to modern system in Europe, 15; clash between sanctified and scientific knowledge for Jews, 19; in common vs. civil law, 15; credibility questions in common-law system, 13–14; English commonlaw system and, 12–13; evolution of current Anglo-American legal systems, 14; Jewish use of knowledge of nature in a judicial context, 17; in Muslim Middle East (see modern medicine and the Egyptian courts); ordinary vs. expert testimony, 13; perception of religion as separate from other activity, 202n49; relationship between science and law, 12; scientist or philosopher as an expert, 13, 201nn36,39; Western natural science vs. medieval science, 12. See also expert witnesses; male experts; premodern expert witnesses modern medicine and the Egyptian courts: attitude of leading premodern Muslim intellectuals to science, 16–17; clash between sanctified and scientific knowledge, 19; experts use in personal status lawsuits (see medical experts use in personal status lawsuits); impact of adoption rather than creation of inventions on, 17–18, 202nn50,51,53; mortal illness and expert witnesses (see mortal illness); relaxing of inhibitions against examination of females by male physicians, 134; reliance on in murder, assault, and rape cases, 21; sharia dominance over family law, 19–21; society’s acceptance and adoption of Western technologies, 18; ulama’s resistance to new technologies, 18–19 monetary matters: allowance for female

Index

testimony in, 48, 205n26; legal rules regarding death-bed financial decisions, 135, 234nn50,51; money changers used as experts, 60; physicians called on to determine severity of wounds, 72; probative status of the expert for, 41; translators for lawsuits, 41 money changer (na¯qid), 60 Moroccan courts: cases when use of an expert is compulsory, 229n53; continued use of notaries, 6; criticisms that judges rely too much on experts, 118, 231n84; expert defined as an advisory figure, 108, 229n52; expertise viewed as a procedure to aid a judge, 107; expert system basis in code of procedure, 107; expert viewed as an arbitrator, 226n23; expert’s process once assigned to a case, 230n69; modern requirement for formal diplomas for experts, 112, 228n47; oath taking requirement, 112, 228n49; payment for expert’s services, 230n68; pool of experts used by, 57; registered experts function in the courts, 110, 227n38; use of experts for fact finding, 4, 199n11, 200n31 mortal illness (marad. al-mawt): burden of proof on the plaintiff, 139, 236n68; civil judges preference for medical experts, 151–52, 237n86; criterion of being bed-ridden, 137–38, 139, 151–52, 235n58; criterion that death is imminent and causes fear, 136, 138, 150–52, 235n54, 237n86; determination of for inheritance purposes, case example, 143–44; determination of when expert opinions contradict, case example, 144–47; determination of with confusing expert testimonies, case example, 147–50; differences

279

in attitudes between the sharia and civil courts, 152; disputes over the signs of, 138; impact of use of modern medicine by civil courts, 152–53; inheritance laws and, 138, 236n63; inheritance rights of a divorcee and, 135; legal construct of mortal illness, 21–22; legal rules regarding death-bed financial decisions, 135, 234nn50,51; medical conditions considered mortal, 136–37; requirement of post-mortem conformation about death-bed transactions, 135–36, 235n53; in sharia courts, 140–41, 151, 152; treatment in the civil courts, 139–40, 141–42, 236n76 muallim (in Morocco, expert), 5 mua¯yana (inspection), 108, 113 al-Mudlijı¯, Mujazziz, 47 muftı¯ ( jurisconsult), 96 mughassil (corpse washer), 72 muh.dath (recent), 9 muh.d.ir (court officer), 23 muh.tasib (inspector of market), 23, 57, 97 mujtahid (a scholar who practices ijtiha¯d), 49 mukallaf (legally capable), 45, 158 mukhbir (reporter, expert), 30, 48 muqad (disabled), 136 al-Muqaddima, 75 muqa¯sa¯ shariyya (judicial process of comparing mutual monetary obligations in order to make deductions), 80 muqawwim. See assessor al-Muqni fı¯ Ilm al-Shuru¯t., 93 murder and expert testimony use, 82 Musallam, B. F., 89–90 mustasha¯r fannı¯ (“professional adviser”), 108 mutabar (considerable), 69 mutarjim (translator, interpreter), 56

