Book Chapters by Baudouin Dupret
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
The positivist dogma contends that judges must base their judgements on rules that are clear and ... more The positivist dogma contends that judges must base their judgements on rules that are clear and general, and whose application is predictable. In this sense, rules have a determinate meaning and judges apply them in a mechanical way. Against this dogma, the realist critique argues that legal rules and principles are indeterminate, malleable, filled with implicit assumptions, and open to interpretation. Between these two extremes, contemporary legal doctrine recognizes the fact that there is always a degree of indeterminacy in the interpretation and application of rules, but that this does not preclude the fact that, in most cases and especially those deemed "easy", there is little disagreement as to applicable rules, that people routinely understand rules, and that they more or less blindly follow them. In difficult cases whose legal basis is less explicit and necessitates a more stringent effort of interpretation, it is nevertheless true that judges' discretion is much wider and permeated by factors external to legal rules per se, like moral and political principles, standards of justice, and professional practices. In other words, law, which is logically distinct from morality, proves thoroughly moral in the operation of its cognition.
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
and in different languages (Bennett and Hacker, 2003). If one considers that the word "law" is a ... more and in different languages (Bennett and Hacker, 2003). If one considers that the word "law" is a concept, the question is to know to which common abstraction many words are referring. Some insights into the concept of positive law might provide us with a heuristic start to the analytical definition of habit, custom, and convention. In that respect, Bernard Murphy's Philosophy of Positive Law offers an important starting point, although his thesis is very contentious and deeply problematic (Murphy, 2005). Positive law, Murphy claims, is generally understood, in the Common-law community, as the law enforced by courts, referring to a certain kind of source and content, which is enough for practical legal purposes. If one aspires to a deeper account, the notion extends to the law laid down by an authority and distinct from the principles of justice and morality. In this reading, positive means two different things: in the first sense, it is an empirical and descriptive claim about the origins of law (its authority: in contrast to custom, positive law finds its source in some authoritative enactment); in the second sense, it is a normative claim about the content of the norm as lacking intrinsic moral necessity (its force: in contrast to natural law, positive law lacks intrinsic moral force). In this latter sense, positive law is distinct from the natural (natural law) and the normal (customary law): positive law regards what is deliberately stipulated, not what is divinely or tacitly established. Henceforth, customary law falls between two stools, being neither natural nor deliberate.
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
CHAPTER 5 REIFYING THE MIND The Development of Forensic Psychiatry in Egyptian Law and Justice In... more CHAPTER 5 REIFYING THE MIND The Development of Forensic Psychiatry in Egyptian Law and Justice Introduction In a letter dated 13 December 1843, 1 the chief doctor of Cairo Civil Hospital, Dr. Saillomy, reported that, on the French Consul's request, he visited a certain Christophe Zambelli, a French protégé, who was detained at the Consulate, after his arrest and transfer by the Egyptian police for the murder of a Sardinian citizen, Mr. Biaginni, for the purpose of establishing his "state of mental alienation" (un état d'aliénation mentale). In Dr. Saillomy's own terms: We actually found the patient in a state of non-febrile delirium (délire non febrile), and all the research we could conduct in that respect confirmed our opinion that the patient is currently affected by a bout of monomania (accès de monomanie) that relates to his state of detention. That is, in his delirious mania (délire maniaque), he is under the influence of the obsession with the idea that he deserves, and must soon endure, capital punishment. Considering that, according to reports from several people, he had already presented unequivocal signs of bouts of alienation two years previously (signes non équivoques d'accès d'aliénation), that he was treated last year by Doctor Cugini for delirium tremens; that indeed the immoderate consumption of alcoholic liquors in which the patient habitually indulges is a very strong predisposing cause of these mental afflictions (affections mentales), we are disposed to believe that, although Mr. Zambelli does not find himself in a state of permanent alienation (état d'aliénation permanente), he could suffer from a bout of monomania because of his immoderate consumption of alcohol, and that at this moment he is positively afflicted with a bout of monomania developed under the influence of his situation of being accused. Considering that, in the place where he is detained, the patient cannot receive the medical help that he needs, and also that long-term observation and continuous surveillance are indispensable to positively determining the normal state of his mental faculties (facultés mentales), we conclude that he must be transported to the Azbakiyya Establishment for the Insane (l'Etablissement des aliénés de l'Esbékié) where he should remain as long as his condition requires. 2
