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 10th/16th
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
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