280

Index

muzakkı¯ (qadi’s messenger for screening of the witnesses), 37, 56 al-Muzanı¯, 34 Nadvı¯, Muh.ammad Iqba¯l, 173 na¯ib (pl. nuwwa¯b) al-qa¯d.¯ı (deputy of the qadi), 57, 108 al-Najja¯r, Abd Alla¯h, 180 na¯qid (money changer), 60 naql (transmission), 40–41 na¯shiza (rebellious woman), 127 Na¯s.ir, Amı¯na, 174, 186 nassa¯j (weaver), 6, 61 national courts (mah.a¯kim wat.aniyya), 109 natural father (wa¯lid t.abı¯ ı¯ ), 155 al-Nawawı¯, Muh.yi al-Dı¯n, 42, 45, 60, 68, 71–72, 90 naz.z.a¯r (tribal medical specialist/adjudicator), 74 necessity (d.aru¯ra), 49, 51, 54 necessary evidence (h.ujja d.aru¯riyya), 92 new moon of Ramad.a¯n, 33–36, 93, 205n33 new moon of Shawwa¯l, 35–36 Niha¯yat al-Arab fı¯ Funu¯n al-Adab, 80 nis.a¯b (minimum sum of stolen property), 43, 59 nita¯j (manufacturing of an object), 62 al-Niya¯ba (public prosecutor, Egypt), 154 nonvirgin (thayyib), 86 normal situation (al-z.a¯hir), 124 normative witnesses, 4 nosebleed (al-rua¯f al-da¯im), 136 notables in Ottoman courts, 6 notaries (shuhu¯d udu¯l), 4, 23; functions as the qadis’ assistants, 6; role in the qadis court, 56 notification of a defendant (idha¯r), 30, 204n17 number of experts required: basis of requirement for two witnesses, 31, 32, 204nn23,24; classification of experts

in Islamic law, 38, 206n45; female experts, 38–39; integration of circumstantial evidence, 38; necessity’s influence on, 54, 210n119; preference for two, 55; of translators, 39–40, 206nn49,50,54 al-Nuwayrı¯, Shiha¯b al-Dı¯n, 64, 71, 80 official experts in Egyptian system, 110–11 official medical agency, Egypt (taftı¯sh al-s.ih.h.a), 123 the option of defect (khiya¯r al-ayb), 69 orphans, 56, 64 Ottoman court records (sijilla¯t, sing. sijill ), 11 Ottoman courts: contacts with European medicine, 66; definition of mortal illness, 138; evidence of physicians examining slaves, 70; evidence of qadi consultations with architects, 78; evidence of use of medical experts, 73; expert opinions of physicians used in criminal cases, 72; experts used in economic disputes, 65; female experts required to determine physical defects in female slaves, 95; legal formularies use, 23; malpractice issues regarding physicians, 67; mentions of experts in legislation, 103; physiognomy use, 159; political cultures’ role in how experts are used and viewed, 192–93, 246n4, 247n6; separation of treatment for males and females in hospitals, 83; situations when experts were used, 57; Tanz.¯ıma¯t period and reforms, 7, 101; use of witnesses, 6; virginity issues, 86 ownership disputes, 62–63 partition (qismat ifra¯z), 65 paternity (nasab): authority of courts to

Index

order blood tests, 163–66; biological paternity as basis for legal and financial responsibility of a child, 162; challenges to marriage as proof of paternity, 162–63; confidence in the reliability of DNA testing, 170–71; Egyptian and Israeli law compared (see paternity in Egyptian vs. Israeli law); Egyptian legislation regarding (see paternity in Egyptian legislation); establishment of in Egypt, 22; history of marital presumption of paternity in British and U.S. law, 156–57, 162–63; impact of modern science on establishment of, 159–61, 239nn27,28,29,33; importance of marital presumption of in U.S., 186–87; legal duration of pregnancy and, 155–56, 237n3; marital vs. biological presumptions of paternity, case example, 154–55; Muslim scholars’ new confidence in DNA testing use, 170–71; opinions on type of testimony required, 131; physiognomy and, 46, 157–59, 238nn19,20; probative value of genetic test results, 166–67, 240n50; rationale for system used, 155; verification of a widow’s claimed pregnancy, 129, 234n39 paternity in Egyptian legal system: analogy between physiogonomy and DNA testing, 180–81, 245n114; arguments that DNA testing can only be supporting evidence, 173; chief mufti’s fatwa¯ expanding sharia’s use of DNA testing, 178–79; complaints leading to reform of pregnancy-timing standards, 168, 240n61; continued use of “marriage bed” principle, 167, 172; cultural bias against obtaining DNA test results, 179; DNA testing considered decisive evidence, 171–72; first use of DNA