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
CHAPTER 4 MOROCCO'S CONSTITUTIONAL MOODS Determinism and Contingency in Moroccan Constitutionalis... more CHAPTER 4 MOROCCO'S CONSTITUTIONAL MOODS Determinism and Contingency in Moroccan Constitutionalism 1 "A government of laws and not of men" according to John Adams, the rule of law finds its expression in a specific document: the constitution. However, despite (or because of) being an integral part of nation building the concept of constitution is relatively new. The Massachusetts constitution of 1780 represents the first document of this kind. The drafters of the American Federal constitution of 1787 and the French constitution of 1791 were "fully aware that they had created something very innovative" (Halpérin, 2014: 73). Although it did not appear in a vacuum-Montesquieu spoke, in De l'esprit des lois, of an "English constitution," referring primarily to the Magna Carta of 1215 and to the Bill of Rights of 1689-constitutionalism is a late modern concept that has an "historical ontology"; that is to say, its birth, life, transformation, and eventual death can be described (Hacking, 2004). Despite its strong association with natural law, it emerged in parallel with legal positivism, including codified law. However, it also represents a very distinct phenomenon, because of its political meaning and especially because of its association with major changes, or even upheavals, in the political regime.
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
What is legal praxeology? In other words, what is this perspective that claims to consider the la... more What is legal praxeology? In other words, what is this perspective that claims to consider the law through the practices that take the same law as their point of reference? What is the space that exists between formalism, which, to put it bluntly, views judges as prisoners of the rules that statutes compel them to apply, and sociologism, which, to put it equally bluntly, views them as being under the influence of their social status, their moods, and their total discretion? Legal praxeology is the approach that takes law seriously in all its formal and sociological depth. This means that it considers absurd the pretention of dealing with law while ignoring what its practitioners take as essential to their activities, that is, the rules; but it finds it equally indispensable to deal with these rules and the activities that refer to them through their modes of accomplishment. In sum, legal praxeology calls for the socioanthropological analysis of the practice of "doing the law" and "acting as a lawyer".
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
also the less honorable objective of controlling bodies and souls. The modern state, itself a pro... more also the less honorable objective of controlling bodies and souls. The modern state, itself a product of these legal constructions (and compared by Hans Kelsen, 1945: 189, to a national legal order), has become, thanks to this Great Divide, a global model consecrated in 1945 by the United Nations, whose 193 member states cover practically the whole world. With the positivization of the law, a whole new discourse formed, a new episteme, fashioning previously unseen categories as much as recycling old ones. The motivations that governed this positivization of the law are manifold and sometimes limited to mimicry and fashion, but today the phenomenon has left practically no part of the world untouched.
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
This chapter addresses the question of the concept of law and its analytical relevance. By mixing... more This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,
Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021
Religion, Pluralism, and Law: Studies in Global Perspective (D.E. Guinn et al., eds., Scholars' Press), 1998
The Mediterranean Region under Climate Change. A Scientific Update (IRD Press), 2016
Constitutionalism, Human Rights and Islam after the Arab Spring (R. Grote et al., eds., Oxford University Press), 2016
Contemporary experiences of integrating Sharia in the legal body of nation-states took place in s... more Contemporary experiences of integrating Sharia in the legal body of nation-states took place in such a way that we can talk about disruption of the economy and the epistemology of Islamic normativity. Its overall balance, its fundamentals and its morphology – or what we might call its grammar – have been transformed completely. This is true at a substantial level, where applicable norms are largely formulated through codification. This is also true at an institutional level, with the establishment of constitutional architectures dedicated to the separation of powers, the hierarchy of jurisdictions, the legislative principle, the popular representation, and the fundamental rights and freedoms, within which Sharia is deemed to be a reference framework rather than specific and directly applicable rules.
