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How Muftis Think: Islamic Legal Thought and Muslim Women in Western Europe

HOW MUFTIS THINK – Book Sample

Contents – HOW MUFTIS THINK

• Acknowledgements ix
• A Note on Transliteration xi
• Introduction 1
• Muftis and Fatwas in Europe 3
• Three Dimensions of Fatwa 7
• A View of the Islamic Legal Tradition 11
• The Law: Sharia and Fiqh 13
• Islam, Women, Fatwas—and Gender 17
• Research on Fatwas 21
• History of the Project 24
• The Data 26
• History of the Data and My Experiences as a Researcher 30
• The Structure of This Book 34

Part 1Women, Fatwas, Actors

• 1 Continuity and Change: Fatwas and Fatwa-Giving on Women’s Issues in Historical Perspective 39
• The Fatwa in Early Islamic History 39
• The Fatwa Literature 41
• Fatwas and Women-Related Questions 43
• Women in Focus—a Twentieth-Century Trend 48
• Muhammad Abduh as a Mufti 55
• The Salafiyya Movement 57
• Muhammad Rashid Rida 59
• Rida’s References 60
• Rida and Women’s Issues 61
• Changing Views of the West 63
• Muhammad al-Ghazali 65
• Yusuf al-Qaradawi 70
• Europe: The Concerns of the Mufti 78
• onclusion 82
• vi contents
• The Muftis and the Fatwa Institutions 84 Syed Mutawalli Darsh 84
• The European Council for Fatwa and Research (ECFR) 88 Union des Organisations Islamiques de France (UOIF) and Dar al-Fatwa 101
• Barkatullah Abdulkadir 122
• Conclusion 123

Part 2 The Fatwas

• Agony Uncle: The Fatwas of Syed Darsh 127 Introduction 127
• Muslim Women’s Challenges as Revealed by the Questions 130
• The Women in the Questions 133
• The Fatwas 135
• Within Marriage 139
• Sexuality and Reproduction 142
• Social Relationships 144
• Bodily Care 147
• ʿIbādāt 148
• Characterizing the Fatwas 150
• The Construction of Muslim Women 153
• Women’s Issues and Collective Fatwas: The Case of the ECFR 156 Introduction 156
• The Questions 160
• The Women in the Questions 161
• The Fatwas 162
• Characterizing the Fatwas 183
• View of Women and Gender Relations 185
• Conclusion 189
• Fatwa, Legitimacy, and Authority 190 Introduction 190
• Concerning Haircuts 191
• Women in Mosques 196
• A qarār from the ECFR 201
• Comparison of the Fatwas and the Resolution 204
• contents vii
• Boundaries and the Borderless 206
• Al-mustaftī and the Authority of the Fatwa 207
• Conclusion 210

Part 3 The Muftis’ Reasoning in Local Context

• Fatwas in Context: Muftis and Local Challenges 215
• Introduction 215
• Syed Darsh 216
• Guardianship (wilāya) 218
• Polygamy 221
• The ECFR 224
• Larabi Becheri 234
• Barkatullah Abdulkadir and the Marriage Contract 243
• Summary and Conclusions 256
• Maqasid al-shariʿa and Modern Common Morality 260
• Introduction 260
• Maqāṣid al-sharīʿa 262
• Modern Common Morality 266
• Common Morality and the maqāṣid 268
• 8 Concluding Reflections 275
• References 285
• Quranic Verses Cited 298
• eneral Index 299

Concluding Reflections

This book has examined fatwas as proposed solutions for the challenges faced by Muslim women in Western Europe. Muslim women are torn between two competing sets of norms: the traditional principle of inequality (or the neo-traditional principle of complementarity), with a stress on women’s duties and subordination; and gender equality, with a stress on women’s rights and equality before the law.

I have explored whether Islamic scholars contribute, through their fatwas, to reconciling adherence to the Islamic tradition with the Western European ideal of equality. In the process, I have uncovered potential contributions to a dialectics that reconciles these sets of norms or defers the conflict between them.

