For this book, I have selected 35 of the articles I wrote on the history of Egyptian and Islamic law with a focus mainly on the legal order and the actual application of the law. These writings are the fruit of nearly half a century of research. After my graduation in Arabic and Turkish law, and after extensive travels in the Middle East and North Africa, I embarked on a career in academia â at the University of Amsterdam and, for five years, as the director of the Dutch (later DutchâFlemish) Institute in Cairo, where I worked in the fields of Islamic studies, ShariÊ¿a law and Egyptian legal history. I have written books on jihad,1 on Islamic criminal law2 and on legal documents found in the town of al-Qasr in the Dakhla Oasis in the west of Egypt.3 In addition, I have written many articles for academic journals and chapters in edited books. In this book, however, the reader will find a selection of articles on the Islamic and Egyptian legal orders and on justice, that is on judicial practice, legal culture and the development and codification of the law.
When I studied it in the 1960s, I had the impression that Islamic law, with the exception of family law, was principally a theoretical discipline of doctrines, debated by religious scholars, but not actually applied by judges or political authorities. I became intrigued by the ShariÊ¿a because the practical nuts and bolts of the law were usually missing in Western textbooks and, apparently, many fields of ShariÊ¿a law were not enforced in practice. When, in the 1980s, I became acquainted with a voluminous collection of nineteenth-century fatwas (Al-FatÄwÄ al-Mahdiyya), I found that many of them addressed not only family law, but also many other branches of the law, including criminal law, the law of contracts and the rules of procedure. These fatwas reflected the practice of the ShariÊ¿a courts. While examining them, I realized that much more could be found beyond them and this encouraged me to examine the Egyptian archives. Although bureaucracy made access far from easy, the archives were rewarding. Moreover, I found that other researchers were increasingly beginning to examine these court records, not only to analyse social history but also to unearth the actual legal practice of the courts in the past. And, as you will find, many of the articles selected in this collection, are studies founded on archival court records and legal documents more than on the juridical scholarly texts.
This book is divided into two parts. Section 1 is devoted to Egypt and Part 1 deals specifically with nineteenth-century penal law (Chapters 1â15). These studies were the result of a long-term research project for which I used the court records of the Egyptian National Archive (DÄr al-WathÄʾiq al-Qawmiyya) as sources. The chapter begins with the application of criminal law, both ShariÊ¿a and state, and with the subsequent emergence of penal codes. Five more articles analyse case studies in which offenders were tried and sentenced. The records of these cases (homicide, grievous bodily harm, unlawful sexual relations and, finally, a discussion on the legitimacy of statues) provide the facts and the motivations of these sentences, with a great deal of social background. The last three articles in this chapter are on the rise of imprisonment as a penal punishment and its practice.
The focus of Part 2, Section 1 is also on Egyptian legal history, but from other periods (Chapters 16â20): it contains four titles on earlier Ottoman periods and one on the twentieth century. One study is an analysis of a dispute over whether public Sufi practices such as the dhikr were lawful. The opponents, a Turkish group of religious hotheads, attacked the Sufis near the Zuwayla Gate in Cairo and created a riot, to which the authorities had to restore order. In three essays set in the town of al-Qasr in the Dakhla Oasis, I discuss legal and judicial practices in the Ottoman period. The sources I was able to examine consisted of some legal documents that were fortuitously found in the remains of a dilapidated house in al-Qasr and which I edited (see footnote 3). The last article in this chapter is an account of the unsuccessful project of legal Islamization in the 1970s.