281

testing to establish paternity (see Hinna¯wa¯ v. Fisha¯wı¯ ); legal arguments for and against testing based on sharı¯ options, 179–80; opinions regarding implications of using DNA tests in paternity cases, 180, 244nn109,110,111; proscribed waiting period, pregnancy, and paternity, 168, 169, 241n64; prospects for change, 188; public pressure to allow DNA tests as an evidentiary device in paternity cases, 178, 243nn100,102,103; rarity of use of medical exams to determine paternity, 169, 241n68; re-consideration of maximum period of pregnancy, 167–68, 240n63; resistance to use of DNA testing to establish paternity, 172, 173; results of sharia courts’ priority of the child’s interest, 168–69, 170; situations favoring DNA testing, 173–74, 242n83; situations limiting reliance on DNA testing, 172–73; social and cultural obstacles to using medical tests as evidence in paternity cases, 169–70; social purpose of defending the marital family, 169, 186, 187–88 paternity in Egyptian vs. Israeli law: agreement on the probative value of testing, 183; basis of resistance to genetics by both, 182–83; changes in Israeli judges’ reluctance to rely on scientific evidence, 184–85, 246nn133,137; differences in treatment of paternity, 181–82; halacha principles challenged by DNA testing, 183; Jewish desire to avoid bastardization of a child, 165–66, 183; Jewish prohibition on DNA testing use in criminal cases, 183; judicial attitudes on applying religious laws to genetics, 183–84, 246n132; modern reliance of both on medical

282

Index

paternity in Egyptian vs. Israeli law (continued) knowledge, 182; paternity as a biological, civil matter in halacha, 181, 182; paternity as family law in fiqh, 181–82; premodern reliance of both on common sense and intuition, 182; shared presumption that the child is affiliated to the legal husband of his mother, 181; socio-moral results of reliance on genetic findings, 186; summary, 185–86 pathology, 21 penal cases (uqu¯ba¯t): abortion issues, 90, 222nn38,39,40; exclusion of female testimony, 48; expert opinion of physicians in, 71–72; use of knowledgeable females to inspect women with injuries, 96 “People of the Book” (ahl al-kita¯b), 28 people of insight (ahl al-naz.ar), 6 personal rights (h.uqu¯q al-iba¯d), 93 personal status issues. See medical experts use in personal status lawsuits physical abuse cases, 84 physical defect (ayb), 86. See also defects assessment by physicians physicians, 33; assessment of defects (see defects assessment by physicians); called as experts by the Prophet, 27; cases of physicians evaluating the severity of wounds, 73–74; division of roles between physicians and slave dealers, 71; documentation of medical inspections of slaves, 69–70, 215n81; duty to report and advise, 71; evidence of distrust of physician opinions, 82, 219n141; expert opinions used in criminal cases, 72; experts in cases of leprosy, 68, 215n75; experts on issues of personal status, 68; experts on some marital issues, 68, 69; involvement in evaluating

the worth of physical injuries, 72–73; legal literature listing injuries with appropriate retaliation or compensation, 73, 216nn98,100,102,105; malpractice issues, 67; medical experts use in personal status lawsuits (see modern medicine and the Egyptian courts); options regarding preexisting defects in a slave, 69; in penal law, 71–72; regarding intentional physical offenses causing injuries, 72; relied on to identify the age of a defect, 70, 215nn85,86; role in exacting retaliation, 72; status as experts on worship-related and prohibited food issues, 67–68, 214n68, 215n71; training of physicians, 66, 214n64; use as expert witnesses, 118, 231n81 physics role in legal system, 17 physiognomist (qa¯if ), 28, 33, 109; arguments over validity of use in paternity cases, 157–59; in cases involving slaves, 158, 238nn19,20; categorization as a witness, judge, or reporter, 46–47, 48; function as a judge or as a reporter, 46–47; inspected features, 46; non-paternity uses of, 159; number required, 46–48; in paternity cases, 46; qualifications required of, 58; situations requiring paternity determination, 158 pilgrimage (h.ajj), 45 plague (t.a¯ u¯n), 136 pleurisy (dha¯t al-janb), 136 Plonit v. Almoni, 159, 167 Ploni v. Ploni, 167 polishing experts (ulama¯ als.aya¯qila), 63 position of informer (manzilat almukhbir), 46 positivism, 18 Powers, David S., 23 precaution (ih.tiya¯t.), 34

