Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century by Ahmed Fekry Ibrahim (review)

There are few works on child custody in Islamic law in the literature. Ibrahim's work fills an important gap in the field, as it is well researched with an impressive bibliography. The book is informative on the theoretical aspects of child custody, discussing the different approaches of the Hanafi, Shafi'i, Hanbali, and Maliki legal schools. At the same time, it examines specific cases tried in Ottoman-Egyptian Shari'a courts in premodern and modern times. Ibrahim's attempt to contextualize the concepts of child custody and guardianship enables the reader to trace the historical development of the debates around child custody in modern Egypt.

This contextualization is evident in both the periodization of the book and the organization of its chapters. Ibrahim examines approximately 600 cases drawn from eleven courts in Ottoman Egypt from the period 1517-1801. He views the Ottoman Hanafization policy after the French reconquest of Egypt as the first rupture in the application of Shari'a law on child custody cases (1801-1955) and examines hundreds of published Shari'a court records on child custody trials, especially between 1929 and 1954. Finally, the integration of Shari'a courts to the national court system and the incorporation of Islamic family law into a unified judiciary in 1955 marks a second turning point, which the author traces up to 2014. This long-term perspective highlights the complexity of child custody law in Egypt and its legacy in legal equitability in contemporary Egypt.

There are six chapters in the book. Chapter 1 discusses the different juristic discourses on child custody. Chapter 2 outlines the approaches of various Islamic schools toward child custody and guardianship rules. These rules are analyzed under categories such as age and gender (the general attitude was to give custody to the mother during infancy and then transfer it to the father or relatives from the male line), remarriage of the mother or marriage of female relatives (the same restrictions did not apply to the father), lifestyle, religion of the parents, visitation rights and joint custody, relocation with the ward (again, only restrictive against the mother), and child maintenance. How jurists incorporated these categories in their custody deliberations in early modern Ottoman courts in Egypt is examined in chapters 3 and 4. Finally, chapters 5 and 6 focus on the changing interpretations of child custody between the periods 1801–1929 and 1929–2014, respectively.

One of the main arguments of the book is that despite the patriarchal nature of the Islamic juristic discourse and a very narrow sense of child welfare that was often associated only with gross abuse, there was flexibility in the application of law in Shari'a courts, attributable to pragmatism and the freedom of judges to adhere to different schools of law during the early modern era. Ibrahim examines private agreement deeds (khul) and argues that some jurists (mostly following the Maliki school of law) accepted them, allowing women to retain custody of their children in case of remarriage or travel with the ward away from their regular residence. This went against the dominant status, which did not consider these agreements binding. The author concludes that during the nineteenth century, the Hanafization of legal codes caused Islamic law to become less flexible. Child welfare ultimately became defined by the dogmatic rules of Hanafi jurists, leaving no room for private deeds or individual judges' interpretations. Ibrahim, however, explains that these private separation deeds (which actually constituted a minority in his sample) had ceased entirely by the 1670s. Therefore, the observed rigidity was not solely related with the Hanafization/codification of Islamic law.

Ibrahim also argues that the process of Hanafization of Islamic law in the nineteenth century was highly influenced by European values and the "cult of motherhood," which resulted in a new family ideology. He posits that under this women's rights approach, it was unnecessary...