什么时候离婚算离婚?在桑给巴尔的伊斯兰法庭上判定意图

Ethnology Pub Date : 2003-09-22 DOI:10.2307/3773829
Erin E. Stiles
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Intention, or nia in Kiswahili (from the Arabic niyya), is an important Islamic theological concept with great legal relevance. Also, it is a significant part of the discourse surrounding divorce among lay people in Zanzibar. In marital disputes, the kadhi understands and applies the principle of intention in light of changing cultural norms of gender roles in marriage and with respect to views of individual agency in marital practice and divorce. Examining two recent cases from a court in rural Zanzibar will demonstrate exactly how a judge determines the intention behind actions by considering the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. In assessing the relationship between outward actions and intangible inner states, the judge considers the possible scenarios in which a divorce-related legal action can occur. He determines the most likely meaning of the action through considering the evidence presented in court by litigants and witnesses in light of such scenarios. The cases examined here are examples of disputed divorce, those in which husband and wife disagree whether a valid divorce has taken place outside of the court. A detailed look at the proceedings of two similar cases shows the ways in which the kadhi determines the validity of out-of-court divorce actions through assessing the intentions of the actors involved. The cases show that establishing validity is not simply a matter of determining whether the divorce has been issued, but hinges on whether the proper intention was there when the divorce action was performed. If the meaning of the action relies on the intention, how, in such circumstances, can the intention of the actor be established? Messick (2001:178) has written, \"Given the assumed gap between forms of expression and intention, legal analyses amount to attempts to erect bridges from the accessible to the inaccessible. The interpretive work of evaluating spoken and written expression ... represents such a bridging effort.\" This article demonstrates one jurist's practice of bridging through his recognition of the multiple interpretations of actions and the motivations of the actors based on the presupposition of scenarios of male-female, husband-wife interactions at this particular point in Zanzibari social and cultural history. More broadly, the research contributes to the anthropology of law and Islam. It builds on the work of contemporary scholars who argue that Islamic law should not be considered immutable and extracultural, but rather should be acknowledged as flexible, culturally located, and open to interpretation (Haeri 1989; Messick 1993; Bowen 1999; Mir-Hosseini 1993). In much of the Muslim world, Islamic family law is part of the state legal system, and many states make provisions for primary-level Muslim courts. There is a growing, though still small, literature on how Islamic law is interpreted and applied by jurists at the local level, and how litigants apply legal knowledge and use Islamic courts (e.g., Rosen 1989; Dwyer 1990; Hirsch 1998; Mir-Hosseini 1999). Any study of courtroom practice and judicial reasoning must take into account the broader picture; for \"a reading of the record alone--or for that matter, observation of the entire courtroom proceeding--would not reveal the complexities of the case\" (Rosen 1995:197). …","PeriodicalId":81209,"journal":{"name":"Ethnology","volume":"42 1","pages":"273-288"},"PeriodicalIF":0.0000,"publicationDate":"2003-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3773829","citationCount":"16","resultStr":"{\"title\":\"When is a divorce a divorce? Determining intention in Zanzibar's Islamic courts\",\"authors\":\"Erin E. Stiles\",\"doi\":\"10.2307/3773829\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Establishing intention in legal acts is a crucial element of judicial reasoning in Zanzibar's Islamic courts. 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In marital disputes, the kadhi understands and applies the principle of intention in light of changing cultural norms of gender roles in marriage and with respect to views of individual agency in marital practice and divorce. Examining two recent cases from a court in rural Zanzibar will demonstrate exactly how a judge determines the intention behind actions by considering the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. In assessing the relationship between outward actions and intangible inner states, the judge considers the possible scenarios in which a divorce-related legal action can occur. He determines the most likely meaning of the action through considering the evidence presented in court by litigants and witnesses in light of such scenarios. The cases examined here are examples of disputed divorce, those in which husband and wife disagree whether a valid divorce has taken place outside of the court. 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引用次数: 16