I have used the concept women-related fatwas to render women’s issues visible, which they often are not in descriptions of religion. From this starting point, it was natural to explore where women-related fatwas are found. What documentation is there to shed light on women-related fatwas?

 The scholarly literature on fatwas covers everything from the formative period of Islam until the present. My materials are from the recent period, fatwas given after 1992, but as a background, I have also briefly discussed women-related fatwas in historical perspective. One work from the formative period, Muwaṭṭaʾ, ascribed to Malik bin Anas, provided directions for future fiqh manuals and, in part, for fatwa collections, up until the modern period.

The fatwa from the Muwaṭṭaʾ presented in chapter 1 well illustrates the point of defining Islam as “a discursive tradition”.1 It is not just a matter of the arguments, but also of the contexts that help to shape them.

In late 19th-century Egypt, a change took place with regard to women as a topic of Islamic discourse. The idea of social reform had taken root, and women’s questions in particular were vigorously debated. The modernist project consisted in bridging the gap between traditional Muslim culture and modern Western influence, without going against central Islamic dogma.

An important concern for Muhammad Abduh, and for the line of subsequent fatwa actors I have presented, was doing ijtihād and arguing for concepts and methods for the derivation of norms. Since the use of concepts and methods is as important in the eyes of the scholars as the norms themselves, Abduh’s way of arguing may also be interpreted as a strategy for gaining legitimacy and authority among other scholars.

I have described the 20th-century actors Muhammad Abduh, Muhammad Rashid Rida, Muhammad al-Ghazali and Yusuf al-Qaradawi, as background and explanatory lens for the actors and fatwas I have studied. They form a continuous line that ends in Western Europe with al-Qaradawi, and they rep-resent one trend among fatwa actors, namely those who claim to take the existence of Muslims as minorities into account in fatwa-giving.

The views of the above-mentioned persons all exemplify how the social and cultural context and historical developments impinge on the performance of ijtihād, which in turn underlines how suitable is the description of Islam as a “dis-cursive tradition,” a concept that manages to capture the complexity of the context.

The overwhelming modern-day Muslim interest in women finds expression inter alia in the structuring of fatwa collections. Yusuf al-Qaradawi’s books al-Ḥalāl wal-ḥarām fil-islām and Min hadī al-islām have been presented as examples. The headings of “Woman” and “Family” organize the women-related fatwas. The use of these two concepts places al-Qaradawi within Islamic mod-ernism.

The former reflects the modernist focus on women, while the latter, “Family,” is a concept that was adopted by the modernists and that represented a re-articulation of kinship ties.

Rashid Rida was the publisher-in-chief of the al-Manār magazine. This was a new channel for spreading the Islamic message, which had traditionally taken the form of sermons and private fatwas, and an important step in the democ-ratization of access to knowledge about Islam. This has been a steeply growing trend over the 20th century, in an ever-increasing number of media. The new medium of the printing press also played a significant part in building the charisma and authority of new actors in the fatwa field. It seems to have given rise to a debate on who is entitled to give fatwas. I have sketched two responses: The first is al-Qaradawi’s book al-Fatwā bayna l-inḍibāṭ wal-tasayyub, which falls into the ādāb al-fatwā genre, and is intended as a remedy against every Tom, Dick and Harry declaring matters and actions “forbidden” or “permitted”.

The second is a declaration that the time has come for the scholars to “take back Islam” from the so-called “engineers,” who the scholars think lack the necessary schooling, and to take on the task of leading the believers through Islamic jurisprudence in Western Europe. I think these two concerns are part of the motivation behind the founding of the European Council for Fatwa and Research (ECFR) in 1997.

Chapter two presented selected fatwa actors in Europe: two local muftis, Syed Darsh and Barkatullah Abdulkadir; one national collegial body of muftis, the Paris-based Dar al-Fatwa; and one transnational council, the ECFR. I have given an account of their profiles, work, and use of concepts and methods. The French Dar al-Fatwa turned out to be part of a whole network of committees and activities in one of the nationwide French Islamic organizations, Union des organisations islamiques de France (UOIF).

