God in the Courtroom: The Transformation of Courtroom Oath and Perjury between Islamic and Franco-Egyptian Law.

Author:Voorhoeve, Maaike
Position:Book review
 
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God in the Courtroom: The Transformation of Courtroom Oath and Perjury between Islamic and Franco-Egyptian Law. By GUY BECHOR. Studies in Islamic Law and Society, vol. 34. Leiden: BRILL, 2012. Pp. xv + 412. $196.

In God in the Courtroom Guy Bechor investigates the concept of making God a witness in legal proceedings, examining to what extent the courtroom oath in Egyptian civil law is "Islamic." Comprised of an introduction and five chapters, the book addresses the oath from a philosophical, historical, and comparative perspective, from the perspective of Islamic legal doctrine, as "Franco-Egyptian law," and finally, through a comparison between Egyptian law and fiqh.

The courtroom oath is the oath that either the plaintiff or the defendant takes in the absence of evidence (as opposed to the testimonial oath). The oath can decide the outcome of a case because the person taking the oath is expected to fear God: the tortura spiritualis guarantees that the litigant is not lying. One of the oldest institutions in legal procedure--it existed in Jewish, Roman, and Islamic law--the courtroom oath invokes an "intimate involvement of God" as the "omniscient witness" (pp. 27, 29), introducing non-legal considerations such as religiosity into the trial (p. 203) and connecting this world with the afterlife (p. 184).

By describing the doctrine of the four Sunni schools in the domain of the courtroom oath, Bechor fills a gap in Islamic legal studies. But this part of the book is far from descriptive alone: Bechor also enters into two sensitive debates in Islamic and Islamic legal studies. First, he argues that the Islamic oath is inspired by Jewish law, thus stepping into the debate between Patricia Crone and others on how "original" Islam actually was at the time (e.g., pp. 136 on the qasama. 149 on Jewish influence; cf. P. Crone, "Jahili and Jewish Law: the Qasama," Jerusalem Studies in Arabic and Islam 4 [1984]: 153-201; Ruud Peters, "Murder in Khaybar: Some Thoughts on the Origins of the Qasama Procedure in Islamic Law," Islamic Law and Society 9 [2002]: 132-67). Second, he argues that the Islamic doctrine of the courtroom oath largely remained the same over the centuries, thus challenging the theory, especially as propounded by Wael Hallaq, that the doors of ijtihad were never closed.

Borrowing the term "Franco-Egyptian" for the Egyptian civil code (cf...

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