Ahmed Fekry Ibrahim, Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century. Cambridge University Press, 2018. ix, 266 pp. ISBN 9781108456197. $99.99 Hardback.
Ahmed Fekry Ibrahim’s Child Custody in Islamic Law is an important and well-researched contribution to Islamic family law in general and to changes on the concept of child custody (hidâna) from the early modern to modern period in Egypt, in particular. In this work, Ibrahim investigates how the concept of child custody developed in Islamic legal discourse and in the practice that was implemented by Ottoman Egyptian courts. He also comparatively examines the similarities between the Islamic child custody discourse/practice and the Euro-American centered “best interest of the child” principle (6).
“He claims that in the period between 1528 and 1670, certain rules dictated by legal works of author-jurists (musannifs) were not followed in private separation deeds (hul‘ agreements).”
The work makes use of more than 600 cases about child custody from the sixteeenth to the end of the nineteenth century. He claims that in the period between 1528 and 1670, certain rules dictated by legal works of author-jurists (musannifs) were not followed in private separation deeds (hul‘ agreements). The underlying cause of this practice was the tendency to find legal solutions that fit the needs of people. Judges arrived at these kinds of arrangements through a process of forum selection and doctrinal shopping, which the author called “pragmatic eclecticism” (19). By relying on case-law and amendments in Egyptian law the author demonstrates how the child’s best interest approach – instead of the Islamic child custody approach – was gradually adopted in Egypt after the 1900s.
In Chapter 1, the author explains how Euro-American child custody law has changed from its precedent Roman law and German law to the present by descriptively examining British, French, and American law. These three legal systems witnessed an evolution from a narrow definition in which the child’s gross abuse is deemed the lower limit in child welfare thought, to a state where the best interest of the child is determined by utilizing social sciences on a case-by-case basis.
In Chapter 2, Ibrahim examines child custody law in the four classical Sunni legal schools under eight themes: 1) age and gender; 2) the mother’s marital status; 3) the custodian’s lifestyle; 4) the custodian’s religious affiliation; 5) visitation rights; 6) relocation with the ward; 7) maintenance; and 8) guardianship. He also examines whether custody is a right of the custodian (hâdin) or the ward (mahdûn).
Next Ibrahim focuses on private separation deeds, which are among the most striking findings of the study. He insightfully contends that private separation deeds – despite being in contradiction with the letter of the law school’s books – were accepted as binding documents in Ottoman Egyptian courts.
In Chapter 3, “Private Separation Deeds in Action,” the author describes the position of women in the late Mamluk and Ottoman-Egyptian periods. He claims that women had economic independence due to their participation in business life. As a result, their hand regarding divorce became strong. This changing dynamic was also reflected in private separation deeds. Through these contracts, women gained rights which they normally were not able to acquire after divorces. The most important of these rights were a) in case of re-marriage, the woman continues to have the right to the child’s custody; b) if the woman moves to another city, she can take the ward with her; and c) if the father relocates to another city the ward remains with the mother. Besides, the joint custody became also possible with private separation deeds.
Chapter 4 focuses on child custody practice in Ottoman-Egypt between 1517-1801, investigating private separation deeds in the eight themes outlined above, analyzing how they both conform and modify juristic rules. Ibrahim concludes that while the judicial mechanism was able to give various decisions on child custody despite the dominance of the Hanafi school, it lost this ability in the last quarter of the 17th century. Explaining this development, Ibrahim points to the possible influence of the Kadizade movement. With the arrival of adherents of this movement from the mainland Ottoman empire to Egypt, the Kadizadeli interpretation of religion may have influenced Egyptian laws. Alternatively, he claims that the Hanafi scholars, who had great power in the region might have been served in various capacities within the Egyptian judiciary. In any case, Hanafi dominance in law resulted in the elimination of such contracts.
Chapter 5 focuses on the period following Napoleon’s invasion of Egypt. Ibrahim states that this period’s characteristic feature was the Hanafization of the law. Stating that strict Hanafism was practiced in courts and that early Hanafi period norms were recurringly used as a legal precedent, the author proves through court records that the views of Ibn Abidin, whose position can be considered close to the “best interest” approach, were not actually put into practice. This strict Hanafization was eventually overturned: in Chapter 6, Ibrahim states that a process of de-Hanefization started with the amendment of the relevant child custody laws announced in 1929. He documents how the Euro-American “best interest” approach took hold in modern Egyptian law in the afore-mentioned eight main themes.
“Considering the scarcity of studies on Islamic family law and especially on the child custody concept, Ahmed Fekry Ibrahim’s book is a significant contribution to the field.”
Considering the scarcity of studies on Islamic family law and especially on child custody, Ahmed Fekry Ibrahim’s book is a significant contribution to the field. The author tries to demonstrate that Islamic child custody discourses and practices can be an alternative source to the Western-monopolized child custody approach in some ways (11). He also shows how a concept related to family law can be studied by examining the sources of normative legal books and archive documents. However, some of the notions used by Ibrahim and his explanations about separation agreements deserve attention. While the decline debate was abandoned many years ago by the majority of Western academia, the author calls the period between 11th-13th centuries as a taqlid period in a declinist way. However, that same feature could just as easily be described as “legal continuity” rather than decline. The author describes this situation negatively and refers to this issue as part of a dichotomy between ijtihad and taqlid (5).
Additionally, the author fails to provide sufficient details or evidence regarding his explanations for the disappearance of private separation deeds. Ibrahim does not put forward convincing evidence regarding the influence of the Kadizade movement in Egypt and especially their interference on issues related to family law. He argues that the governor, who was sent to Egypt by Köprülü Fazıl Ahmed Paşa during this period, could have been a conduit in spreading the views of the Kadizadeli’s. However, he does not specifically mention any statement of the governor about child custody.
I also argue that the author’s treatment of the involvement of Hanafi scholars is also a misinterpretation. Although he writes several times that things changed in favor of the Hanafi position upon the disappearance of the private separation deeds, this was no different from the position of the other schools of law, which also had a negative attitude regarding the validity of such documents. For instance, Badr al-Din Qarafi’s al-Ibâna fî sıhhati isqati mâ lem yejib min al-Hidana, which is mentioned by the author, reveals that private separation deeds are discussed among Maliki jurists and their legitimacy is accepted by leaning on the weak view within the school. As Qarafi said, the majority of Maliki scholars opposed these contracts, but due to interests (maslaha) and customs (‘urf), these contracts were deemed permissible to act based on a weak opinion (non-mashur). Even though the author states this situation (97-99), he still maintains that the cause for the disappearance of these contracts was due to Hanafi pressure, without considering the pressures of Maliki jurists or the jurists of other schools.
However, these issues do not depreciate the author’s great contribution to the field. Ahmed Fekry Ibrahim’s meticulous work has studied child custody law in Egypt from a long durée perspective by examining both author-jurists’ works and rich archival documents. This study is an important source for historians and researchers in Ottoman studies, as well as for modern researchers who study family law in Islamic countries and child law.
Huseyin Saglam is a PhD candidate in the Islamic Law department of Istanbul University and a researcher for the Abdullah Tivnikli ISAR Foundation. Huseyin’s doctoral research investigates the state’s relationship with society and family in the context of 16th century family law. His research interests include Islamic studies, with a particular attention to Islamic law and family affairs.
*The author first presented this review at the Fourth Annual Graduate Students Book Review Colloquium on Islam and Middle Eastern Studies in 2020 organized by Ali Vural Ak Center for Global Islamic Studies at George Mason University and the Maydan in collaboration with the Fall for the Book Festival.