Index

pregnancy: clash between sanctified and scientific knowledge, 19; complaints leading to reform of pregnancytiming standards, 168, 240n61; considered a defect in slaves, 95; determination, 88–89, 222n34; as evidence of adultery, 89; legal duration of, 155–56, 237n3; proscribed waiting period, pregnancy, and paternity, 168, 169, 241n64; verification in divorce and inheritance cases, 128–30 premodern expert witnessing: adversarial counsel, 10; analysis approach, 7–8; attitude of Jewish scholars towards medicine and science, 17, 201n46; attitude of leading Muslim intellectuals to science, 16–17; civillaw systems, 10–11; common law’s similarity to Islamic and Jewish law, 10; discussions of judicial practices, 11–12; discussions of probative value of expert testimony, 8–9; female experts judicial role as expert witnesses, 11–12; histories of expert witnesses, 9; juries role in a legal system, 10; Ottoman courts, 7; use in ancient legal systems, 8; use of comparative perspective in analysis, 10. See also modern expert witnessing presumptive evidence (dalı¯l z.annı¯ ), 29 primary witnesses (shuhu¯d al-us.u¯l), 36 printing press, 18 private law options for using expert (procedural), 59 probability (z.ann), 132 “probative indicator” (dalı¯l al-ithba¯t), 107 “probative mean” (was.¯ılat ithba¯t), 106–7 probative status of the expert: ability to testify on what was hidden from a layman, 28, 203n3; absence of a theory of expert witnessing in fiqh,

283

27; assessors/property evaluators, 43–44, 208n74,75; basis for similarity to transmission or testimony, 53–54; connection between expert testimony and a report on worship-related issues, 33; discussions on rules of witnessing and reporting in fiqh, 27; dividers of estates (see dividers of estates); experts as providing normative reporting, 38–39; female experts (see female experts); free person requirement for witnesses, 32; jurists preference for two experts, 55; linking of expert testimony to transmission of hadith and deliverance of reports on worship-related issues, 53; masculinity requirement in testimony, 31–32, 205n26; for monetary lawsuits, 41; number required (see number of experts required); physicians and assessment of defects (see defects assessment by physicians); physiognomy experts (see physiognomist); possible rationale for relaxation of probative requirements, 53, 54, 210n119; precedent for expert testimony in the Qura¯n, 29; prevalent juristic position that the expert is a witness, 54, 210n118; qualifications of a witness or a transmitter, 31–32; Qura¯nic dictum on experts, 28, 203n5; reasoning behind calling experts, 27–28, 203n2; report and types of reporters (see report and types of reporters); shaha¯da compared to riwa¯ya, 31; slaves ineligibility to be a witness, 32; status of females as witnesses, 32, 38 (see also female experts); support for legitimacy of expert testimony, 28–29, 203n11; textual and analogical references to use and required numbers of, 52–53; traditional accounts of the

284 Index

probative status of the expert (continued) use of witnesses, 29–30; translators, 39–41; transmission vs. testimony, 30–31, 32–33, 204nn19,25; unique qualities requirement for witnesses, 32–33; women’s ineligibility to be a witness, 32; worship-related issues, 33, 205n28 “professional adviser” (mustasha¯r fannı¯ ), 108 “professional evidence” (dalı¯l fannı¯ ), 107 Professional Office, Egypt (Maktab Fannı¯), 111, 227n41 Professional Supervision Administration, Egypt (Ida¯rat al-Taftı¯sh alFannı¯), 111, 227n44 “professional testimony” (shaha¯da faniyya), 107 professional witnesses. See expert witnesses; notaries prohibited foods or medicines, 67 proper rent (ajr al-mithl), 102 property guardian, appointed (was.¯ı mukhta¯r), 64, 143 property value evaluation. See assessors the Prophet: approval of physiognomy, 157; precedent for use of construction expert, 76; rulings on retaliation, 72; use of experts for estimating quantities of dates or grapes, 65; use of expert witnesses, 27, 28 proxy, 63, 80 puberty and competence for sexual intercourse determination, 87–88 public law options for using experts, 58–59 public prosecutor, Egypt (al-Niya¯ba), 154 punishment for hunting in a holy city ( jaza¯ al-s.ayd), 45 qa¯bila (midwife), 50 qadhf (false accusation of adultery), 87 qadi (Islamic judge): influences on

