RS 2 ISLAM-N-WEST
FALL 2023 T/TH 1230-1345, Phelps 3505
[email protected], HSSB 3032
Should Greek Muslims expect any protection by the Lausanne Treaty (1922/3), which would allow them to practice aspects of their traditional life? ShouldMuslim convicts (converts or not) expect some deference to their religious beliefs in US prisons? How about the extent of the rights that should be given to Muslim immigrants, old or new, in Germany? AreWestern societies better for Muslims today thanMuslim-majority societies? Do historical backgrounds give us any insights into how to answer these questions? Or are these basic questions of Human rights? These are some of the issues we hope to cover in the next ten weeks.
With the exception of the last piece (on Egypt), each assignment in the reader will correspond to three class sessions. If you plan to miss too many classes or sections, please drop out. Forty percent (40%) of your grade is based on oral participation in class and sections and 60% are assigned to an essay, a reaction to a never-seen-before text, which you will receive on the last day of classes and have 12 hours to complete.
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The Last Sharīʿa Court in Europe: On Molla Sali v. Greece (ECHR 2018)
Maurits S. Berger Leiden University
Abstract On its face, the ruling in Molla Sali v. Greece (European Court of Human Rights 2018) was about choice of forum: in an inheritance dispute, could heirs choose to apply Islamic inheriance law or did a will drawn up in ac- cordance with Greek inheritance law govern a Muslim decedent's estate? The case is significant not so much for its outcome, but because it involved features of two legal systems that are relatively unknown among Europe- an and American jurists: interpersonal law and Islamic law in the autono- mous region of Greece. The Court's reasoning provides detailed insight into how features of these systems may clash with systems of European civil and common law, particularly in the framework of human rights.
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Introduction
The 2018 ruling of the European Court of Human Rights in the case of Molla Sali v. Greece1 reminded me of a heated conver-
sation I had in 1998 with an Arab lawyer. She had studied law in Europe but practiced in the Middle East. The discussion started pleasantly enough with talk about the intricacies of Islamic fam- ily law. Then she asked about the legal possibilities for Jews and Muslims in Europe, but when I answered that almost all European countries apply a single civil law to their citizens, she flew into a rage: “What, are they not entitled to their own religious family laws? But that is against freedom of religion!” Taken aback, I ar- gued that all Europeans were perfectly free to fulfill religious legal requirements for their family life, but that the principle of equali- ty before the law demanded that nationals were governed by the same law. It did not convince her: my call for equality before the law clashed with her demand for religious diversity as a matter of freedom of religion. This was a veritable clash of legal cultures. “If I were a European, I would take this matter to the European Court of Human Rights!” she ended our talk bellicosely. It took twenty years for this to happen.
The ruling of Molla Sali v. Greece is not so significant for its outcome, but for the fact that it involved choice of law questions in two legal systems that are relatively unknown among European and American jurists: interpersonal law and Islamic law. These are two systems of law with their own internal logic and coherence. The Court's reasoning provides close insight into how the features of these legal systems may clash with systems of European civil and common law, particularly in the framework of human rights.
I. The Case
Molla Sali and her husband belonged to the Muslim mi- nority of a Greek province called Western Thrace, located at the
1 Molla Sali v. Greece, App. No. 20452/14, Eur. Ct. H.R. (2018), https:// hudoc.echr.coe.int/eng?i=001-188985 [https://perma.cc/EFA7-7DL7].
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most eastern tip of the European continent.2 This minority was entitled to have its family and inheritance law regulated by Islamic law, as will be explained in more detail below. However, the hus- band decided to make his will according not to Islamic law but to Greek civil law, and he left his entire estate to his wife. When he died, his sole heirs were his wife and two sisters. These sisters contested the deceased’s will because under civil law they were not considered heirs, whereas under Islamic inheritance law they were intestate heirs. The question therefore arose whether the husband had the freedom to choose Greek inheritance law or was bound by Islamic inheritance law.
While the legal question in this case seems quite straight- forward—is choice of law allowed?—the typical situation in this part of Greece and the manner in which the case was legally put before the European Court of Human Rights raised several other legal questions of importance. But before we discuss these points, we first need an understanding of the Greek situation.
II. Interpersonal Law
Greece is perhaps the only country in Europe that inherit- ed the Ottoman system of plurality in family law. According to this system, there is not one single (civil) family law for the entire pop- ulation, but a number of religious family laws that coexist within a single state. In the case of the late Ottoman Empire, thirteen re- ligious communities (millets) were recognized by the state, each with its own family law and courts.3
This system of plurality in family law is still maintained in many countries in the world, whereby these family laws can per- tain to ethnic as well as religious communities. In the case of the
2 To name a region “Western” while it is located in the east is confusing, but the region of Thrace straddles Greece on its western part and Turkey on its eastern part.
3 These thirteen were: Greek Orthodox, Catholic, Syrian Catholic, Chal- dean Catholic, Syrian Jacobites, Armenian Gregorians, Armenian Catholics, Prot- estants, Melkites, Jews, Bulgarian Catholics, Maronites, and Nestorians. Kamel S. Abu Jaber, The Millet System in the Nineteenth-Century Ottoman Empire, 57 Muslim World 214 (1967).
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Middle East, for instance, Syria has one Islamic, one Druze, eleven Christian, and two Jewish family laws;4 Egypt has one Islamic, six Christian, and two Jewish family laws;5 and Israel has one Islamic, one Druze, four Christian, and two Jewish family laws.6 Greece is not as excessive as this, and with its two family laws (civil and Is- lamic) is more comparable to Morocco (Jewish and Islamic law).
In legal theory, such systems are considered a sui generis field of law, referred to as “interpersonal law” (or “interreligious law” when the laws in question are all religious). Most studies of this field in English, French, or German date from the first half of the twentieth century, mostly as a matter of colonial interest.7 Both the lack of study and practice of interpersonal law in Europe since then may explain why this system of coexisting national fam- ily laws is exotic and little known to today’s European jurist. We will see below that this had its effect on the Court’s ruling.
To understand the relevance of all this to Greece, we need to go back to the nineteenth century, when Southeastern Eu- ropean peoples were fighting Ottoman rule and claiming inde- pendence, often resulting in the practice of ethnic and religious cleansing. While this was mostly done by means of armed conflict, Greece and Turkey decided to do so by mutual agreement with regard to the Muslim Turks residing in Greece and the Orthodox Greeks residing in Turkey. In 1923, Greece and Turkey agreed to swap these nationals: an estimated 1.5 million Greeks were forced
4 Maurits S. Berger, The Legal System of Family Law in Syria, 49 Bulle- tin d’études orientales 115 (1997).
5 Maurits S. Berger, Public Policy and Islamic Law: The Modern Dhimmi in Contemporary Egyptian Family Law, 8 Islamic L. & Soc’y 88 (2001).
6 Jayanth K. Krishnan & Marc Galanter, Personal Law and Human Rights in India and Israel, 34 Isr. L. Rev. 101 (2000).
7 There is no recent literature on this topic. In my own research I have made grateful use of authors like: Kessmat Elgeddawy, Relations entre systèmes confessionnels et laïque en droit international privé (1971); Klaus Wähler, Internationales Privatrecht und interreligiöses Kollisionsrecht (1981); G.W. Bartholomew, Private Interpersonal Law, 1 Int’l & Comp. L.Q. 325 (1952); Raoul Benattar, Problème de droit international privé dans les pays de droit personnel, Re- cueil des cours de l’Académie de droit international de La Haye 121 (1967); Pierre Gannagé, La distinction des conflits internes et des conflits internationaux de lois, in 1 Mélanges en l’honneur de Paul Roubier 228 (1961).
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to move from Turkey to Greece, and an estimated half a million Turkish Muslims from Greece to Turkey.8 Only a small community of Turks in the Greek province of Thrace and a small community of Greeks in Istanbul were not included in this population exchange. For them, Greece and Turkey concluded treaties in which they re- ciprocally guaranteed that these minorities could maintain their rights.9 These rights were the typical religious minority rights of that time, which included the right to have religious family law applied.10
In the case of Greece, the jurisdiction of Islamic family, property, and inheritance law for the Muslim minority in Western Thrace was given to the muftīs, Islamic scholars who doubled as ju- risconsults and judges, and whose rulings were recognized by the Greek state.11 In Western Thrace, three Islamic courts (muftiyet) were established in the cities of Xanthi, Komotini, and Didymote- icho. In the century following these treaties, this arrangement in Western Thrace was a freeze frame of Ottoman times. The law and the judicial system in this region remained as it was, untouched by any changes. The most typical example of the fossilization of this arrangement is perhaps the fact that the rulings in the court of Komotini are still written in the old Ottoman language and script
8 Onur Yildirim, Diplomacy and Displacement: Reconsidering the Turco-Greek Exchange of Populations, 1922–1934, at 90, 106 (2006).
9 Treaty of Peace with Turkey Signed at Lausanne (Treaty of Lausanne), July 24, 1923, 18 L.N.T.S. 11 (1924), reprinted in 18 Am. J. Int’l L. 4 (Supp. 1924), inter alia, art. 45: “The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.”
10 Treaty Concerning the Protection of Minorities in Greece (Treaty of Sèvres on Minorities), Aug. 10, 1920, 28 L.N.T.S. 243, reprinted in 15 Am. J. Intl’l L. 161 (Supp. 1921), inter alia, art. 14: “Greece agrees to take all necessary measures in relation to Moslems to enable questions of family law and personal status to be reg- ulated in accordance with Moslem usage.”