Law at Work: Studies in Legal Ethnomethods (B. Dupret et al., eds., Oxford University Press), 2015
For people committed to a given course of action, the objectivity of social facts is a non-reflex... more For people committed to a given course of action, the objectivity of social facts is a non-reflexive resource which is organized in a way constrained by the conditions, context and purposes of the situation. This objectivity has a "practical grammar" which relates multiple times and sites. In a succession of takes and retakes, the documentation of the past period to which it is referred proceeds through the objectivizing mise en abyme of the facts, events or objects in question: the present organizes the referred-to past within a local structure of relevance. Praxiological sociology-of law among other subjects-has often been criticized for being micro-sociological and, consequently, of being unable to encompass broader "social structures" and their historical dimension (i.e. time in the sense of longue durée). We would like to show that such criticism does not survive the challenge of actual praxiological inquiry. The praxiological study of law is neither "micro" nor "macro". Macro-sociological relevancies find their place in such inquiry, insofar as they are of concern to the people whose practices are under study. Historical temporality is therefore integral to such practices, on the condition however that it is relevant to people committed to a given course of action and not of suppositions which are specific to and imposed by the sociologist. In this chapter, we address members' orientations to the temporal dimension of law. In order to do this, we will analyze how the practical grammar of law unfolds in situations beyond those involving immediate co-presence, before addressing how members sequentially weave the law into such situations. Secondly, we will specifically address the role that time and history can play in such an approach. At each stage we will present legislative and judicial material that enables us to make our case. More precisely, we shall examine extracts from parliamentary debates, court decisions and family law proceedings in Egypt. Among other things, we will show how a network of legal and judicial bodies, and the historicity of their actions, are endogenously objectivized by the parties involved in the particular courses of action.
After Orientalism: Critical Perspectives on Western Agency and Eastern Re-appropriations (F. Pouillon et al., eds., Brill), 2015
Normativity in Muslim societies existed before, and independent of the introduction of the concep... more Normativity in Muslim societies existed before, and independent of the introduction of the concept of Islamic law at the end of the eighteenth century. However, nowadays the concept of Islamic law has become so self-evident and politicised, for Muslims as well as for outsiders, that some Muslims consider the analysis of its coming into being as a provocation. Despite this, in this talk I sketch the development and spread of this way of understanding of normativity in Muslim societies, a process in which orientalists and politicians transformed it into Islamic law. In the West scholars only started to study Islamic law seriously from the end of the eighteenth onwards. European colonialism stimulated the quest for knowledge of local law overseas. The European governments needed to become better informed about the rules and norms of the societies which they colonised, in order to impose their rule and maintain order. This process of knowledge formation meant imposing Western concepts such as “law” on alternative understandings of normativity and social order. In this short essay we investigate the history of this scholarly and political concept by analysing some examples taken from the Dutch and French traditions of the study of Islamic law, and from the post-colonial teaching and legal practices in some Muslim societies.
Concepts of Law: Comparative, Jurisprudential, and Social Science Perspectives (S.P. Donlan et al., eds., Ashgate), 2014
The question "what is law" is devoid of relevance. There is no such thing as law per se. There ar... more The question "what is law" is devoid of relevance. There is no such thing as law per se. There are only ascriptive uses of normative words and expressions sharing family resemblances across languages, cultures, institutions, activities and contexts. By ascriptive, I mean that these words serve to qualify several kinds of entities, e.g. persons, actions, places and groups. As a consequence, there is no definition of law that should be looked for; one may only achieve descriptions of the surface and deep grammars of these normative "language games". Law is not an empirical reality that must be discovered; it is a conceptual issue that cannot be severed from the context of its uses. This paper is an effort at clarifying all this. It will not reveal anything new, but will help to sort out questions, avoid logical deadlocks, put issues straight, and set the proper conditions for the adequate description of normative language games at work. Centuries of definitional endeavours have not solved the question of what "law" is.