Section 2 of this book (Chapters 21â35) consists of 15 essays, though not specifically related to Egypt. In 11 articles, I again deal with the notions of legal order, justice and the actual application of ShariÊ¿a to Islamic law. Legal order is included in studies on the practical doctrines on apostasy (Chapter 21) and in the debates on modern Islamic justice, specifically the discussion on the compatibility of ShariÊ¿a with human rights (Chapters 26 and 35). In four essays, I discuss the method through which ShariÊ¿a is defined and adapted by fixing madhhab doctrines or by codification (Chapters 28, 30, 31 and 33). Two more essays deal with the codification of ShariÊ¿a penal law as implemented in Northern Nigeria immediately after 2000 (Chapters 29 and 32). These studies were the result of a European Union assignment, for which, in 2002, I visited Nigeria and collected the regional laws enforced at that time, since each state of the Nigerian federation had the autonomy to issue penal legal statutes. On the basis of these statutes, as well as interviews with several Nigerian lawyers, I could assess the impact of the recent Islamization of penal law on human rights standards. In Section 2, furthermore, I offer articles on debates on religious and political authority in nineteenth-century Mahdist Sudan and on the legal relationship between the regions of Islam and the religions of the unbelievers (Chapters 22 and 24). They both deal with justice and the legal order in its relationship between the legitimacy of the political authority and the legal culture. Finally, there are four articles not directly related to the notion of the legal order, but to Islamic law in a wider sense. One essay consists of a discussion about how modern inventions in the Ottoman Empire, such as steamships and the telegraph, must be judged according to ShariÊ¿a (Chapter 25). The subsequent articles consist of an analysis of nineteenth-century Salafi debates surrounding the notions of taqlÄ«d and ijtihÄd (Chapter 23) and an investigation into the historical origins of the rules of qasÄma, the procedure, in the case of an unknown killer, to establish financial compensation for the next of kin or the punishment of the alleged perpetrators by swearing oaths (Chapter 27). The final essay is on a topic beyond the Muslim world: it is based on a report I wrote as an expert witness for a Dutch court. The record examined the religious documents collected by the Dutch Muslimsâ defendants. After analysing these documents, I could chronologically expound on how this group gradually developed into a religious ideology of terrorism that could justify killing citizens. Eventually, one of them assassinated a Dutch filmmaker and journalist and was eventually sentenced to life imprisonment (Chapter 34).
This collection contains original texts that had previously been published. However, there are a few minor changes:
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The original articles referring in footnotes to forthcoming titles have now been updated;
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due to problems caused by the conversion of PDFs to Word texts, the transcription in many articles has been simplified, by omitting the transcription diacritics like the under dot and the macron; however, the distinction between Ê¿ayn and hamza has remained; typographic errors and misspellings have been corrected.
I could not have completed these studies without the help of many colleagues. In the individual articles you will find the acknowledgements. However, with regard to this collection, I am very much indebted to Olaf Köndgen, who suggested I publish this book and convinced Brillâs staff to produce it. I am also very grateful to Khaled Fahmy, with whom I became acquainted in the Egyptian archives thirty years ago and who became a friend and colleague in studying the history of nineteenth-century Egypt. My studies on Egyptian history owe a great deal to our cooperation and discussions. Finally, I want to express my gratitude to the staff at Brill for producing this voluminous work.
Rudolph Peters, Jihad in Mediaeval and Modern Islam: The Chapter on Jihad from Averroesâ Legal Handbook âBidayat al-Mudjtahidâ and the Treatise âKoran and Fightingâ by the Late Shaykh al-Azhar, Mahmud Shaltut. Translated, annotated and introduced by Rudolph Peters. Leiden: E.J. Brill, 1977 (Nisaba Religious Texts in Translation Series), 90 pp.; Rudolph Peters, Islam and Colonialism: The Doctrine of Jihad in Modern History. The Hague: Mouton, 1979, viii, 242 pp. (Religion and Society, 20); Rudolph Peters, Jihad: A History in Documents. 3rd updated edition of Jihad in Classical and Modern Islam: A Reader. Princeton NJ, 2015. (1996, 1st edn, 2005, 2nd edn) Princeton Series on the Middle East. Princeton NJ: Markus Wiener Publ.
Rudolph Peters (with the assistance of Maarten Barends), Islamic Criminal Law in Nigeria. Abuja: Spectrum Books, 2003, viii, 88 pp.; Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the 16th to the 21st Century. Cambridge: Cambridge University Press, 2005. x, 219 pp. (Themes in Islamic Law, 2).
Rudolph Peters, WathÄʾiq madÄ«nat al-Qaá¹£r fi al-WÄḥÄt al-DÄkhila maá¹£daran li-tÄrÄ«kh Má¹£sr fi al-Ê¿aá¹£r al-Ê¿UthmÄnÄ« (The documents of the town of al-Qasr in the Dakhla Oasis as a source for the history of Egypt in the Ottoman period). Cairo: DÄr al-WathÄʾiq al-Qawmiyya (National Archive), 2011, 610 pp. (Silsilat DirÄsÄt WathÄʾiqiyya, 1).