11 Treaty of Athens (1913), art. 11: The muftis, in addition to their authority over purely religious af- fairs and their supervision of the administration of vakouf [pub- lic] property, shall exercise jurisdiction between Muslims in mat- ters of marriage, divorce, maintenance payments (néfaca), guard- ianship, trusteeship, emancipation of minors, Islamic wills, and succession to the position of Mutevelli. The judgments rendered by the muftis shall be executed by the proper Greek authorities.
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that was officially abolished in Turkey in 1928 and has become a dead language ever since, except in this corner of Europe.12
This arrangement was exclusively for the Muslim minori- ty in Western Thrace. No such status was created for Muslims in other parts of Greece, like the islands of Kos and Rhodes, hence the distinction in official terminology between “Muslim minori- ty” (the name for the Muslims in Western Thrace) and “Muslim community” (the name for the Muslims on Kos and Rhodes).13 The “Muslim community” has its own imāms, but no Islamic judges or schools as the “Muslim minority” in Western Thrace has. To com- plicate matters, these Muslims are together called “Old Muslims,” as opposed to the “New Muslims” who have come to Greece as im- migrants during the past decades. The New Muslims, with an esti- mated number of 200,000, are more numerous than the Old Mus- lims. Still, the special status under discussion here only applies to the estimated 130,000 “Muslim minority” in Thrace. And it is to this minority and their legal status that the Molla Sali case applies.
III. Dynamics of Greek Interpersonal Law
As of late, the position of the muftī and the application of Islamic family law in Western Thrace has become a matter of debate in Greek society. The muftī is questioned because of an alleged lack of procedural rule of law, and Islamic family law is criticized for its contravention of human rights standards, in par- ticular the notion of gender equality.14 However, the Greek Consti- tutional Court has consistently adhered to the notion of pacta sunt servanda, arguing that the state of Greece has committed itself by
12 Personal observation by the author in February 2018. 13 For a thorough study on this, see Konstantinos Tsitselikis, Old and
New Islam in Greece: From Historical Minorities to Immigrant Newcomers (2012).
14 Yüksel Sezgin, Muslim Family Laws in Israel and Greece: Can Non-Mus- lim Courts Bring About Legal Change in Shariʿa?, 25 Islamic L. & Soc’y 235 (2018); Angeliki Ziaka, Greece: Debates and Challenges, in Applying Sharia in the West: Facts, Fears and the Future of Rules of Islam on Family Relations in the West (Maurits S. Berger ed., 2013).
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treaty to this legal situation, and that this commitment cannot be altered unilaterally.15
Within the Muslim minority a more practical and pressing question had arisen, namely whether they are obliged to refer to the Islamic court for their family law matters, or if they are allowed to refer to the civil court. In other words, do they have a choice of forum? Since 1982, the Muslim minority members have had the option to choose between a religious (Islamic) or civil marriage.16 But does this mean that all the legal consequences of that mar- riage are governed by that same law? Had a civil marriage been chosen, the answer would have been affirmative: according to the civil court in Xanthi (one of the three cities in Western Thrace), the spouses’ choice for a civil marriage “implicitly indicates their desire not to be subject to the jurisdiction of the divine Muslim law, but to the civil law, like other Greek citizens.”17 A Muslim who had concluded his or her marriage in accordance with civil law was therefore assumed to have opted for civil law for all family law matters after that.
But did the same reasoning also apply to Muslims who had entered into a religious marriage? Had they in doing so “im- plicitly” opted for religious law? This was a controversial issue in the courts until the Molla Sali case. Here was a case of a couple who belonged to the Muslim minority of Western Thrace, who had married in accordance with Islamic law, but where the husband had bequeathed his entire estate to his wife in accordance with civil law.
The Thrace Court of Appeal ruled on September 28, 2011, that the husband was free to choose the type of will he wished to draw up, and therefore was not obliged to follow Islamic law. The Greek Court of Cassation, however, ruled on October 7, 2013, that the law applicable to the deceased’s estate was the Islamic law of succession, based on the various international treaties that
15 Sezgin, supra note 14, at 262–63. 16 Law no. 1250 (1982). 17 Sezgin, supra note 14, at 259 (referring to Xanthi Court of First Instance,
case no. 1623/2003).
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stipulated thus. According to this court, Islamic law was, “pursu- ant to Article 28 § 1 of the Constitution, an integral part of Greek domestic law and prevailed over any other legal provision to the contrary.”18
The case was then brought before the European Court of Human Rights in September 2017, but while still pending there, the Greek legislature moved quickly and introduced a law in Janu- ary 2018 promulgating that:
Inheritance matters relating to members of the Thrace Muslim minority shall be governed by the provisions of the Civil Code, unless the testator makes a notarised declaration of his or her last wishes...,explicitly stating his or her wish to make the succession subject to the rules of Islamic holy law.19
This settled the matter. A year later, the European Court of Human Rights came to the same conclusion based on the rea- soning that denying such choice of forum, as the Greek Court of Cassation had done, would constitute a form of discrimination.
IV. The Ruling
The plaintiff, Molla Sali, had argued her case in terms of non-discrimination: because the Greek state requires the applica- tion of Islamic inheritance law, she was put in a more disadvanta- geous position than if she had been a widow to whom civil inheri- tance law is applied. She invoked the prohibition of discrimination as stipulated by Article 14 of the European Convention on Human Rights: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or
18 Molla Sali, supra note 1, ¶ 18. 19 Law no. 4511 (2018), art. 1, subsection 4(c), which came into force on
Jan. 15, 2018.
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other opinion, national or social origin, association with a national minority, property, birth or other status.”
In order to ascertain whether discrimination had taken place, the European Court of Human Rights followed its standard methodology in such cases: a) is the person in question discrim- inated against, b) is that discrimination justified by a legitimate aim (keeping in mind a “margin of appreciation” for the defending state), and c) are the means pursued proportional to this aim?
To ascertain the discrimination, the Court made the com- parison between the widow of a Muslim man (to whom Islamic family law applies) and the widow of a non-Muslim man (to whom civil law applies).20 The difference was clear, the Court conclud- ed, as according to Islamic inheritance law the Muslim wife would only inherit one-fourth of her husband’s estate (the sisters of the deceased are entitled to the remaining three-fourths) while the non-Muslim woman according to Greek civil law would inherit all of it (as sisters of the deceased are not considered heirs). The ap- plication of “Sharia law,” the Court explained, would deprive the Muslim widow of three-quarters of the inheritance,21 and there- fore “placed the applicant in a different position from that of a married female beneficiary of the will of a non-Muslim husband.”22
The Court then continued with the question whether this difference was justified by a legitimate aim. The Court did not fully address this question as it curtly stated that “it is not necessary for the Court to adopt a firm view on this issue because in any event the impugned measure [i.e., the imposition of Islamic inheritance law] was in any event [sic] not proportionate to the aim.”23 In other words, the Court saw no need to define and evaluate the aim of the Greek state in imposing Islamic inheritance law as this subject of the Court’s argument would be addressed in the last question on
20 The Court “needs to ascertain whether the applicant, a married woman who was a beneficiary of her Muslim husband’s will, was in an analogous or relevant- ly similar situation to that of a married female beneficiary of a non-Muslim husband’s will” (¶ 138 of the ruling).
21 Molla Sali, supra note 1, ¶ 145. 22 Id. ¶ 140. 23 Id. ¶ 143.
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proportionality. The Court was firm in its decision that the means used by
the Greek state were not proportional to the aim, for two reasons. First, the application of Islamic law to the estate at issue “had seri- ous consequences for the applicant, depriving her of three-quarters of the inheritance.”24 Second, Greece was wrong in assuming it was bound by the treaties: “The Court notes that there can be no doubt that in signing and ratifying the Treaties of Sèvres and Lausanne Greece undertook to respect the customs of the Muslim minori- ty. However...those treaties do not require Greece to apply Sharia law.”25 Moreover, the Court argued that “the highest Greek courts disagree as to whether the Treaty of Athens is still in force.”26 The Court also concluded that “the Treaty of Lausanne does not ex- plicitly mention the jurisdiction of the mufti...nor did the treaty confer any kind of jurisdiction on a special body in relation to such religious practices.”27
From this, the Court concluded that the Muslim minority in Greece has the right of choice of family law:
Refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach of a right of cardinal impor- tance in the field of protection of minorities, that is to say the right to free self-identification.28
The Court further argued that this freedom should allow the minority members the right to opt in to, as well as the right to opt out of, the family law that was in place specially for them.
V. Comments on the Ruling
24 Id. ¶ 145. 25 Id. ¶ 151. 26 Id. ¶ 44. 27 Id. ¶ 151. 28 Id. ¶ 157.
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a. Prohibition of Discrimination
Molla Sali argued that an obligatory application of Islamic inheritance law constituted a form of discrimination, as it would put her in a legal position that would be less advantageous than under civil law. The Court, in following her in this argument, how- ever, made a skewed comparison. Ascertaining the act of discrim- ination requires that it is done within the same environment: a woman gets paid less than the man for doing the same job; a ho- mosexual is not allowed for the same function that a heterosexual is admitted for; a woman with a headscarf is not admitted in a restaurant that allows other women. In the case of Molla Sali, that same environment is inheritance law. However, in this particular case there are two entirely different systems at work within this environment: civil and Islamic inheritance law.
In civil inheritance law, there is an equal distribution of inheritance shares among all the heirs. Islamic inheritance law, on the other hand, has a complex two-tier system.29 On the one hand, there is the equal distribution of inheritance shares among all the male heirs. This was the existing, pre-Islamic system. Islam introduced a second tier by allotting shares to those persons ex- cluded from this system. They were mostly women, like the wife, daughter, or sister of the deceased. These heirs did not share with the other male heirs, however, but were given fixed fractions of the inheritance. These fractions differed per person (daughters had a higher fraction than the widow, for instance), but could also differ depending on the composition of the family (when there are many daughters, they need to divide their fraction among themselves and may individually have less than the widow). Moreover, these fixed fractions are specifically mentioned in the Qurʾān and conse- quently enjoy an untouchable status in Islamic law.