The network includes institutions of learning that aim to educate future muftis. The members of Dar al-Fatwa argue for different sets of concepts and methods. One of these is similar to the canon of the ECFR. Tareq Oubrou has advanced his own theory of sharia de minorité in which the fatwa is understood as a key to the integration of Muslims in Europe.

When the UOIF is discussed in the scholarly literature, one cannot ignore claims about whether the UOIF represents the Muslim Brotherhood on French soil, and forms a potential political threat. I have presented an analysis of the dominant media discourse on “Islam in France” in order to understand the dynamics of evolving views of the UOIF. At the end of the 1970s and in the 1980s, they were tied to the revolution in Iran and the settlement of immigrants in France.

In the 1990s, they were mainly about the establishment of an islam de France and the media’s division of Muslims into “moderates,” who should be defended, and “Islamists,” who should be fought. After 11 September 2001, the media discourse on Islam has been characterized by a focus on national security, closely tied to national identity. In my view the scholarly literature has a rather limited focus where the UOIF is concerned, and that the materials I have presented here represent new knowledge.

The London-based Syed Darsh, the Paris-based Dar al-Fatwa and the Dublin-based European Council for Fatwa and Research all relate in their work to a certain canon of concepts, methods and references. This places them within what John Bowen calls “the global field of reference and debate,” one dimension of transnational Islam. The acceptance of the same canon by other scholars secures the legitimacy and authority of the individual mufti. The use of concepts and methods, therefore, has proven to serve as a canon in the sense of “a rule, standard, ideal, norm, or auhoritative office”.2

The fatwa actors I have looked at use different words for “fatwa,” such as “questions and answers,” fatwā and qarār. While the use of “questions and answers” was an expression of Darsh’s modesty—he claimed he was not doing ijtihād, just trying to help—the ECFR’s use of qarār entails a claim to authority. As a “collective mufti,” the Council has itself raised issues it thinks important for Muslims in Western Europe, and has given what it calls resolutions (qarārāt) in the framework of fiqh al-aqalliyyāt. The concept of fiqh al-aqalliyyāt repre-sents the ECFR’s claim to legitimacy vis-à-vis other fatwa councils, and its claim to European soil as its own “jurisdiction”. The use of the term qarār would seem to be meant to underline this project.

The concept of naṣīḥa also came up in my interviews. According to the muftis, Muslims are not coming only for fatwas, but just as often to seek advice of a not strictly religio-legal nature. I had not seen the concept of naṣīḥa dealt with in the scholarly literature before, so I chose to explore the sources, con-tent, and etiquette of such counseling. Based on these findings I have briefly compared fatwa and naṣīḥa.

Fatwas, both questions and answers, represent social data, and have been important sources for research on the society and culture of the medieval Mus-lim world.3 I took the same approach by using the questions posed as the starting point for defining the issues that challenge Muslim women in West-ern Europe today. I developed a typology with categories of questions based on the questions that are in fact asked in my materials.

In this connection, I found that some important issues of Islamic family law are all but absent from the fat-was: questions of inheritance and mahr (the bride-gift). It would be interesting to shed light on the reasons for the silence on these topics, but that falls outside the scope of this book.

I have shown that the fatwas vary in form and linguistic style. The fatwa texts all reflect the muftis’ power of definition, but they also exemplify how the fatwa is in various ways adapted to the addressee, who thus also influences the shap-ing of the text. The means used are education, diplomacy, reprimands, personal opinions, and emotional arguments. The aim is the improvement of the Mus-lim self of the reader.

My theoretical point of departure was the perspective of recent research on Islamic law that looks at fatwas as an instrument and expression of change in Islamic jurisprudence. I have also drawn on Agrama’s analysis of fatwas and authority, and John Bowen’s definition of transnational Islam as a global field of reference and debate. Agrama criticizes what he sees as a one-sided focus on fatwas as instruments of change in Islamic jurisprudence and as a bridge between the past and the future. His theory is based on observation of oral fat-

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