SCHOOL BOUNDARIES AND SOCIAL UTILITY IN ISLAMIC LAW: THE THEORY AND PRACTICE OF TALFĪQ AND TATABBUʿ AL-RUKHAṢ IN EGYPT

Abstract

In this study, I focus on how the Ottoman legal establishment used the pluralistic Sunni legal system to serve the needs of Egyptian society. I examine a thousand and one cases from three Egyptian courts from the seventeenth and eighteenth centuries, namely the Courts of Misr al-Qadima, al-Bab al-Ali and Bulaq. I show that although the Ottomans supported Hanafism as the official school, it functioned more like a default school, in which most cases were brought to Hanafi judges unless there was a need to bring them to other judges. When there was a need to choose another school, the most lenient school was used to facilitate people's transactions. This was achieved through either tatabbu al-rukhas or talfiq. Those practices of the court, which date back to the Mamluk period, led to a change in juristic attitudes towards the pragmatic crossing of school boundaries. In the process of the legal theoretical adjustment to social practice, debates over the validity of talfiq and tatabbu al-rukhas raged after the stabilization of the schools and the ascendancy of taqlid, eventually leading to a breach of the classical consensus over their ban. Although this process started as early as the thirteenth century, the debate continued well into the Ottoman period.

Those Ottoman debates laid the way for the codification of Sharia in the twentieth century, using those pragmatic approaches. Modern jurists and legislators engaged those same Ottoman debates in their own discussion of crossing school boundaries for utility. Through a marriage between theory and practice, I argue that the codification of Sharia in the twentieth century can therefore be viewed as a natural evolution of the Ottoman legal system. In the first two chapters, I trace the views towards crossing school boundaries to show that there was a gradual shift in juristic attitudes in favor of permitting crossing school boundaries, contrary to some contemporary scholars' argument that talfiq was outright forbidden in the pre-modern period. In the third and fourth chapters, I discuss the practice of seventeenth and eighteenth-century Egypt and compare it with the modern codification of Sharia.