In the case of Molla Sali we are therefore confronted with the rather unique situation of an inheritance case involving only
29 Islamic inheritance law is very structured and mathematical, but extreme- ly complex. See the seminal work by N.J. Coulson, Succession in the Muslim Fam- ily (1971).
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female heirs who, consequently, are each entitled to a so-called “Qurʾānic fraction” (farīd qurʾanīya). In this case, Islamic law is spe- cific in the legal fractions allotted to these women: one-fourth for the widow, and three-fourths for the sisters (to be divided among them).30 It is this particular case that the Court used for its com- parison with civil law. The Court held that the widow would be deprived of three-fourths of the inheritance if Islamic inheritance law were applied. She is therefore better off under civil law. That is true in this particular case. But would the Court have decided differently if the widow would have been better off under Islam- ic law? One can imagine a situation where the widow inherits less under civil law than under Islamic inheritance law.31 One can also imagine a situation where the presence of other family members had left the widow with a higher share under Islamic law than she would have received under civil law.32 In these cases, the logic of the Court would dictate that, as a matter of non-discrimination, Islamic law should be upheld, because that would be more beneficial to the widow than civil law. This brings an element of arbitrariness in the Court’s reasoning, as the measuring stick for comparison ap- plied here by the Court is—albeit unwittingly—not fair and equal treatment, but the best interests of the party in question, in this case the widow.
The Court’s assessment of non-discrimination also over- looks another consequence: it denies the legal rights of other par- ties, in this case the sisters-in-law. The Court correctly states that by applying Islamic inheritance law the widow only receives one-fourth and is deprived of the remaining three-fourths of the inheritance
30 There are no English-language tables for these calculations. A website that is helpful (but should not be considered conclusive) is Islamic Inheritance Cal- culator, http://www.inheritancecalculator.net [https://perma.cc/TFY5-F3AQ].
31 For instance, in the situation that the husband, in accordance with civil law, had bequeathed most (or all, if permissible by law) of his estate to his children or a foundation, and the wife were left with a legal share that would be less than the legal one-fourth to which she would have been entitled if Islamic law were applied.
32 For instance, in the case of male heirs like sons and a father-in-law, the Qurʾānic share of the widow would then be reduced to one-eighth, but if she had more than six sons (or four sons and four daughters), this share would then be higher than what she would receive under civil law.
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that she would otherwise receive under civil law. But the same ar- gument applies vice versa to the sisters-in-law: if Islamic inheritance law is not applied, the two sisters are equally deprived of their in- testate share under Islamic inheritance law, which is three-fourths of their brother’s estate. Either way, one of the parties is deprived of part of the inheritance, and hence put in a position that may be considered discriminatory. One may, of course, argue that the wife and the sisters of the deceased do not enjoy the same status as heirs. But this is the position that most modern European inheritance laws might take. In Islamic family law, we have seen, both the wife and the sisters of the deceased are equally entitled to legally fixed fractions of the inheritance.
In short, by comparing the position of the widow in civil and Islamic inheritance law, the Court compared apples to oranges. Moreover, in doing so, the Court did not make an absolute assess- ment, but a relative one based on an incidental and particular situ- ation. As a result, the Court had made a consideration not based on non-discrimination, but on the litigant’s best interests.
b. Interpersonal Law
The Court’s inconsistencies in comparing the two legal sys- tems can possibly be explained by its unfamiliarity with the system of interpersonal law. In Greece, both civil family law and Islamic fam- ily law are considered Greek domestic law. We have seen that such a system is called interpersonal law, which allows for the coexistence of more laws that all deal with the same subject matter, but apply to different communities. In some countries with this legal system, one is bound by the law of one’s ethnicity or religion; in other countries, one can also opt out of this community law by choosing the alterna- tive of civil law. Regardless of which framework is chosen, the system of interpersonal law presumes equal status of all coexisting laws, however different they may be, and however one law may be consid- ered discriminatory or otherwise wrong in the eyes of another law.
Greece has inherited the system of interpersonal law that prevailed in the Ottoman Empire, and which was based on the Islam-
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ic perspective on freedom of religion: religious communities have the freedom to live in accordance to the rules of their religion, and these include the rules of family life.33 This explains the indignation of the Syrian lawyer when she learned that most European countries do not allow for such legal plurality. She failed to understand the radically different perspective of the European legal systems where the notion of equality prevails. This equality demands a mono- legal approach: that is, a single law that applies to all. Comparing these two systems is therefore like looking in the mirror: where one system focuses on equality and hence tends to eradicate differences, the other system embraces the differences and hence avoids mak- ing comparisons. By using the principle of non-discrimination, the Court has applied a mono-legal approach to a plural-legal system.
The Court is aware of the existence of an interpersonal law system in the Greek case. In the words of the Court, a state “may feel required as a matter of freedom of religion to create a particular legal framework in order to grant religious communities a special status entailing specific privileges.”34 However, the Court continues, in such a case the state must ensure “that the criteria established for a group’s entitlement to it are applied in a non-discriminatory manner.”35 Here, the Court is not entirely clear what it means by “cri- teria.” Are they the criteria under which the system operates? If so, then non-discrimination would mean that individuals have the free- dom to make use of such laws or not. The Court is quite adamant that such choice of law should exist.36 However, as we have seen above, the Court also seems to base the non-discriminatory criteria on the comparative outcome of various laws within that system.
Regardless of what non-discrimination principle or crite- ria the Court refers to, it is of little use in the context of an inter-
33 Maurits S. Berger, Secularizing Interreligious Law in Egypt, 12 Islamic L. & Soc’y 394 (2005) (with reference to primary Islamic law sources). See general- ly Antoine Fattal, Le statut légal des non-musulmans en pays d’Islam (1958); Wähler, supra note 7.
34 Molla Sali, supra note 1, ¶ 155. 35 Id. 36 Id. ¶ 157.
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personal system, because the raison d’être of such a system is the coexistence of various family laws that are by definition different from each other and hence mutually discriminatory. Assessing any possible discrimination within the Greek legal system of in- terpersonal law, as the Court does, will therefore by default lead to ascertaining such discrimination.
c. Human Rights and Islamic Law
In its ruling, the Court has in several instances indicated that “Sharia law” is discriminatory within the community to which it applies.37 In the case of family law, that is a correct observation: Islamic family and inheritance law discriminates on the basis of gender and religion. To name just a few examples: men and wom- en have different marital rights and duties; women have fewer, if any, rights to divorce; non-Muslim men are not allowed to marry Muslim women; Muslims and non-Muslims cannot inherit from each other. But this being true, it has no relevance for the case at hand. The discrimination to which the widow referred was not based on gender or religion (both parties involved are female and Muslim).
Nonetheless, even though this discussion is not pertinent to the case at hand, it plays an important role in the background of it, because the discriminatory nature of several rules of Islamic family and inheritance law poses a problem for Greece because it considers these rules domestic law. Greece is a signatory to the 1950 European Convention on Human Rights, and the cohabita- tion of opposing legal systems poses a challenge to Greece’s obli- gations under the Convention, to put it mildly.
Among the signatories to the European Convention on Human Rights, it would be inconceivable to apply laws with a discriminatory character. But that is exactly the case with the ap- plication of Islamic family law in the Greek province of Western Thrace. For that reason, it is confusing that the Court discusses the
37 See, e.g., id. ¶¶ 145, 153, 154, and 158.
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Greek case together with “the application of Sharia law in England and Wales.”38 Confusing, because there Islamic law is not applied as a matter of state law, as is the case in Greece. In England and Wales, as in many other European countries, rules of Islamic fam- ily law are applied on a voluntary basis among Muslims, just as Catholics, Protestants, and Jews are doing with their own religious family laws.39 Such application has no standing in the court of law of the relevant country. All citizens enjoy the same protection of the national law, which is governed by human rights values. How- ever, under that rule of law they are free to apply any religious rule of their choosing, even in instances where such a rule would contravene human rights. The gender differences in marital duties and divorce rights, for instance, are typical of most religious fam- ily laws. People are allowed to live in accordance with these dis- criminatory regulations, and many orthodox communities do so, although in several Western European countries there is increas- ing political and judicial pressure to contain the excesses thereof in Muslim communities.40
The Greek situation is different, however, as Islamic fami- ly law there is not a community practice but domestic law, which makes the case of Greece unique in Europe. It is understandable, therefore, that much discussion is going on with respect to this particular situation regarding how to reconcile the existence of a law that is discriminatory among its believers with the existence of human rights that apply to all citizens. Two solutions seem to present themselves. The first is to modify the religious law in such a way that it conforms to the basic tenets of human rights. In the
38 Id. ¶ 83. 39 Compared to the literature on Islamic law in Europe, the practice and le-
gal status of other religious courts and laws in Europe are little studied. For a general overview, see Norman Doe, Law and Religion in Europe: A Comparative Intro- duction (2011), especially ch. 4, The Legal Position of Religious Organizations.
40 The most consistent and persistent in this regard is the British government. Mona Siddiqui et al., The Independent Review into the Application of Sharia Law in England and Wales, UK Parliament (Feb. 2018), https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/678478/6.4152_ HO_CPFG_Report_into_Sharia_Law_in_the_UK_WEB.pdf [https://perma.cc/ UL2U-4T6S].