decision making, 3; types of witnesses used by the courts, 56, 59, 76–79; work in the courts, 3–4; use of experts in the legal system (see male experts) qa¯d.¯ı al-qud.a¯t (chief judge), 78 qadı¯m (ancient), 9 qa¯if. See physiognomist qa¯nu¯n al-ithba¯t (code of evidence), 107 qanu¯n al-mura¯faa¯t (code of procedure), 107 al-Qarad.a¯wı¯, Yu¯suf, 173, 186 al-Qara¯fı¯, 30–31, 33, 40, 44, 47, 49 qarı¯na. See circumstantial evidence qasa¯ma procedure, 108 qa¯sim (divider). See dividers of estates qassa¯m (divider), 214n56 qas.s.a¯s. (tribal medical specialistadjudicator, in Sinai), 74 qawl (opinion, report), 41 qawlinj (colic), 136 qayyim al-mutlafa¯t (assessor of damages), 50 Qazwı¯n, 42 qibla (direction of prayer), 33 qis.a¯s. (retaliation of physical injury), 41 qismat ifra¯z (partition), 65 Qism Taftı¯sh (Inspection Department, Egypt), 111, 227n41 qiya¯fa. See physiognomy qiyam al-mutlafa¯t (evaluation of damage to merchandise), 63 qiya¯s (analogy), 53 Quakers, 84 quasi marriage (wat. bi-shubha), 158, 178 qura (lot casting), 109 Qura¯n: allowance for female testimony, 48–49; dictum on experts, 28, 203n5; precedent for expert testimony in, 29; on punishment for hunting, 45; regarding intentional physical offenses causing injuries, 72 Qura¯nic punishments (h.udu¯d), 41, 155

Index

Rabkin, Yakov M., 202nn49,53 al-radd bil-ayb (seller of a slave), 69 radio, 18 al-Ra¯fiı¯, Abd al-Karı¯m b. Abı¯ Saı¯d, 42 rajı¯ (revocable), 128 rajul yut.abbib. See physicians ramad (eye disease), 136 Ramad.a¯n, new moon of, 33–36, 93, 205n33 al-Ramlı¯, Khayr al-Dı¯n, 73, 74, 88, 137 rape, 84 rasm (inspection document), 87 ratqa¯ (a female whose vagina is blocked from birth), 87 al-Ra¯zı¯, Fakhr al-Dı¯n, 29 “real” father (abb h.aqı¯qı¯ ), 180 rebellious woman (na¯shiza), 127 recent (muh.dath), 9 registered experts in Egyptian system (Khubara¯ al-Jadwal), 110–11, 227nn37,38,39 reliable experts (al-thiqa¯t), 70 religious rules (shara¯i al-dı¯n), 40 religious scholars. See ulama¯ Renaissance, 66 renters of beasts (akriya¯), 64 replacement of waqf properties (istibda¯l), 80 report (khabar) and types of reporters: cases of similarity between a report and a transmission, 35, 205n36; conflicts over what is a report, 34–35; number required for reports related to worship, 34, 35, 36; regarding the new moon of Ramad.a¯n, 33–36, 205n33; regarding worship-related issues, 33, 34; reporting vs. transmitting, 32; required number of muzakkı¯s, 37; requirements for a report on new moon of Shawwa¯l, 35– 36; secondhand testimony situations, 36–37, 205n40; tazkiya testimony

285

regarded as khabar, 37; testimony vs. report, 30; types of reports, 33; verification of witnesses’ uprightness through tazkiya, 37 report (qawl), 41 reports on religious matters (riwa¯ya¯t al-akhba¯r): expert witnesses and, 37, 39; Muslim attitude towards, 17. See also worship-related issues reporter (mukhbir). See report and types of reporters representative (wakı¯l), 45 Responsa literature, 64, 70, 73, 74, 88, 91, 158 retaliation of physical injury (qis.a¯s.), 41 retaliation and expert opinions, 72, 216nn98,100,102,105 revocable (rajı¯ ), 128 Rid.a¯, Rashı¯d, 168 the Righteous Caliphs, 46 “rights of God” (h.uqu¯q Alla¯h, h.uqu¯q al-shar), 35 riwa¯ya (transmission), 8 riwa¯yat al-akhba¯r (reporting on religious matters), 37, 39 Roman Catholics, 17, 19 Roman courts, 8, 58 rope makers, 62 Rosen, Lawrence, 3, 4, 10, 19, 82, 200n12 al-rua¯f al-da¯im (nosebleed), 136 sabba¯gh (dyer), 62 Sabra, A. I., 17 Sages of Blessed Memory, Jewish (H . azal ), 17 s.aghı¯r (minor child), 68, 127 s.a¯h.ib al-yad (the one who possesses the property actually), 62 S.a¯lih., Sua¯d, 180, 186 al-Samanu¯dı¯, Ilm al-Dı¯n, 79 sanctity (ih.ra¯m), 45 al-Sarakhsı¯, 28, 31, 34, 43, 50, 51, 52, 61, 64, 70, 87, 89, 92

