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Divorce in the Libyan Family: A Study Based on the sijills of the Sharia Courts of Ajdabiyya and Kufra.

This study provides a welcome addition to the growing number of works on the practice of Islamic law in the twentieth century. It is based on two sets of legal records (sijill) from sharfa courts in Cyrenaica: those of the town of Ajdabiyya in the north, and those of the Kufra Oases in the south. The records from Ajdabiyya cover a period of thirty years (1942-73) and those from Kufra, a period of forty years (1932-73). In his preface, Layish explains that "[T]he purpose of the book is to describe and analyze, from the angle of the sharfa court, divorce in a tribal society in process of sedentarization, against the background of the contest between sharfa and custom" p. xx). In Ajdabiyya, the two main tribes are the Maghariba and the Zuwaya; in Kufra, members of the Zuwaya make up the majority of the population. In both places, as sedentarization proceeds and tribal organization breaks down, dependence on custom lessens and recourse to shari a procedure increases. Layish ably describes and analyzes this process as it is reflected in the court documents he has examined.

Readers of Layish's previous works will not be surprised to learn that his masterly command of a vast amount of detailed information does not readily admit compression. The following summary, therefore, can give only a hint of the wealth of information this book contains. Layish divides his study into two parts. In part one the introduction and six of the seven chapters), he describes and discusses the cases he has compiled under different, topical headings. Part two consists of the final chapter, in which he draws all the material together for a general discussion of what these records tell us about the interaction of customary and Islamic law.

The introductory chapter provides the reader with an historical overview of the judicial system in Libya during the nineteenth and twentieth centuries. In ch. I, "Causes of Divorce" and ch. II, "Unilateral Divorce," the author points out that in cases of talaq divorce, the causes are usually not relevant in judicial discussions, since the husband can exercise his right to pronounce a divorce without giving reasons for doing so. When reasons are given for his action, they are most often accusations of unchastity against the wife. In cases in which the wife initiates divorce proceedings, her reasons are most often nonpayment of maintenance, prolonged absence of her husband, or some combination of these two.

In ch. III, "Divorce by Consent," Layish discusses the application of Khul (divorce initiated by the wife who compensates her husband for ending the marriage) and also of divorce by mutual renunciation (mubara a), which appears to be less frequent and, in any case, is not always fully differentiated from Khul. Khul, as Layish points out, is alluded to in the Qur an (2.229) which refers to a wife's right to redeem or ransom herself from her husband, and it is a significant topic in hadith and early fiqh texts. The sijills show that these cases are among the most useful for demonstrating the course charted between customary and shari law. For example, the financial settlements described are customary, but the wife herself (rather than her agnates) is often a responsible party in the negotiations. This chapter is a welcome extension of the author's "Customary khul as reflected in the sijill of the Libyan sharf courts" (BSOAS 60 [1988]; 428-39).

Ch. IV, "Judicial Divorce," describes cases in which a qadi actually pronounces the divorce rather than the husband. Layish explains a practice, particular to the Maliki school, which allows a wife to request the court to end her marriage on a number of grounds. If they are proven, some of these grounds (e.g., chronic disease of the husband, his refusal to pay maintenance) leave the qadi no discretion, and he pronounces a talaq on behalf of the husband. Another category, injury (darar) to the wife, involves the appointment of arbitrators who are empowered to dissolve the marriage. If the wife proves injury (the nature and extent of which is open to very wide interpretation), and the arbitrators are unable to agree on ways to ameliorate her situation, they dissolve the marriage, and the qadi confirms the dissolution.

Ch. V, "The Consequences of Divorce," deals with the legal and financial consequences of divorce. The records show that the courts have not maintained the strict legal distinction between revocable and irrevocable divorce, nor have the intricate rules of the divorcee's idda been upheld; reconciliation without remarriage of the couple after the idda has ended occurs, and so does remarriage of the wife before it has ended. The financial consequences of divorce (return to the wife of her dower, lodging, maintenance, suckling wages, etc.) seem to be dominated by custom, and the records often reveal arrangements made between the husband's family and the wife's agnates.

Ch. VI, "Qadis and Divorce" discusses topics covered in previous chapters from the point of view of the actual involvement of qadis in divorce proceedings, as opposed to their role as recorders or interpreters of the cases brought before them. Here Layish points out some of the ways in which qadis have either consciously or unconsciously amalgamated elements of customary practice with shari law. This leads into his concluding chapter, "Shari a and Custom in the Cyrenaican Family." Layish reviews the cases he has described and concludes that as sedentarization eroded their customary practices and the bedouin of Ajdabiyya and Kufra increasingly made use of shari a courts to regularize their personal status vis-a-vis the central administration, the qadis who heard their cases became the means whereby shari law came to play an increasingly important role in their lives. In light of this conclusion, the information in the two final chapters about the educational background and religious outlook of these qadis is extremely interesting.

Throughout, Layish fills in the historical background of the various legal issues being considered and compares cases in Libya with cases recorded elsewhere, most notably in Nigeria and Israel, but also in Algeria, Aden, and Egypt. Given the wealth of information in each chapter and the fact that many of the cases are discussed in several chapters under different subheadings, it would have been useful for the reader to find many more cross references in the footnotes to make it possible to construct an understanding of each case as a whole. However, there is a full index as well as an excellent glossary. This book is of more general interest than its title suggests, and an invaluable resource for those interested in both practical and theoretical legal issues.
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Author:Spectorsky, Susan A.
Publication:The Journal of the American Oriental Society
Article Type:Book Review
Date:Oct 1, 1994
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