摘要

在法律行为中确立意图是桑给巴尔伊斯兰法院司法推理的关键要素。本文探讨了伊斯兰法官如何通过评估当事人的意图来确定离婚相关诉讼的有效性。研究桑给巴尔农村法院最近发生的两起案件,可以看出法官如何判断行为背后的意图。法官考虑在桑给巴尔的文化背景下离婚相关诉讼的可能含义范围。(桑给巴尔,伊斯兰教,意图,离婚,法官)确定法律行为中是否存在意图是桑给巴尔伊斯兰法院司法推理的关键要素。本文考察了伊斯兰法官(kadhis)通过评估相关行为者的意图来确定离婚相关行为的有效性的方式。意向,或斯瓦希里语中的nia(来自阿拉伯语niyya),是一个重要的伊斯兰神学概念,具有重大的法律意义。此外,这也是桑给巴尔非专业人士围绕离婚话题的重要组成部分。在婚姻纠纷中,法官根据婚姻中性别角色的文化规范的变化,以及关于婚姻实践和离婚中的个人代理的观点,理解和应用意图原则。研究桑给巴尔农村法院最近发生的两个案件,将准确地展示法官如何通过考虑桑给巴尔文化背景下离婚相关诉讼的可能含义范围来确定诉讼背后的意图。在评估外在行为和无形的内在状态之间的关系时,法官会考虑与离婚有关的法律诉讼可能发生的情况。他根据这种情况,通过考虑诉讼当事人和证人在法庭上提出的证据,确定最可能的行动意义。这里审查的案例是有争议离婚的例子,在这些案件中,丈夫和妻子不同意法院外是否发生了有效的离婚。对两个类似案件的诉讼程序的详细研究表明,kadhi通过评估所涉行为者的意图来确定庭外离婚诉讼的有效性。这些案例表明,成立效力不是简单地判断离婚是否已经签发的问题,而是取决于离婚行为实施时是否有正当的意图。如果行为的意义依赖于意图,在这种情况下,如何确立行为人的意图?梅西克(2001:178)写道:“考虑到表达形式和意图之间的假定差距,法律分析相当于试图在可及之物和不可及之物之间架起一座桥梁。评估口头和书面表达的解释性工作……代表了这样一种弥合努力。”这篇文章展示了一位法学家的实践,通过他对行为的多种解释和行为者动机的认识,在桑给巴尔岛社会和文化史上这一特定时刻,基于男性-女性,丈夫-妻子互动的预设场景,架起了桥梁。更广泛地说,这项研究对法律人类学和伊斯兰教做出了贡献。它建立在当代学者的工作基础上,这些学者认为伊斯兰法不应该被认为是不变的和非文化的,而应该被认为是灵活的、文化定位的、开放的解释(Haeri 1989;梅西克1993;鲍恩1999;Mir-Hosseini 1993)。在穆斯林世界的大部分地区,伊斯兰家庭法是国家法律体系的一部分,许多国家为初级穆斯林法庭制定了规定。关于地方一级的法学家如何解释和应用伊斯兰法,以及诉讼当事人如何运用法律知识和使用伊斯兰法庭的文献越来越多,尽管仍然很少(例如,Rosen 1989;德怀尔1990;赫希1998;Mir-Hosseini 1999)。对法庭实践和司法推理的任何研究都必须考虑到更广泛的情况;因为“仅仅阅读记录——或者就此而言,观察整个法庭程序——并不能揭示案件的复杂性”(Rosen 1995:197)。…
本文章由计算机程序翻译,如有差异,请以英文原文为准。
When is a divorce a divorce? Determining intention in Zanzibar's Islamic courts
Establishing intention in legal acts is a crucial element of judicial reasoning in Zanzibar's Islamic courts. This article explores how Islamic judges determine the validity of divorce-related actions through assessing the intention of the actors involved. Examining two recent cases from a court in rural Zanzibar demonstrates how a judge determines the intention behind actions. The judge considers the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. (Zanzibar, Islam, intention, divorce, judges) Establishing the presence or absence of intention in legal acts is a crucial element of judicial reasoning in Zanzibar's Islamic courts. This article examines the way in which Islamic judges, kadhis, determine the validity of divorce-related actions through assessing the intention of the actors involved. Intention, or nia in Kiswahili (from the Arabic niyya), is an important Islamic theological concept with great legal relevance. Also, it is a significant part of the discourse surrounding divorce among lay people in Zanzibar. In marital disputes, the kadhi understands and applies the principle of intention in light of changing cultural norms of gender roles in marriage and with respect to views of individual agency in marital practice and divorce. Examining two recent cases from a court in rural Zanzibar will demonstrate exactly how a judge determines the intention behind actions by considering the range of possible meanings of divorce-related actions in the cultural context of Zanzibar. In assessing the relationship between outward actions and intangible inner states, the judge considers the possible scenarios in which a divorce-related legal action can occur. He determines the most likely meaning of the action through considering the evidence presented in court by litigants and witnesses in light of such scenarios. The cases examined here are examples of disputed divorce, those in which husband and wife disagree whether a valid divorce has taken place outside of the court. A detailed look at the proceedings of two similar cases shows the ways in which the kadhi determines the validity of out-of-court divorce actions through assessing the intentions of the actors involved. The cases show that establishing validity is not simply a matter of determining whether the divorce has been issued, but hinges on whether the proper intention was there when the divorce action was performed. If the meaning of the action relies on the intention, how, in such circumstances, can the intention of the actor be established? Messick (2001:178) has written, "Given the assumed gap between forms of expression and intention, legal analyses amount to attempts to erect bridges from the accessible to the inaccessible. The interpretive work of evaluating spoken and written expression ... represents such a bridging effort." This article demonstrates one jurist's practice of bridging through his recognition of the multiple interpretations of actions and the motivations of the actors based on the presupposition of scenarios of male-female, husband-wife interactions at this particular point in Zanzibari social and cultural history. More broadly, the research contributes to the anthropology of law and Islam. It builds on the work of contemporary scholars who argue that Islamic law should not be considered immutable and extracultural, but rather should be acknowledged as flexible, culturally located, and open to interpretation (Haeri 1989; Messick 1993; Bowen 1999; Mir-Hosseini 1993). In much of the Muslim world, Islamic family law is part of the state legal system, and many states make provisions for primary-level Muslim courts. There is a growing, though still small, literature on how Islamic law is interpreted and applied by jurists at the local level, and how litigants apply legal knowledge and use Islamic courts (e.g., Rosen 1989; Dwyer 1990; Hirsch 1998; Mir-Hosseini 1999). Any study of courtroom practice and judicial reasoning must take into account the broader picture; for "a reading of the record alone--or for that matter, observation of the entire courtroom proceeding--would not reveal the complexities of the case" (Rosen 1995:197). …
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