286

Index

Saudi Arabia, 227n34 scabies ( jarab), 136 Schacht, Joseph, 5 science in legal systems. See modern medicine and the Egyptian courts scientism, 18 scientist or philosopher as an expert, 13, 201nn36,39 screening of witnesses (tazkiya), 37, 56 scribes, 23 secondary witnesses (shuhu¯d al-furu¯), 36 secret screening (tazkiyat al-sirr), 37 Sefrou, 3 seller, 59 seller of a slave, 69 semiparalyzed (maflu¯j), 136 sexual impotence as cause for dissolution of marriage (inna), 124–25 sexual misdemeanor, 84 al-Sha¯fiı¯: on credibility of witnesses, 60; on defects in slaves, 69; definition of an embryo, 90; definition of mortal illness, 136; on inheritance rights of a divorcee, 135; legal duration of pregnancy and, 155, 167; on number of witnesses to use, 34, 36, 37, 88; on number of women required for testimony on a birth, 91; on pregnancy and adultery, 89; suckling baby issues, 94; on transmission and translation, 40; types of reports and, 33; on use of assessors, 43, 44, 65; on use of dividers, 45–46, 66; on use of female experts, 50–51, 52, 86–87, 97 shaha¯da. See eye-witnessing; testimony al-shaha¯da ala¯ al-shaha¯da (testimony on a testimony), 36 shaha¯da faniyya (“professional testimony”), 107 shaha¯da mulzima (binding), 36 shaha¯dat al-istiksha¯f (clarifying testimony), 103, 224n7

shaha¯dat al-nisa¯ (testimony of women), 50–52 sha¯hid (witness), 6 shara¯i al-dı¯n (religious rules), 40 sharaf (honor), 85 sharı¯ a: birth claims of divorced women, 131; chief mufti’s fatwa¯ expanding the use of DNA testing, 178–79; and the courts, 20–21; degree of power and control earned by women in the patriarchal legal system, 97; DNA testing, paternity and, 171, 172–73, 179–80; dominance over family law, 19–21; importance to Islam, 20; jurisdiction over pregnancy/ inheritance cases, 128; Majalla use of sharı¯ concepts, 103, 224nn6,7; mortal illness and, 140–41, 151, 152; procedures regarding impotence claims, 124–25; rarity of use of medical exams to determine paternity, 169; results of a birth claim investigation, 132–33; results of sharı¯a courts’ priority of the child’s interest in paternity suits, 168–69, 170, 241n68; social and cultural obstacles to using medical tests as evidence in paternity cases, 169–70; term use, 199n1; use of witnesses, 109–10; win over DNA testing in Hinna¯wı¯ v. Fisha¯wı¯, 177 al-Sharı¯f, Abd al-Kha¯liq H . asan, 173 Sharon v. Levi, 167 Shawwa¯l, new moon of, 35–36 al-Shayba¯nı¯, Muh.ammad, 37, 40, 91, 95 al-Sha¯yib, Kha¯lid, 179, 186 al-Shia¯r, Is.a¯m, 179 Shiites, 84 shubha (ambiguity), 52, 87, 89 shuhu¯d al-furu¯ (secondary witnesses), 36 shuhu¯d al-h.a¯l, 6, 23, 200n23 shuhu¯d al-us.u¯l (primary witnesses), 36 shuhu¯d udu¯l (notaries), 4

Index

shuru¯t. (legal formularies), 11 Sicily, 8 signs (ima¯ra¯t), 157 sijilla¯t (court records), 11 sill (tuberculosis), 136 single transmission (khabar alwa¯h.id), 40 sinn al-yas (age of menopause), 133 slaughtering of animals, 74–75, 216nn109,110,111 slave dealers, 11, 69, 71 slaves: division of roles between physicians and slave dealers, 71; documentation of medical inspections of slaves, 69–70, 215n81; eligibility to be translators, 40, 41; eligibility to give testimony, 50, 51; female experts required to determine physical defects in female slaves, 94–96; ineligibility to be a witness, 32; inspection of defects by experts, 30, 59; legal implications of abortion, 91; options regarding preexisting defects in a slave, 69; paternity establishment and, 92, 158, 238nn19,20; physical defect ruling case, 41; pregnancy considered a defect in a slave, 95; types of professionals involved in inspecting defects, 69; valuation decided by slave traders, 71; verification of virginity, 87, 221n23 Sonbol, Amira El-Azhary, 83 sources of the law (us.u¯l al-fiqh), 53–54 specific (kha¯s.s.) testimony, 31 state of necessity (h.a¯lat d.aru¯ra), 43 Stewart, Frank H., 74 strong contract (aqd qawiyy), 95 Stuart, England, 58 S.ubh., Abd al-Majı¯d, 173 substitute (badal), 36 suckling baby issues, 94 s.uda¯  (headache), 137 Sudan, 108

