The Role of Sharia Courts in Reforming the Family and Society

The judiciary plays a major role in regulating the rhythm of social life in general, and Sharia courts play an even greater role in regulating the rhythm of family life in particular, especially with regard to the marriage contract and its consequences, as well as divorce and death and their respective effects. Although jurists emphasized the dignity of the judge and warned against excessive mingling with the public, so that those close to him would not hope for a favorable ruling, nor those distant fear his injustice, nor would his fairness be compromised, they even said: A judge should safeguard himself from excessive social mixing and sitting with the public in markets and gatherings, for that invites suspicion and undermines dignity. Yet this seriousness required of both civil and Sharia judges, aimed at upholding justice through evidence and the application of legal texts, free from extraneous influences such as personal relationships with litigants or external pressures, does not absolve the judge, especially the Sharia judge, of responsibility toward reforming his society. This is particularly so after social maladies have spread that were previously unknown or limited in scope. Ibn Farḥūn (d. 799 AH) pointed to the judge's role in societal reform when he said: "If he does not strive to reform the people of his time, he has exposed himself and cast himself into destruction" [Tabsirat al-Ḥukkām, 1/32]. Family problems have become a widespread phenomenon in most Muslim societies, for reasons that have been extensively studied, theorized, and addressed with proposed solutions, details of which are beyond the scope here. Faced with these problems, the judge has come to resemble one who washes the dead: cautious in his early cases, keen to treat each case with the care it deserves, aiming either to prevent breakdown or to mend relationships between spouses or between parents and children. Yet as cases and concerns accumulate, he may end up handling them mechanically, issuing the ruling urged by one of the parties rather than addressing the underlying dysfunction and restoring harmony. In the past, a judge would take time to study a case and search for causes of reconciliation and agreement, even if slight, rather than causes of separation and disagreement, even if many, like one searching for a white spot on a black bull. During adjournments after the first hearing, he would entrust reliable individuals from the neighborhood or city—especially relatives of the disputing parties—to work toward reconciliation. This was a practical application of the divine command: If you fear a breach between them, appoint an arbiter from his family and an arbiter from her family. If they desire reconciliation, Allah will bring about harmony between them. Indeed, Allah is All-Knowing, All-Aware [Qur'an 4:35]. Today, except few, the judge listens to the husband and wife in a session lasting only minutes, then asks each: "Is there any chance of reconciliation"? If either answers in the negative, he strikes the gavel and rules for divorce, separation, or khalʿ, determining the husband's obligations strictly according to the literal provisions of the law. The Sharia judge is a scholar and a preacher before being a judge. Sharia courts derive their very name from the application of Sharia rulings, which call for knowledge, understanding, and reconciliation. It is therefore my firm conviction that contemporary Sharia courts have a greater role to play, beginning with education and guidance, and then striving toward reconciliation. Given the decline in marriage rates and the rise in divorce rates in many Muslim societies, it has become necessary to adopt a comprehensive plan recognizing that Sharia courts should not limit themselves to adjudicating cases of marital discord, custody, maintenance, inheritance disputes, endowments (awqāf), and wills alone. Rather, their responsibilities extend to educational, advisory, and ethical dimensions imposed by their religious and social standing. Among the most pressing issues requiring such dimensions is child marriage and the challenges it sometimes produces—of which early divorce may be the least severe, due to the immaturity of one or both spouses. By virtue of their jurisdiction over family affairs, and their access to detailed statistics on cases and causes of familial discord, which facilitates study and analysis in cooperation with other responsible bodies, Sharia courts are duty-bound to exercise a preventive role that goes beyond mere textual adjudication. This role includes: Educational Responsibility: This entails structured awareness programs for guardians and prospective spouses regarding the dangers of concluding marriage contracts at an early age before full intellectual, psychological, and social maturity. Every era, environment, and circumstance has its own rulings; this is what revelation refers to by custom (ʿurf) and what is recognized as proper (maʿrūf). Sharia courts, in cooperation with relevant ministries (such as social affairs), civil society organizations addressing family issues, Sharia institutes, mosque study circles, Friday preachers, influential community figures, and the media, especially social drama, should utilize court data to explain the religious, legal, and social consequences of marriage in general and child marriage in particular. Advisory Responsibility: Courts should provide counsel and guidance to parties before concluding the marriage contract, directing them to preparatory programs and training courses on marital life and the rights and duties of each spouse, with an emphasis on preparing both partners for shared responsibility. Indeed, the aim should be to cultivate a social environment that is convinced of and supportive of such preparatory initiatives, through a contemporary vision that takes account of new variables and emerging challenges. Ethical Responsibility: This responsibility permeates all aspects of Islamic work, especially for Sharia judges. The judge must assist minors and those under coercion in realizing their true will, reject practices that entrench exploitation or coercion or disregard the Sharia-based interests of either party, particularly women, and adopt clear positions that protect the dignity of childhood and preserve the sanctity of the family, while striving for reconciliation when disputes arise. Addressing the consequences of child marriage cannot be achieved merely by adjudicating cases. It requires a comprehensive vision that makes the Sharia court a beacon of guidance, awareness, and reform—protecting society from disintegration and safeguarding the higher objectives of Sharia in tranquility, affection, and mercy.