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The Last Sharīʿa Court in Europe
Muslim world, this is a well-known discussion with proponents suggesting that such conciliation is possible while others argue the contrary.41 Such discussions are hardly taking place in Greece at the moment.42
The second solution is to make this religious law optional, which seems to be the road taken by the Greek legislature and the Court. But even then, the case in the Canadian province of Ontar- io in 2004 and the ongoing discussions in England show that the freedom to choose does not always mean that this option is freely enjoyed: peer pressure and social coercion within the communi- ties often prove stronger than the individual strength to choose for one’s own good.43
d. The Term “Sharia Law”
A comment is needed about the Court’s use of the term “Sharia law” when it discusses the Greek case. Elsewhere I have discussed the disadvantages of this term.44 First, because for many it alludes to violent and oppressive practices by the likes of Boko Haram, ISIS, or the Taliban while sharīʿa also refers to less contro- versial legal rules like contract, ownership, use of land and water,
41 There is ample literature on this. Examples are Jasser Auda, Maqasid Al-Shariah as Philosophy of Islamic Law: A Systems Approach (2007); Abdul- lahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Hu- man Rights and International Law (1990); Amina Wadud, Qurʾan and Wom- an: Rereading the Sacred Text from a Woman’s Perspective (1999); Khaled Abou El Fadl, The Human Rights Commitment in Modern Islam, in Human Rights and Responsibilities in the World Religions (Joseph Runzo, Nancy M. Martin & Arvind Sharma eds., 2003); CEDAW and Muslim Family Laws: In Search of Common Ground, Musawah 26 (2011), http://www.musawah.org/wp-content/uploads/2018/11/ CEDAW-MuslimFamilyLaws_En.pdf [https://perma.cc/7UAT-4JVM].
42 Although I know from personal conversations with Greek jurists and government officials that such thinking is taking place on an informal level.
43 For Ontario, see the report by the Attorney General and the Minister Responsible for Women’s Issues, Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, Ministry of the Attorney General (Dec. 2004), https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/execu- tivesummary.html [https://perma.cc/89XF-33T8]. For England and Wales, see Sid- diqui et al., supra note 40, at 3, 12, 21.
44 Maurits S. Berger, Understanding Sharia in the West, 6 J.L. Religion & St. 236 (2018).
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and religious rituals. Second, it is an umbrella term that refers to both practices in the current era as well as classical legal scholar- ship from centuries ago. Third, the term is often used by oppos- ing factions: both the Muslim democrats and the anti-democrats base their arguments on sharīʿa, just like those with conservative and oppressive visions of the role of women and those who are staunch feminists. Finally, the term encompasses many domains of rules, ranging from civil law to penal law, from finance to social conduct, from religious rituals to the conduct of the state. In other words, the term “Sharia law” has little meaning if it is not quali- fied. And that is precisely what the Court neglects to do.
This is not the first time that the Court omits juridical pre- cision in Islamic law cases when it is needed. In the case law of the Court, the term “Sharia law” even obtained a more pejorative meaning when in 2003 the Court ruled that “sharia clearly diverg- es from [the European] Convention [on Human Rights] values.”45 Given the fact that sharīʿa has so many meanings and interpreta- tions, this seems quite careless of the Court. Indeed, if we realize that sharīʿa also includes rules pertaining to prayer, fasting, mar- riage, and burial, it seems unlikely that the Court considered these contrary to European human rights values.46
It would have done the Court credit if it had been more precise in its choice of words. In the case of Molla Sali, wording like “Islamic family law” or “the Islamic inheritance law applicable in Western Thrace” would have been much more specific than the generic term “Sharia law.”
e. Choice of Law
45 Refah v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98, and 41344/98, Eur. Ct. H.R. (2003), http://hudoc.echr.coe.int/eng?i=001-60936 [https://perma. cc/AYW7-82JP].
46 I argued this in my article (in Dutch), Tien jaar later: kritische beschou- wingen bij de visie van het Europees Hof op de sharia, 3 Tijdschrift voor Religie, Recht en Beleid 69 (2013); I summarized it in English in Berger, supra note 44, at 237.
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The Last Sharīʿa Court in Europe
The legal detours, terminology, and arguments of the Court, as discussed above, are puzzling when we come to the end of the ruling where the Court in a very clear and lucid manner makes its case for a choice of law in an interpersonal legal sys- tem. The Court argues that the treaties, to which the Greek Court of Cassation holds itself bound, are misinterpreted as there is no requirement by the Greek state to apply “Sharia law.” The Court rejects the Greek Court of Cassation’s argument that it is treaty- bound to have this law applied to the Muslim minority in Western Thrace.
I am not in a position to assess these arguments as they pertain to the field of international law, in which I hold no exper- tise. However, assuming this argument is correct, then its logical consequence is that Greek citizens should have the freedom to opt for one of the applicable laws. This is also the Court’s conclusion. The Court further argues that this freedom should allow the mi- nority members the right to opt in as well as the right to opt out. In other words, they must have the freedom to equally choose for the application of Islamic family or inheritance law, as they may choose for non-applicability.47
This statement is legally clear and precise, and actually makes all the Court’s earlier deliberations redundant.
Conclusion
In this case, the European Court of Human Rights over- turned the standard case law of the Greek Court of Cassation that Islamic family and inheritance law was obligatory for Muslims in Western Thrace who had opted for an Islamic marriage: such an obligation does not exist, the European Court held, because as long as a domestic law recognizes more than one family law, peo- ple should have the right of choice. The Court based this right of choice on the principle of non-discrimination.
47 Id. For a similar argument, see Dominic McGoldrick, Accommodating Muslims in Europe: From Adopting Sharia Law to Religiously Based Opt Outs from Generally Applicable Laws, 9 Hum. Rts. L. Rev. 603 (2009).
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This ruling is not so significant, as Greek case law was already moving in this direction, and the Greek legislature had put it into law shortly before the ruling was issued. What may be considered significant, however, is that the case involved two le- gal features that are relatively unknown among European jurists: interpersonal law and Islamic law. These are two systems of law with their own internal logic and coherence. Within the systems of European civil and common law, particularly in the framework of human rights, the ruling gave a glimpse of the resulting clash of legal cultures.
Two points can be highlighted in this respect. The first is that the Court’s application of the non-discrimination principle was not as consequential as it could have been. This had to do with the unique nature of the legal system of interpersonal law at hand, in which the coexisting family laws are by default mutual- ly discriminatory. Ascertaining the possible discrimination of the applicant by comparing her position as a Muslim widow with that of a non-Muslim widow was therefore not a neutral comparison because the outcome would by definition be different, and hence discriminatory.
Another significant feature of this ruling is that it has to do with Islamic law, specifically Islamic family and inheritance law, which is considered domestic law in Greece. This law contains discriminatory rules on the basis of gender and religion, and as such is controversial in the context of human rights. However, in this particular case, these discriminatory rules were not relevant as both opposing parties were female and Muslim, and the main legal question at hand was that of choice of law. By still referring now and again to the discriminatory nature of Islamic family law (and thereby consistently using the ominous term “Sharia law”), the Court showed its lack of insight into and comprehension of this particular law.
29
Muslims in American Prisons: Advancing the Rule of Law through Litigation Praxis
SpearIt University of Pittsburgh School of Law
Abstract Islamic ideas about justice and equality directly informed the development of prison law jurisprudence in the United States. Since the early 1960s, when federal courts began to hear claims by state prisoner-petitioners, Muslims began to look to courts to establish Islam in prison and inaugurated an on- going campaign for civil rights. The trend is significant when considering Muslims represent a relatively small percentage of the American population. Decades of persistent litigation by Muslims in courts have been integral to developing the prisoners’ rights movement in America. The Muslim impact on prison law and culture is an underappreciated phenomenon that involves African-American Muslims, the criminal justice system, and a spiritual quest for justice and equality. This Essay explores how Islamic ideals contributed to the litigation and how mundane lawsuits were transformed into an ex- pression of genuine religiosity which, in turn, helped create new rules and policies that expanded the law’s presence in prison. By appropriating courts in this way, Muslims emerged as staunch upholders of the rule of law. These lawsuits also unveiled a role-reversal between the guards and the guarded, since the prison staff and administration, entrusted to act lawfully, must be held accountable for violating institutional rules and even criminal law. Far from being antagonistic to American law, Muslims have not stopped attempt- ing to ensure the rule of law prevails in prison.
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i. inTroduCTion To muslim prison liTiGATion
Muslims informed developments of the civil rights move- ments in mid-twentieth century America and catalyzed
profound improvements in prison conditions. Since the early 1960s, when federal courts began to hear claims by state pris- oner-petitioners, Muslims began looking to courts to establish Islam in prison and inaugurated a campaign to further religious rights for themselves and civil rights for all people in prison. As a civil rights leader who was deeply invested in the struggle to bring rights to people in prison, Malcolm X embodied both dimensions. The trend is significant considering that prior to this time, a person punished for crime was understood to have un- dergone a “civil death,” which meant practically that a person’s crime forfeited many basic rights and protections bestowed on civilians.1 Courts’ allegiance to a “hands-off” philosophy pre- vented them from intervening in government punishment prac- tices. Rights were scarce for those under lock and key, which evolved from times when people serving sentences were sim- ply deemed “slaves of the state.”2 Through litigation, Muslims helped transform prison life from these bleaker times, when the rule of law was at its weakest.