287

Sulayma¯n, Ah.mad Yu¯suf, 181 Suleimaniya mosque, 66 Sultan Suleiman the Magnificent, 66 Sunni schools of law, 19; acceptance of physiognomy, 157; on inheritance rights of a divorcee, 135 s.u¯ra khafiyya (hidden form), 90 surgeon’s guild, 73 al-Suyu¯t.¯ı, 42 t.abı¯b sharı¯ (forensic medical expert), 142 tadbı¯r (freeing of slaves), 71 tadı¯l (declaring an informer/a witness as upright), 37 tadı¯b (discretionary punishment), 73 tafrı¯q (separation), 123 Taftı¯sh al-S.ih.h.a (official medical agency, Egypt), 123 tah.qı¯q (investigation), 140 tah.t al-thiya¯b (“under the dress”), 49 tailors, 6, 61 taka¯dhı¯b (false, deceptive or contradictory statements or testimonies), 59 takhayyur (selection of legal opinions), 180 Tanz.¯ıma¯t period, 7, 16, 101 taqarrur al-h.ujja (determination of the evidence), 37 taqwı¯m (assessment), 45 T.ara¯bulsı¯, 49, 51 tathbı¯t iqra¯r (affirmation of an acknowledgment), 40 t.a¯ u¯n (plague), 136 tawajjuh al-khus.u¯ma (making a legitimate judicial claim against someone), 41 tayı¯n (identity), 91 Taylor, Robert F., 10 tazkiya (screening of witnesses), 37, 56 tazkiyat al-sirr (secret screening), 37 telegraph, 18 television, 18

288

Index

Terasaki (Prof.), 160–61 testimony (shaha¯da), 8, 30–31, 32–33, 204nn19,25 testimony of women (shaha¯dat al-nisa¯), 50–52 testimony on a testimony (al-shaha¯da ala¯ al-shaha¯da), 36 Thaqı¯f, 27 thayyib (nonvirgin), 86 thinness (huza¯l), 137 al-thiqa¯t (reliable experts), 70 Toledo, 59 Torah, 17 translators, 33; argument that translation is a transmission, 40–41; in monetary lawsuits, 41; number required, 39–40; personal qualifications demanded of, 39 transmission (naql; riwa¯ya), 8, 30–31, 32–33, 40–41, 204nn19,25 trigonometry, 17 tuberculosis (sill), 136 Tudor England, 58 al-T.ulayt.ulı¯, 30, 45, 59, 71, 93 Tunis, 9 al-Tunsı¯, Abu¯ Ish.a¯q, 44 al-T.uruq al-H . ukmiyya, 46 Tut.iyla, 84 Tyan, Emile, 5, 56, 57 ulama¯ (religious scholars), 8, 17; attitude towards DNA testing to determine paternity, 172, 178, 179, 180, 188, 224n103; evidence of mistrust of expert knowledge, 82; influence in society, 193; oversight of family law, 20, 190; premodern sharing of power, 192; prohibitions on crossgender and cross-religious medical treatments, 120–21; questionable knowledge of maximum pregnancy periods, 168; resistance to new technology, 18–19; shuhu¯d al-h.a¯l in

