COMPARATIVE LAW
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Triadic Legal Pluralism in North Sinai:
A Case Study of State, Shari‘a, and ‘Urf Courts in Conflict and Cooperation |
Islamic Law and Constitutions
(with Nathan J. Brown) |
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To the extent that legal scholars have addressed the post-authoritarian transitions underway in the Middle East, the scope of their work has been primarily confined to the formal infrastructure of state-manufactured law. Attention has focused on the activities of high courts, parliaments, and the administrative apparatus of official justice systems, while largely neglecting to acknowledge the importance of non-state institutions and systems of normative rules that operate in the shadow of modern bureaucratic governments. The concept of legal pluralism, defined as the coexistence of multiple legal or normative orders within a common geographical area, has been applied extensively in European, South American, and sub-Saharan African contexts, but is underutilized in analysis of revolutionary and transitional change in the Middle East. Nowhere is the presence of legal pluralism more apparent than in Egypt’s geographically remote Sinai Peninsula, where non-state Islamic courts that emerged in the post-revolutionary security vacuum in 2011 claim to have absorbed 75 percent of the caseload once handled by Egypt’s official justice system and aspire to achieve full autonomy from the state. This paper, based on field research conducted in the governorate of North Sinai, argues that the rapid institutionalization of non-state shari‘a courts since the 2011 uprising can be explained in part by two historical trends: (1) the Islamizing effects of state-sponsored development and labor migration policies on Bedouin society in North Sinai; and (2) growing disillusionment with state and tribal judiciaries, which are often viewed as complicit in the disenfranchisement of the Bedouin and expropriation of their lands.
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This chapter explores the scholarly interest in the relationship between constitutions and the Islamic legal tradition. It begins with an overview of constitutional texts and what they say about Islam. It then considers whether the Islamic religion in general, and the shari‘a in particular, lend themselves to constitutionalism. Thereafter, it analyzes how a new generation of scholars from other disciplines have joined those older scholarly efforts. More specifically, it examines the shift in focus of recent scholarship from heavily textual methodologies that prioritize specifically religious and intellectual questions, to more contextualized lines of inquiry that address the legal, institutional, historical, and policy implications of Islamic constitutional development. Finally, it looks at three scholarly debates (ones that have been connected to debates among Muslim political and legal thinkers): the relationship between Islam and constitutional texts; who has interpretive authority in such matters; and where debates take place.
This article maps Middle Eastern law in some of the thousand plateaus where it operates/operated: Mesopotamian law, Roman provincial law, Islamic law, and post-colonial law, with layers within each, such as Elephantine law in Egypt and Jewish and Christian law in Islam's classical age, as well as new worlds of law, such as Byzantine and Ethiopian law, in which scholarship about interaction with other layers of Middle Eastern law is either inexistent or just starting. The focus is directed as much as possible to the extant documentation in the legal record that most affects people's lives: court decisions. For the modern period, we survey, from the point of view of the legal practitioner, lawyer, or judge, the various bodies of case law and codes in the everyday practice of the Middle East lawyer. A legal family analogous to the common or civil law traditions, Middle Eastern law has emerged as a coherent and active discipline that is increasingly a subject of inquiry for historians, social scientists, and others outside of the legal profession. This article presents the field for more sustained attention from lawyers, judges, and law professors.
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