When litigation started gaining traction in the early 1960s, few prison systems recognized Muslims as followers of a legitimate religion. Establishing Islam itself therefore became the first struggle for Muslim prisoners to overcome. Correction officials deemed Muslims as suspicious, untrustworthy, and problematic.3 Some of the suspicion was likely rooted in the fact that many who identified as Muslims had spent time in pris- on for refusing the draft in a war they believed was unjust, in- cluding Malcom X’s mentor and leader of the Nation of Islam (NOI), Elijah Muhammad. Moreover, the political orientation
1 See, e.g., Gabriel J. Chin, The New Civil Death: Rethinking Punish- ment in the Era of Mass Conviction, 160 u. Pa. l. rev. 1789 (2012).
2 Ruffin v. Commonwealth, 62 Va. 790, 796. 3 Cal. Dep’t of Corrections, Ad. Bull. No. 58/16, Feb. 25, 1958, at 1
(“The presence in our institutions of a small group of inmates who adhere to quasi-re- ligious doctrines referred to as ‘Muslem,’ or who are members of the nation organiza- tion ‘Nation of Islam,’ has presented a management problem”).
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Muslims in American Prisons
of Muhammad’s group cast Muslims as suspect, subversive, or at the very least, un-American.4 As a result of these negative associations and as cases discussed in this essay show, prison officials harbored Islamophobic attitudes that burdened Mus- lims in prison with additional surveillance, eavesdropping, ma- nipulation, and extra-legal punishments, often catalyzed by an individual simply proclaiming to be Muslim.5 Muslim prison- ers’ discontent at their treatment eventually grew into resistance, which in turn became a justification for further discrimination, thus creating a vicious cycle.
The decades preceding this unfortunate era of correc- tions laid the foundation for the phenomenon of Muslim prison litigation and the prisoners’ rights movement more broadly.6 The subjection of Muslims to harsh treatment became the grounds from which they launched both coordinated and uncoordinated litigation to resist their treatment and confinement conditions. As a result, Muslims went on to win cases furthering religious freedom in prison. They would litigate an array of issues, includ- ing the use of solitary confinement, the right to health care, and the right to exercise other First Amendment entitlements.7
Scholars describe the impact of Muslim litigation in no uncertain terms. The litigation has been described as a “cor- rectional law revolution, and the beginning of an evolving concern of the courts in correctional matters.”8 According to Felecia Dix-Richardson and Billy R. Close, “some researchers
4 See Zoe Colley, “All America is a Prison”: The Nation of Islam and the Politicization of African American Prisoners, 48 J. am. sTds. 393 (2014) (describ- ing perceptions that the NOI harbored pro-Japanese sentiment).
5 See, e.g., William Bennett Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners’ Rights Litigation, 23 sTan. l. rev. 473, 484 (1971).
6 The phrase “Muslim prison litigation” as used in this piece does not in- tend to paint a monolithic picture of Islam nor portray the litigation as a unified move- ment. Rather, the term refers to the body of lawsuits and court opinions involving Muslim petitioners suing for prison rights (as opposed to trying to undo a conviction or punishment). “Muslim” in this piece follows Edward W. Curtis’s lead and refers to a person who self-identifies as Muslim or as a follower of Islam, see edward w. cur- TIs, Black muslIm relIGIon In The naTIon of Islam, 1960–1975, 10 (2006).
7 See generally Christopher Smith, Black Muslims and the Development of Prisoners’ Rights, 24 J. Black sTud. 131 (1993).
8 Clair A. Cripe, ProceedInGs of The 106Th annual conGress of cor- recTIons, denver, auGusT 22–26, 1976, 25 (1977).
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Journal of Islamic Law | Special Issue 2022
have credited the legal battles as the catalyst for creating recog- nized diversity within the inmate social system and changing the structure of the prison system.”9 “In fact,” Kathleen Moore notes, “the area of law to which Muslims have made their most substantial contribution to date is the area of prisoners’ rights litigation.”10 While litigants from various Muslim denomina- tions comprised only a tiny minority of the prison population in the 1960s, they made significant and lasting imprints when it came to litigation.
Several markers and metrics offer a dramatic indication of the magnitude of this phenomenon. Perhaps most signifi- cantly, Cooper v. Pate is widely viewed as the case that opened the federal courts to people in prison, which became the water- shed moment of judicial pushback to a hands-off philosophy.11 Accordingly, this case and others “began the process through which the Muslims’ litigation would develop a legal legacy of enhanced, albeit limited, constitutional protections for all pris- oners.”12 In time, lawsuits by Muslims that actively shaped pris- on law burgeoned. This trend continued in the new millenni- um. The U.S. Commission on Civil Rights noted that between 2005 and 2007, the largest percentage of complaints that it received were from Muslims, accounting for over 26% of all complaints.13 Also, between 2001 and 2006, Muslims were the most common plaintiffs bringing forth Religious Land Use and Institutionalized Persons Act (RLUIPA) claims, accounting for approximately 30% of all claims.14 These results are even more striking when compared to the percentage of Muslims in soci- ety. For example, at about this same time, Muslims accounted
9 Felecia Dix-Richardson and Billy R. Close, Intersections of Race, Re- ligion, and Inmate Culture: The Historical Development of Islam in American Cor- rections, in relIGIon, The communITy, and The rehaBIlITaTIon of crImInal offenders 87, 97 (Thomas P. O’Connor ed., 2002).
10 Kathleen Moore, The Case for Muslim Constitutional Interpretive Ac- tivity, 7 am. J. IslamIc soc. scI. 69, 69 (1990).
11 Cooper v. Pate, 378 U.S. 546 (1964) (holding that the lower court erro- neously dismissed prisoner-petitioner’s claim, which stated a viable cause of action).
12 Smith, Black , supra note art3-7. 13 u.s. comm’n on cIvIl rTs, enforcInG relIGIous freedom In PrIson
26 (2008). 14 Id. at 81–82.
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Muslims in American Prisons
for about 0.6 percent of adults nationally, yet represented nine percent of the federal prison population.15 The figures demon- strate the disproportionate levels of Muslim involvement in liti- gation compared to their numbers in prison. The decades of per- sistent litigation by Muslims have been recognized as central to America’s prisoners’ rights movement, from its fledgling years up to the present.16
Such figures and commentary offer a sense of the scale of litigation, but less understood is how religious values influ- enced litigation. In the earliest lawsuits, NOI converts were the dominant force in creating space for Islam in prisons. Most early claims were made by adherents of this group, along with others who were collectively labeled “Black Muslims.”17 The NOI sit- uated justice and equality at the center of its mission, but, most pointedly, “Justice for the Black Man.”18 Leaders of NOI treated justice and equality as inherently Islamic principles that Mus- lims had a duty to fulfill. This orientation framed lawsuits as no- ble and sublime—they were expressions of faith. In these early years, the face of a Muslim in court was almost always Black. However, in the post-9/11 era this face has been changing. Mus- lim litigants are more diverse in terms of both race and religious denomination, particularly as Sunnī, Shīʿī, and other adherents have increasingly brought claims in court and have connected their actions to religious belief.
This essay theorizes Muslim prison litigation as religious praxis. It is a story that involves African-American Muslims, prisons, and a spiritual quest for justice. The Essay attempts to show that some Muslims engage in litigation while in prison not simply to obtain a desired legal outcome, but because there is spiritual merit in doing so. The litigation efforts demonstrate that religiosity can manifest in uncanny ways, including bringing an action in court. Although many view litigation as a secular af- fair, this essay posits that sometimes the exact opposite is true.
15 Id. at 13. 16 See, e.g., GarreT felBer, Those who know don’T say (2020). 17 Turner, Establishing, supra note art3-5. 18 For examples see Khuram Hussain, “Muhammad Speaks” for Free-
dom, Justice, and Equality, JsTor daIly, May 13, 2021, http://daily.jstor.org/ occ-reveal-digital-muhammad-speaks/.
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Journal of Islamic Law | Special Issue 2022
Muslims have understood activism to be an expression of Mus- lim identity in numerous contexts.19 This work points to prison litigation as one such context, where ideology and activism fuse together to create novel forms of religiosity. What follows is the first work of its kind that examines the religious influences on litigation and the implications for the rule of law.20
The focus on religion may help explain why Muslims are the most litigious religious group behind bars. Still, such framing is not intended to overlook the plausible claim that Muslims, in general, are subject to worse treatment than oth- ers in prison. If Muslims are indeed being treated this way, it would seem logical that they would generate more complaints. As the cases detail, anti-Islamic attitudes by prison staff and ad- ministration translated into a myriad of unfair, and sometimes brutal, treatments. Given that the very first step in getting a case to court involves exhausting prison remedies, potential lit- igants are left in the unsavory position of formally complaining against their day-to-day overseers. Although overseers are en- trusted with ensuring the safety of wards and helping them lead law-abiding lives—to adhere to the rule of law—this role is oc- casionally lost in a world where some sit above the law. Hence, Muslims, as one scholar writes, “have been largely responsible for establishing prisoners’ constitutional rights to worship.”21 Moreover, since prison officials perceive “the close unity of Muslims” under their authority as a threat thereto, “officials in most prisons, at one time or another, have banned the practice of Islam or imposed tight restrictions on Muslims but not on other religious denominations.”22
19 See, e.g., Iman AbdoulKarim, The Role of Gender and Religion in Muslim Women’s BLM Activism, in race, relIGIon, and Black lIves maTTer (Chris- topher Cameron & Phillip Luke Sinitiere eds., 2021) (examining Muslim activism as a religious obligation).
20 The rule of law is a political concept understood to be the guiding legal principle in Western democratic societies. Under this ideology, society is organized according to the law’s supremacy. Perhaps the simplest and foremost descriptions of this concept are the maxims that characterize the rule, including that it is diametrically opposed to the “rule of men,” indicating the primacy of law. There is also a principle of equality in the rule that assures “no one is above the law” and guarantees the right of getting one’s “day in court.”
