Legal Acrobats in 10th/16th Century Cairo

This piece was written in response to "Kramer vs. Kramer in a 10th/16th Century Egyptian Court: Post-Formative Jurisprudence Between Exigency & Law" by Sherman A. Jackson

            After having gone through a child custody dispute myself recently, I found it very interesting to read that even in early Islam, there was disagreement regarding bias toward the father or mother. It was also very interesting to read about how the 10^th/16^th century Maliki judge and jurist, Badr al-Din al-Qarafi, had to perform legal and psychological acrobats in an attempt to present a convincing argument in favor of the mothers in regard to premature forfeiture on the fathers’ part.

            Al-Qarafi’s opinion on this matter seems to have, on the surface, gone against the grain in the Maliki school of thought that he was part of. As Maliki law was cumulative and could not abolish any earlier rules, he had to find ways to argue in favor of his opinion by finding logic from earlier rulings or analogies that worked in his favor. This included not only legal maneuvers, but also playing on the emotions of the men he would be up against when presenting his argument, by pointing out what they might have to lose if they disagreed with his line of reasoning. He formed his arguments to lead the audience into agreeing with him by answering questions and opposition arguments before they could come and essentially “tricking” the audience into agreeing with him by way of an analogy that hit too close to home.

            I found that his methods seemed convincing enough to me and that he was quite clever to hide his opposition to the normative train of thought about the subject in a cloak of Maliki mnemonics. It would have made it difficult indeed to call him out as a rebel when his logic came from the school itself. It also seemed very apparent that he knew his audience well enough to know what psychological and social triggers to pull. I have always said one of the first rules of debate (or when constructing a convincing argument) is to know your opponent. If you know how your opponent thinks or feels, you will have a better time knowing what buttons to push and how to word your argument effectively. It seems to me, although he may not have enjoyed much in the way of fruits of his labor, that he was a pretty good legal architect/acrobat.  

Written for my Modern Muslim Thought class on 1/23/2012