Popular Housing and Urban Land Tenure in the Middle East: Case Studies from Egypt, Syria, Jordan, Lebanon and Turkey (M. Ababsa et al., eds., American University in Cairo Press), 2012
This chapter addresses the issue of how real estate transactions are organized in Damascus, in so... more This chapter addresses the issue of how real estate transactions are organized in Damascus, in so-called informal neighbourhoods, i.e. city quarters which developed by violating the law on rural lands theoretically improper for development. There are many different practices, which may look random, yet they are shaped through a complex relationship to the law, which acknowledges the existence of informal neighbourhoods, called mukhalafat in Arabic, in different ways. We shall describe this relationship through one single case study, by analyzing documents kept by the buyer of a property: Mrs. Sabbah. The flat Mrs. Sabbah bought is located in the Palestinian refugee camp Mukhayyam al-Yarmuk. The status of its real-estate property is subject to rules different from those of other Damascus neighbourhoods. For the Land Registry Department, this land is registered as rural and belongs to the northern region of the United Arab Republic. A specific department was created in the 1940s to administer affairs related to Palestinian refugees: the Foundation for Palestinian Refugees (al-Mu'assasa li-l-laji'in al-filastiniyyin). Among its responsibilities is the administration of land in the Yarmuk area on which it has a 99 year leasehold. It is responsible for the parcelling out of the land and for its allotment to Palestinian refugees. In parallel, the municipality (baladiyya), also called the Local Council, is responsible for the issuing of building permits and the registration of house tenancy contracts. Most of the documents consulted concern real estate transactions on different properties located within the same building, on al-Ja'awna street, in the historical heart of the Camp, on a parcel containing around one hundred buildings. The specific building we are dealing with, which is not registered in the Land Registry, was built in several stages. The initial construction comprised a ground-floor and one storey. Today, the building has four storeys. The documents kept by Mrs. Sabbah and the relating real estate transactions explain how many storeys were added to the building and how they were sold. Mrs. Sabbah's file also includes water and electricity bills plus one house tenancy contract. These documents can be analyzed in two ways. First, we shall see how they describe the property for specific practical purposes and how, therefore, they do it in different ways. Second, we shall observe how this file, comprising various documents, reflects the complex history of this property, the specific language games which are attached to it, and its internal organization around principles of the contiguity of properties and the succession of legal deeds, in order to secure the buyer's property rights.
Ethnographies of Islam: Ritual Performances and Everyday Practices (B. Dupret et al., eds., Edinburgh University Press), 2012
In this chapter, we address the question of the reference to Islam as a social practice, not in a... more In this chapter, we address the question of the reference to Islam as a social practice, not in abstract terms, from an overhanging viewpoint, but as it is embedded in members' routine activities. Hence, the interest for ethnography in our undertaking, for referring-to-Islam is a situated accomplishment that must be described in context and in action. What it contextually means and "does" to refer to Islam can only be elucidated through a close description of people's orientation to, and reification of, categories as they emerge from their actual encounter with social matters. The context we are dealing with is the Egyptian Parliament in the course of a session that was part of the broader polemic that ensued the publication of declarations allegedly held by the Minister of Culture Fārūq Husnī, in which he considered the Islamic headscarf as a mark of backwardness. This session constitutes a "perspicuous setting" i for the study of referring-to-Islam as a situated practice, since references to Islam proved numerous as it unfolded.
Legal Pluralism in the Arab World (B. Dupret et al., eds., Kluwer Law International), 1999
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Book Chapters by Baudouin Dupret