21 Turner, Establishing, supra note art3-5. 22 Id.
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Muslims in American Prisons
ii. priSonS—ExCEption to thE rulE
Verbal formulas and judicially created obstacles that prevent the reaching of the merits of a complaint except in “exceptional circumstances” make a sham of “equal justice under law” and permit the suppression of an unpopular minority at the hands of arbitrary officials. By claiming that the actions of prison officials may not be reviewed, the courts may give these officials a status above the law.23
In the United States, prisons represent the fringe of institutions where the ideals enshrined in the rule of law exist in a diminished capacity, and sometimes in suspension altogether. Whether it be the cherished ideal of “getting one’s day in court” or that nobody “is above the law,” these and related principles are sorely lacking in the prison context, where people are at their most vulnera- ble and the state holds a near-monopoly of power. They live an invisible existence under the law. As Mumia Abu-Jamal wrote during his time on Death Row, “Words like ‘justice,’ ‘freedom,’ ‘civil rights,’ and yes ‘crime,’ have different and elastic mean- ings depending on whose rights were violated . . . . For those . . . who wear the label prisoner around their necks, there is no law, there is no justice, there are no rights.”24 This section details the awesome, nearly inscrutable power prison officials wield over those they ward, and demonstrates that prisons are an unfortu- nate exception to the rule of law. In demonstrating this point, this section also introduces the reader to the type of treatment and conditions of confinement that triggered litigation.
The prison’s exceptionalism likely has something to do with demographics of the incarcerated. Black Muslims in prison face double discrimination due to the intersectional identity of their religion and their race. American history abundantly shows that Blacks have always been associated with sin, criminality,
23 Comment, Suits by Black Muslim Prisoners to Enforce Religious Rights—Obstacles to a Hearingon the Merits, 20 ruTGers l. rev. 528, 570 (1966).
24 mumIa aBu-Jamal, all ThInGs censored 58 (Noelle Hanrahan, ed., 1995). Emphasis in original.
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Journal of Islamic Law | Special Issue 2022
and expendability. Likewise, from the 1960s to the turn of the millennium, American courts have harbored unfavorable views about Muslims, which were magnified after the attacks of 9/11.25 This combination of animus against Islam and Blackness has created an alterity regarded as unworthy of the law’s protection. Under such pretenses, officials who act with impunity and inten- tionally disobey the law can make life in prison far more painful than a mere prison sentence.
a. Treatment By Staff and Conditions of Confinement
Mistreatment of Muslims in prison can be analyzed along two primary divisions. One is the affirmative conduct by prison officials—whether through direct conduct or indirect pol- icies, rules, and regulations—that worsen an individual’s exis- tence behind bars. The other is the absence of action—whether through failure to carry out their legal responsibilities, or worse, outright disregard of the mistreatment of the wards—by both staff and fellow-wards.26 The acts and omissions of prison staff can create an oppressive mix of domination and subjugation, where staff engage in abusive and repressive treatment of those they have been entrusted to care for or rehabilitate. This dual aspect of staff conduct is the foundation for understanding litiga- tion efforts, since both forms of mistreatment became the basis for complaints and grievances that would spawn court action.
The Cooper v. Pate case is one of the earliest and most illustrious examples of how staff treatment and confinement conditions could create a desperate situation for Muslims.27 In this case, the plaintiff, Cooper, who followed the NOI, was sent to solitary confinement and given other penalties for claiming
25 Marie A. Failinger, Islam in the Mind of American State Courts: 1960 to 2001, 28 s. cal. rev. l. soc. JusT. 21 (2019).
26 Hearns v. Terhune, No. 02-56302, 2005 U.S. App. Lexis 13034 (9th Cir. 2005) (Muslim alleged adequately that prison officials knew of a threat to him from other Muslims in prison).
27 Other cases were precursors to the Cooper decision, which laid the groundwork for that decision, e.g., Pierce v. La Vallee, 293 F.2d 233 (2nd Cir. 1961); In Re Furguson, 55 Cal. 2d 663 (1961); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962).
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Muslims in American Prisons
to be a Muslim. In solitary, he was alone nearly constantly, with a blanket and a ration of one meal a day. He could shower and shave once a week and was allowed a half-hour of exercise daily in a small pen.28 Writing in 1967, the Court of Appeals of the Seventh Circuit seemed shocked at his duration in solitary— which stood at over a decade—and emphasized that “Cooper’s stay in segregation is almost of record length.”29
Cooper foreshadowed issues that would occupy courts’ attention for the next several decades, including punishment practices and restrictions on religious rights. For example, in ad- dition to being punished for claiming to be Muslim, Cooper and his fellow adherents were denied the ability to access religious materials including the Qurʾān, to communicate with other NOI followers, to visit with ministers of their faith, and to attend re- ligious services.30 Moreover, Cooper says that Muslims were viewed unfavorably by the administration, which in turn result- ed in special discriminatory treatment. More than anything, the case demonstrated how extra-legal punishment could intersect with forms of religious and racial repression to cause more dam- age than the marginalization of religious rights.
Litigation after Cooper would uncover and challenge different manifestations of the same issues Cooper dealt with in the 1960s. Muslims would continue to challenge solitary confinement,31 newly-created Communication Management Units,32 use of force,33 and restrictions on access to courts and
28 Toussaint Losier, “. . . For Strictly Religious Reason[s]”: Cooper v. Pate and the Origins of the Prisoners’ Rights Movement, 15 Souls 19, 28 (2013).
29 Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967). 30 Cooper v. Pate, 378 U.S. 546 (1964). 31 Perhaps no individual was as important as Martin Sostre when it came
to advocating against the use of solitary confinement. Sostre was a paramount jail- house lawyer who was involved in several lawsuits as a plaintiff, and himself spent time in solitary unlawfully; see, e.g., Aliym v. Miles, 679 F.Supp. 1 (W.D. N.Y. 1988) (Muslim confined to Security Housing Unit for discipline may be denied right to at- tend religious services).
32 Lindh v. Warden, No. 2:09-CV-00215-JMS-MJD, 2013 WL 139699 (S.D. Ind. Jan 11, 2013).
33 Arroyo Lopez v. Nuttall, 25 F.Supp.2d 407 (S.D.N.Y. 1998) (freedom of religion violated when office shoved petitioner from behind during prayer); Hill v. Blum, 916 F.Supp. 470 (E.D. Pa. 1996) (squeezing of inmate’s testicles during pat search not an unreasonable search, cruel and unusual punishment, or religious viola- tion).
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Journal of Islamic Law | Special Issue 2022
libraries. Other grievances focused on the day-to-day manage- ment of the institution, including issues related to adequate nu- trition, medical care, visitors, canteen, work detail, recreation, and programming.34 More recent issues center on the right to wear the headscarf veil (hijab) in female jails and prisons,35 religious practices,36 observance of Ramadan,37 religious par- aphernalia,38 worship space,39 dress40 and grooming,41 religious literature,42 and access to religious leaders and services.43 These and other issues offer a glimpse into the legal uncertainties in prison, and the range of issues over which prison officials exercise control.
Sometimes officials force Muslims to endure hardships because of religious bias. Previous ethnographic research, in- cluding testimony from currently and formerly incarcerated in- dividuals, describes guards ridiculing Muslims by calling them “Mohammad” or “Al-Qaeda,” referring to traditional clothing
34 See, e.g., Holly Fournier and Jennifer Chambers, CAIR-MI Settles Suit against MDOC over Ramadan Meals, The deTroIT news, Jan. 11, 2017, http://www. detroitnews.com/story/news/local/michigan/2017/01/11/cair-mi-settles-suit-against- mdoc-over-ramadan-meals/96447748/.
35 CAIR-Michigan Announces Federal Civil Rights Lawsuit Against City of Detroit, Michigan Department of Corrections for Woman Who Had Hijab Forcibly Removed for Booking Photo, cair, Oct. 6, 2020, http://www.cair.com/ press_releases/cair-michigan-announces-federal-civil-rights-lawsuit-against-city-of- detroit-michigan-department-of-corrections-for-woman-who-had-hijab-forcibly-re- moved-for-booking-photo/.
36 McEachin v. McGuinnis, 357 F.3d 197 (2nd Cir. 2004) (No. 02-0117) (punishment of Muslim for failing to respond to official’s order until he completed his prayers is a violation if the order intended to interfere with the free exercise of reli- gion).
37 Henderson v. Muniz, 196 F. Supp. 3d 1092 (N.D.Cal. 2016). 38 Hammons v. Saffle, 348 F.3d 1250 (10th Cir. 2003) (No. 02-5009) (re-
fusal to allow prayer oils is rationally related to a legitimate interest in deterring drug use and gang activity).
39 Orafan v. Goord, 411 F. Supp. 2d 153 (N.D.N.Y. 2006) (No. 00-CV- 2022) (no violation of Shīʿī Muslims’ rights by the availability of only Sunnī services at the prison).
40 Abdullah v. Frank, No. 04C1181, 2007 U.S. Dist. LEXIS 13215 (E.D. Wisc. 2007).
41 Holt v. Hobbs, 574 U.S. 352 (2015). 42 Roddy v. Banks, 124 Fed. Appx. 469 (8th Cir. 2005) (No. 03-3735)
(Nation of Islam member made out a valid free exercise claim by the prison to allow him religious books).