the Ottoman courts, 6; writings in the fiqh, 23 ulama¯ al-s.aya¯qila (polishing experts), 63 umana¯ (masters), 57 al-Umarı¯, S.a¯lih. b. Muh.ammad, 28 Umayyad, 30 umm walad (a female slave who bore the child of her master), 91 Umm Yah.ya¯ b. Abı¯ Iha¯b, 50–52 “under the dress” (tah.t al-thiya¯b), 49 undiscriminating (ghayr mumayyiz), 33 Uniform Act on Blood Tests to Determine Paternity, U.S., 164, 166 Uniform Parentage Act, U.S., 164, 166 Uniform Paternity Act, U.S., 163, 164 United States legal system; acceptance of science as separate from religion, 19; acceptance of science in family law, 191; biological paternity as basis for legal and financial responsibility of a child, 162; challenges to marriage as proof of paternity, 162–63; common-law system, 104–5, 224n9; court practice regarding use of genetic tests, 166, 167; criticisms against marital presumption of paternity in, 187; enforcement of testing, 164–65; expert system basis in code of evidence, 107; expert witnessing history, 12; expert witness requirement, 14; history of marital presumption of paternity, 156–57, 162–63; importance of marital presumption of paternity, 186–87; law viewed as a cultural system, 2; paternity determination and, 156–57; payment for expert’s services, 230n68; physiognomy use in paternity cases, 159; review of the expert’s findings by the court, 231n72 unknown paternity, 173, 181 uprightness (tadı¯l), 37

Index

upright person (‘adl), 31, 204n22 uqu¯ba¯t. See penal cases uremia (bulı¯na¯), 144 urf al-tujja¯r (practice of merchants), 69 us.u¯l al-fiqh (sources of the law), 53 Usa¯ma b. Zayd b. H . a¯ritha, 47 Uthma¯n, Amal Abd al-Rah.¯ım, 109, 115 Uthma¯n b. H . anı¯f, 30 Uthma¯n, Muh.ammad Rafat, 181 Uziel, Rabbi, 184, 186 Valencia, 59 Van Staevel, Jean-Pierre, 9, 75 veterinarians (al-baya¯t.ira); opinions sought on the slaughtering of animals, 74–75, 216nn109,110,111; role as experts for qadis, 59 virginity, 7; allowance for female testimony, 50; in cases of adultery, 86–87; midwives called on to verify, 85, 220nn15,16,17; proof of a husband’s impotence and, 86; puberty determination, 86; questions regarding accuracy of midwives in determining, 86, 221n19; verification for slaves, 87, 221n23; verification of consummation of marriage, 85–86 vizier, 79 al-Wadghı¯rı¯, Kama¯l, 29 Wadi Zgane (Atlas Mountains), 78 waiting period (idda), 88, 128 wakı¯l (representative), 45 Waldenberg, Rabbi, 184, 186 wa¯lid t.abı¯ ı¯ (natural father), 155 al-Wansharı¯sı¯, Ah.mad b. Yah.ya¯, 23, 83, 85, 87, 89 waqf (endowed assets), 42, 44, 63 was.¯ı mukhta¯r (appointed property guardian), 130, 143 wası¯lat ithba¯t (“probative mean”), 106–7

289

Wa¯s.il, Nas.r Farı¯d, 170 wat.aniyya [mah.a¯kim] (national courts), 109 wat. bi-shubha (quasi marriage), 158, 178 waz.¯ıfa a¯mma (public service), 105 wazza¯n (weigher), 45, 60 weak testimony (h.ujja d.aı¯fa), 95 weaver (nassa¯j), 6, 61 Weber, Max, 3 weigher (wazza¯n), 45, 60 welfare (mas.lah.a), 155 Wells Fargo case, 200n36 Westreich, Elimelech, 183 wet nurse, 51, 94 wisdom (h.okhma), 17 witness (sha¯hid), 6, 29, 37 women: as expert witnesses (see female experts); family law issues (see family law); lack of eligibility to be a witness, 32; medical issues involving (see modern medicine and the Egyptian courts) women’s honor, 85 worship-related issues: expert opinions of physicians regarding, 67–68, 214n68, 215n71; new moon of Ramad.a¯n, 33–36, 93, 205n33; probative status of the expert, 33, 205n28 written acknowledgment (iqra¯r bil-kita¯ba), 102 yası¯r (minor), 64 Yemen, 64 Yu¯suf (the Biblical and Qura¯nic), 29 Yu¯suf, Abd al-H . ası¯b, 115 z.a¯hir (apparent), 46 al-Zah.¯ılı¯, Wahba, 181 Z.a¯hirı¯s, 87 Zakariya¯, Muh.ammad, 173 z.ann (probability, probable opinion), 132

290

Index

z.ann ra¯jih. (high probability knowledge), 108 zawa¯j urfı¯ (unofficial marriage), 175 Zayd b. H . a¯ritha, 47 al-Zaylaı¯, 102

Zeevi, Dror, 23 Zilberg (judge), 167 zina¯. See adultery al-Zubayr, Urwa b., 180 z.uhu¯r khafiy (hidden appearance), 157