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

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.

This volume compares the courtroom oaths of both Islamic and modern Egyptian legal systems, blending elements of legal history, comparative law, theology, philosophy and culture. Until now, academic research has paid little attention to the subject of the courtroom oath in the Islamic or Egyptian legal systems. As such, it might appear as if modern legislation in the Arab world on this subject forms the natural continuation of Islamic law, or that there are no significant differences between these two legal approaches. This unique study seeks to rectify this impression by examining the institution of the courtroom oath on the basis of three criteria: Islamic law, which discusses the oath in the context of the judicial proceeding, including debate between different schools and interpreters; the sources and approach of Arab law on this subject; and, lastly, the core of this book – a detailed legal comparison between the Islamic oath and the Arab oath. In itself, this is a study in legal history examining the origins, character, sources,and doctrines of the oath in Arab law and at the same time, it is a comparative study of Islamic and contemporary Arab law in this field.

About the Author

Guy Bechor, LL.B. MA, Ph.D, is the head of the Middle Eastern Studies Division, Lauder School of Government, Strategy and Diplomacy, The Interdisciplinary Center Herzliya, Israel, and a visiting fellow at the School of Law, the Islamic Legal Studies Program, Harvard University. He is the author of The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) (Brill, 2007).

Table of Contents

Introduction

• Mutual Functionality between Legal History and Comparative Law
• Egyption law and its Arab Weight
• Methodology and the art of borrowing
• Types of courtroom oaths

The courtroom oath in Islamic law, theory and practice

• Islamic law and methodology: legal history and historical law
• Intimate involvement of God
• The Islamic coutroom oath as a source of legal determination
• The types and modalities of Islamic oath
• The technique of the courtroom oath
• The positions of the schools on the subject of the courtroom oath: Malikites versus Hanafities
• The illusive mental dimension of the Islamic courtroom oath
• The scope of the courtroom oath: issues that may form
• A confrontation between forms of proof and legal determination: the oath versus Bayyinas
• The defendant and the courtroom oath
• The rerendering of the oath and the burden of proof
• The paradox of mutual plaintiffs and defendants (tahaluf)
• Cases in which the plaintiff takes the oath: a conceptual challenge for the Hanafites
• Judicial discretion and the decisive oath
• Can the defendant guide the wording of the oath in his favor?
• A religious element in the service of law
• The testimonial oath
• Special types of oath: curses and qasama

Sui Generis, the Legal History of Courtroom oath

• ‘Tortura Spiritualis’
• Courtroom oath in Egyptian legal history
• Reinterpretation and the concerning the decisive oath in Franco-Egyptian law
• The oath and ‘Judicial Truth’ as a double narrative
• The restriction of the oath due to injury to the component of legal certainty

The Egyptian Courtroom Oath and its Function

• The Franco-Egyptian courtroom oath
• Research Methodology
• The paradox of the courtroom oath
• The presentation of courtroom oaths: decisive and complementary
• The decisive oath as a Quasi-Contractual Model
• The decisive oath as equity
• Judicial discretion and the decisive oath
• The motif of equality: the oath is granted to both parties
• The ritual of the oath and the parties
• The balance of threat of the renderer
• The legal capacity required for a decisive oath
• The oath as a text
• Public order, the wild horse, and morality
• The oath and the role of God as a default
• The rerendering of the oath
• The refusal (nukul) to take the decisive oath
• The doctrine of the finality of the hearing
• The decisive oath outside the ccourtroom
• The complementary oath
• Hybrid oath: between the decisive oath and the complementary oath
• The testimonial oath

Comparative Law-To Oaths, Two Legal Regimes

• A current thesis
• A charged realm of encounter
• The decisive oath and the challenge of the legal rights
• The oath between legal time and human time
• God as a key player
• The approach of comparative justice: involvement or interference?
• Legal reasoning and intimidation
• The source of authority: the courtroom oath as a social function
• Judicial discretion and the oath
• The mental foundation of the oath as a subversive element
• Ceremony, mysticism and ritual
• The oath and the motif of equality
• The realm of the oath
• The relationship created between the praties to the courtroom oath
• Differences in teaching
• The complementary oath: from a binary model to a dynamic perspective

Perjury as ideology: the motif of falsehood in the Islamic and Franco-Egyptian oaths

• Introduction: the transformation of the perjury in Franco-Egyptian law and the concept of Falsum
• A proposed model for examining perjury in Islamic law
• Perjury as an institution and a procedure in Egyptian civil law
• Perjury versus courtroom oath: complement and contrast

Bibliographic Information

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

Author: Guy Bechor

Publisher: Brill Academic Pub

 Language: English

Length: 412 pages

ISBN: 978-9004209749

Pub. Date: December 31, 2011