43 O’Lone v. Estate of Shabazz, 42 U.S. 342 (1987).
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Muslims in American Prisons
as “nightgowns,” and repeatedly confiscating worship items, in- cluding incense, oils, beads, and foodstuffs.44
Retaliation by prison staff is one of the more unfortu- nate and recurring grievances in prison. Sometimes retaliation occurs when an individual files a complaint against a specific prison policy or staff member.45 In other instances, complaints of retaliation come from individuals who have cases pending in court. In both instances, the person is subject to extra-legal punishment for following the prison’s protocol about filing grievances. Retaliatory actions can include searching one’s prison cell without cause, which is essentially a license to ran- sack a cell. In addition, confiscations are common, as are threats against individuals. In one case, an individual claimed he had personal belongings confiscated from his cell for filing a com- plaint that stated officers filed false charges against him.46 The court sided with the Muslim petitioner, after he was able to show enough wrongdoing on behalf of prison staff to proceed with this case. However, this small victory hardly meant that pe- titioner’s long-term living conditions improved. After all, court documents alleged that even other corrections officers warned one official there would be grievances filed against him because of his conduct, to which he replied, “I don’t care about [a] fuck- ing grievance because I kill Muslims.”47
The threat of retaliation thus hangs constantly over Mus- lims, making the phenomenon of Muslim prison litigation even more extraordinary. Being subject to retaliation makes com- plaining or litigating dangerous business and puts the petitioner in harm’s way for trying to hold institutions and officials ac- countable. Perhaps one of the most blatant and harmful means of retaliation is when a prison transfers a ward to a different facility‒defeating litigation efforts and creating untold havoc in that person’s life.
44 See SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy or the Sound of Alarm? 49 Gonz. l. rev. 37 (2014).
45 Wade v. Cal. Dept. of Corrections, 171 Fed.Appx. 601 (9th Cir. 2006) (No. 05-1563).
46 Howard v. Foster, 208 F Supp. 3d 1152 (D. Nev. 2016). 47 Id.
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b. Transfer and Mootness
As the previous section detailed the myriad means of misconduct by prison officials, this part considers how the law bars redress for some of these very harms. One mechanism by which prison officials are shielded from wrongdoing is when prisons transfer a ward out of a facility against which he has a pending legal claim. When a prison enacts such a transfer, it functions as an operative fact that allows courts to moot pending claims against prison officials and policies of the former facility, essentially extinguishing the possibility of redress. This prac- tice merits consideration in the context of Muslim litigation in particular because a significant number of Muslim claims have succumbed to this doctrine, never to get their day in court. In these instances, the rule of law suffers a double violation: one for the initial wrong suffered at the hands of prison officials, and another for the fact that no one is ever brought to justice for it. The fear of transfer is not imaginary, and was noted in the Holt v. Hobbs litigation by the plaintiff Muhammad, who voiced fears of this tactic being used against him:
As part of that injunction, it stated that in my petition— because this is something that’s become a real issue with me there at the penitentiary, at Cummins Unit, that—that the defendants be banned or barred from transferring me to another institution in retaliation for this litigation. It’s a common tactic ADC [the Arkansas Department of Cor- rection] uses to disrupt litigation. You understand what I’m saying?48
Holt was worried because he knew that being transferred from a facility that was the locus of a plaintiff’s allegations neces- sarily moots a claim for declaratory or injunctive relief against officials of that prison regardless of how far the litigation has progressed. As a result of this practice, courts in case after case ignore what officials have done at a prison merely because the
48 Joint Appendix on Writ of Certiorari to the United States Court of Ap- peals for The Eighth Circuit, Holt v. Hobbs, No. 13-6827 (filed Apr. 23, 2014).
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institution has stopped the violative conduct or because the pris- oner-petitioner has been shifted to another facility. This gap in justice is not new, as James Jacobs noted in the 1970s, 15–20 percent of cases “are disposed of by settlement or by mootness,” according to the head of the Prisoner Litigation Bureau of the Attorney General’s office.49
Even without such hurdles, litigating from within prison is not the same as from the outside. Incarcerated people are a particularly vulnerable class, and they are made more so from the ills of this doctrine. They have already faced a unique set of procedural barriers in getting their cases to court in addition to dealing with retaliation and other unfavorable treatment at the hands of administration and staff. Transfer and mootness reduce to nothing all the time, effort, and sacrifice of an individual who, under the hardship of prison, has managed to crack through the bureaucracy and get an audience with a court.50
However, these legal defeats fail to convey the extent of the harm, which includes the transfer itself. An involuntary transfer is a major disruption in a person’s life. At the most basic level, a transfer disrupts day-to-day living, including the ability to continue receiving mail, medication, counseling, and therapy. Such arrangements become compromised when one is forced to pack one’s possessions and vacate one’s assigned living space. The move may prevent visitation from relatives, friends, or other existing support systems and forces the transferee to be- come the new kid on the cellblock all over again with whatever friendships or goodwill that they have established dissipating. For those with other legal matters pending in court, the trans- fer interferes with an array of matters by impeding communi- cation to one’s lawyer, disrupting legal documents and corre- spondences that must follow the transfer, and creating the very
49 James JacoBs, sTaTevIlle: The PenITenTIary In mass socIeTy 117 (1977).
50 The case, Blake v. Ross, 136 S.Ct. 1850 (2016) offers a poignant ex- ample of both. In this case, the prisoner-petitioner suffered injury including nerve damage at the hands of guards, however his civil claim was dismissed by the federal district court because the court found that he did not exhaust the prison protocol. The case eventually went to the Supreme Court, which remanded the case to the district court. While waiting for his case to be decided, he was transferred to another prison, which subsequently mooted his case.
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real possibility of delayed responses, lost possessions, and lost mail, weakening one’s potential for success in court. The situ- ation lends the impression that the transfer sometimes acts as a de facto punishment for filing the lawsuit. The transfer shields prison officials from accountability for their misconduct, and the damage caused by their misconduct is worsened for the indi- vidual now also dealing with the disorientation of being trans- ferred—all for trying to play by the rules.
iii. muslim liTiGiosiTY: seekinG JusTiCe ThrouGh spiriTuAl ACTivism
You asked what motivates me to litigate: Justice and the taking of power from oppressors who seek to destroy Islam by watering it down. Islam enjoins the right and forbids the wrong, so . . . as righteous Muslims we have a duty to resist and disobey. So our form of resistance at the present time is court action.51
When considering the long and ongoing legacy of Muslim pris- on litigation, one might be tempted to say that Muslims sue “religiously.” While such a description may ring metaphoric or tongue-in-cheek, in some cases, it also carries an element of truth. Litigation efforts are not “religious” simply because a Muslim is the petitioner in a lawsuit, but also because there are religious influences at different levels of analysis. On one lev- el, much of the litigation pertains to issues bearing on religion itself, issues that involve religious rights. In these instances, an individual is acting in the cause of Islam. It is likewise true that religious organization has been a powerful influence on litiga- tion efforts; Muslims have pooled resources and orchestrated lawsuits to create room for Islam in prison and freedom to prac- tice as Muslims. There is also evidence that at the individual lev- el, the messages of Islam about justice and equality motivate the decision to litigate and that, for some, engaging in litigation is an expression of religious faith. This section unifies the previous
51 Letter from Abdul Maalik Muhammad, Pet’r in Holt v. Hobbs (2015), (Jan. 16, 2022) (on file with author).
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parts to demonstrate that Muslim prison litigation is not just a matter of Muslims suing in multitudes, but also of an ideology bearing directly on the will to litigate, and ultimately, on the law itself.
The topic of Muslim prison litigation inculcates law and religion in the prison context. As such, there are key takeaways distinct to law and jurisprudence. In addition are those findings specific to the study of religion and the nature of religious prac- tice. Some lessons, however, are not so insular, and instead in- volve complex and dynamic interplays between law and reli- gion, where consideration of one is inextricable from the other. Lastly are those lessons that teach us about our lack of under- standing. Through the study of this phenomenon, we are made aware of gaps in scholarship and research that bear directly on the issues raised in this essay. Such blind spots are lamentable, but now they are known unknowns.
a. Litigation within the Prisoners’ Rights Movement
An overlooked aspect of Muslim prison litigation is how the actions of Muslims reinforce core concepts that define the rule of law. “When prisoners emerge from the shadows to press a constitutional claim, they invoke no alien set of principles drawn from a distant culture. Rather, they speak the language of the charter upon which all of us rely to hold official power accountable.”52 Prisons’ erosion of the rule of law is sometimes an extension of the external world’s erosion of the rule of law for those who are in prison in the first place due to police offi- cers’ subversion of the law (e.g., cases of unlawful deadly force, excessive physical force, tampering with evidence, withholding evidence, or acting in an array of other unlawful ways). Some correctional officers engage in similar subversion of the law that can make prison a lawless place of needless suffering. Mus- lim prison litigation is a saga about trying to make the rule of law more relevant in prison. By working on the recognition of Islam within prisons, Muslims were involved in some of the
52 O’Lone v. Estate of Shabazz, 482 U.S. 342, 355 (1987) (Brennan, J. dissenting).
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first cases that took the notion of civil rights in prison serious- ly, thus cementing Islam’s centrality in the wider prisoners’ rights movement.
James B. Jacobs theorized the impacts of litigation in the prisoners’ rights movement once correctional facilities first came under the scope of federal courts, perhaps the chief of which was to broaden the rule of law’s application in the correc- tional setting. One means was by effecting the bureaucratization of the prison and a new generation of administrators.53 He notes that prior to litigation efforts, prison administrators operated on intuition: “There were no written rules and regulations, and dai- ly operating procedures were passed down from one generation to the next . . . . Early lawsuits revealed the inability of prison officials to justify or even to explain their procedures.”54 How- ever, courts began demanding rational decision-making proce- dures and written policies. The adoption of rules and regulations that restrained officials and the shift in the normative expecta- tions of those incarcerated catalyzed an overhaul of prison sys- tems.. Moreover, Jacobs notes that the movement “expanded the procedural protections available to prisoners.”55 Previously, individuals were not entitled to even the most rudimentary pro- cedural protections when faced with losing good time credits or receiving extra punishment. These gaps led to the development of legislative and administrative procedures, including griev- ance procedures for formal dispute resolution, arbitration, and “minimum standards” to certify compliance by prison officials. Finally, the litigation movement “heightened public awareness of prison conditions.”56 As media and other coverage publicized the brutality of prisons, they helped mobilize support for change. As a result of these developments, “legislative, regulatory, and supervisory bodies adopted rules . . . and facilitated correctional improvements.”57
53 James B. Jacobs, The Prisoners’ Rights Movement and Its Im- pacts,1960–80, 2 crIme and JusTIce 429, 458 (1980).
54 Id. 55 Id. 56 Id. 57 m. kay harrIs and dudley P. sPIller, Jr., afTer decIsIon: ImPlemen-
TaTIon of JudIcIal decrees In correcTIonal seTTInGs 26 (1977).
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On the judicial front, the litigation boosted the law by providing a growing body of precedent for future litigation ef- forts. The Holt case is instructive here because it demonstrates how the plaintiff relied on court opinions from other jurisdic- tions and practices of other prisons to push for the right to wear one-half-inch beards. Some of these practices already existed elsewhere because Muslims had pushed for change at those in- stitutions. The petitioner in Holt used these existing tools to en- act lasting change in prison. Effectively, the efforts of Muslims have created ground rules and precedents for individuals of oth- er faiths to build on tomorrow’s legal battles, and in some cases, to spark fervor to change the law.58
b. Reimagining Religion’s Role in Litigation
For students of religion, the phenomenon of Muslim prison litigation presents several vital insights about how reli- gion influences litigation efforts. This part considers three im- portant means by which religion exerts its influence. First and perhaps most obvious is when the litigation involves an explic- itly religious claim. In these cases, the very motivation for suing is religious in nature as it is about freedom to practice or express one’s religion, and one may take the actions as standing for the cause of Islam. Religious organizations are another aspect of religion’s influence on litigation. Second, it is clear the Muslim turn to courts in dramatic numbers was not all spontaneous or coincidental. Litigation efforts have progressed in part due to the strategic planning of religious groups both within prison and on the outside (in particular the NOI in the 1960s). Third, in addition to these influences are those instances where religious ideology inspires the individual to take a stand for justice. These
58 Most recently, the case of Dominique Ray, Dunn v. Ray, 586 U.S. 139 S. Ct. 661 (2019), has sparked a Supreme Court venture into religious rights and the death penalty. Ray sought to have an imam in the execution chamber with him in the same way that Christians were able to have their spiritual advisors in the room. While this case was being decided, the Court issued an order that allowed his execution to move forward regardless of the pending religious claim. This case was sharply criti- cized and the court revisited the issue in Murphy v. Collier, 587 U.S. 139 S.Ct. 1475 (2019) and Dunn v. Smith, 592 U.S. (2021).
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three spheres of influence invite us to reimagine religion’s role in Muslim litigation. Taken as a whole, this part of the Essay supplements critical work on prison litigation efforts of Mus- lims in prison by underscoring the significance of religious ideas on those same efforts.
At the outset, it must be recognized that some of the lit- igation is partially a reflection of Muslim-specific repression, that is, Muslims sue more because they suffer greater hardships and have more grievances than other religious adherents. There is little doubt that legal justifications have been used to stifle religion and prevent Muslims from practicing their faith. As one study notes, departments of correction “have made it increas- ingly difficult for many inmates to practice their religious be- liefs. Followers of the Christian and Jewish faiths have found it easiest to follow their spiritual convictions, while Muslims . . . have found it more difficult.”59 The situation is an extension of longstanding practices that disadvantage Muslims. Take, for example, the issue of worship space—Christians have never had much cause to petition for separate worship spaces for Catholics and Protestants in prison. Christians could take these and other accommodations for granted, yet Muslims of different denom- inations have often been lumped together into a homogenous whole despite vast differences in the way these groups under- stand Islam. As a result, Muslims have had to continue litigating these issues in courts even today.60
In the early years of litigation around Muslim religious issues, the main battles were concentrated in several foundation- al areas: to establish Islam as a legitimate religion, obtaining the Qurʾān and other religious writings, and getting access to reli- gious leaders.61 In these lawsuits, the desire to litigate is an ex- pression of commitment to faith. This situation is a pure instance
59 Jeffrey Ian Ross, Resisting the Carceral State: Prisoner Resistance from the Bottom Up, 36 Social JuStice 28, 32 (2009–10).
60 For example, Abdul Maalik Muhammad has recently been involved in litigation to secure individual worship space for Sunnī Muslims in Arkansas prisons, Massoud Hayoum, Muslims Sue Arkansas Prisons Over Failure To Offer Prayer Ser- vices, PacIfIc sTandard, Mar. 8, 2019, http://psmag.com/social-justice/muslims-sue- arkansas-prisons-over-failure-to-offer-prayer-services.
61 Lawrence O’Kane, Muslim Negroes Suing the State, n.y. TImes, Mar. 19, 1961, at 46 (“The basic issue in all cases is the conflict between religious freedom
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of religion influencing an individual to engage in a struggle on behalf of Islam. Advocating for Islamic customs, food, religious services, holidays, and the like is not the same as other advocacy because it involves deeply held beliefs and practices. There is spiritual significance in the lawsuit, the very least of which is the fact that the outcome can impact one’s spiritual life itself.
Indeed, some have located Muslim prison litigation within the frame of the American prophetic tradition. In this re- spect, the action represents a means of identifying the diversity of political and religious identities and values that motivate ac- tivism.62 The prophetic orientation drew upon civil rights activ- ism and Islamically inspired motivations, and “became not only a vehicle for Black identity, but also a voice for Black Muslim prisoners—and in that context adopted reformist practices such as lawsuits to protect prisoners’ religious freedom.”63 Through this approach, Muslims have taken a seemingly mundane affair like a lawsuit and sublimated it into an act of faith, as one indi- vidual describes:
The Grace of Allah has also been upon we Muslims in the New York State Correction System. He has given us several openings in the Federal Courts across the country so that we may seek redress from those in State and Federal authority who seek to regress our Free- dom of Religious Worship, rights guaranteed us in the U.S. Constitution.64
As these sentiments proclaim, a court action does not commence coincidently, but instead represents a conscious practice of theo- logical proportions.
Moreover, religion influenced, and continues to influence, litigation efforts through conscious organizational efforts. In the
as guaranteed under Federal and state Constitutions, and the duty of prison officials to make rules necessary for the safe and peaceful operations of the prison”).
62 Caroline Seymour Jorn, Kristin Sziarto, and Anna Mansson McGinty, The American Prophetic Tradition and Social Justice Activism among Muslims in Milwaukee, Wisconsin, 13 coNtemporary iSlam 155, 156 (2019).
63 Id. at 159. 64 Quoted in felBer, Those, supra note art3-16 at 67.
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earliest times, the NOI has been duly credited with launching the first prison litigation movement, which one scholar describes, used law “to challenge officialdom.”65 In its advocacy, including the publication, Muhammad Speaks, the NOI put the plight of the Black man in prison as central part of its missionary work. This concentration likely reflected the concerns of leadership:
In this sense, both Malcolm X and [Elijah] Muhammad shared a tradition of religiously motivated prison activ- ism . . . Malcolm X moved to permanently alter condi- tions for Muslim prisoners by encouraging incarcerated NOI members to file petitions with the courts demanding that their civil liberties and civil rights be protected.66
Individuals like Martin Sostre and Thomas X. Cooper plunged deeply into litigation as a matter of religious conviction, but they did not operate in isolation. Both were NOI converts, and Sostre was a jailhouse lawyer who assisted others with their legal is- sues and was known for providing templates for others in their writ-writing endeavors.67 The organizing did not go unnoticed, and one court even expressed suspicion at the lawsuits:
These are not cases where uneducated, inexperienced and helpless plaintiffs are involved. The similarity of the complaints, prepared while the plaintiffs were not supposed to be in communication with each other . . . taken together with the number of complaints direct- ed to this court by these plaintiffs and others of the same sect, indicates that these applicants are part of a movement . . . .68
65 Jacobs, Prisoners’, supra note art3-53 at 433. 66 malachI d. crawford, Black muslIms and The law: cIvIl lIBerTIes
from elIJah muhammad To muhammad alI 71 (2015). 67 felBer, Those, supra note art3-16 at 68. 68 Justice Stephen Brennan in a Clinton, NY prison case quoted in the
New York Times. Lawrence O’Kane, Muslim Negroes Suing the State, n.y. TImes, Mar. 19, 1961.
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The court’s characterization was not entirely off, for Muslims seemingly understood the potential of cooperation, and, as Fel- ber notes, “articulated the relationship between incarcerated Muslims and those outside through the metaphor of war . . . . Black prisoners saw the courts as a breach in the walls, which allowed them to express their claims before the world out- side.”69 Today, organizational efforts continue with groups like CAIR focusing on issues faced by Muslims in prison and using litigation as means to challenge prison policies and misconduct by officials.
Finally, it must be recognized that, for some individu- als, religion influences litigation by inspiring one to activism through an Islamic ideology. While the endeavor to document instances of this occurring among prison-litigants is not an easy task, there is at least some evidence showing that, for some, re- ligion (as opposed to simply the practice of one’s religion) is a principal motivation behind the act of taking a case to court. This accords with Muslims outside prison who seek social jus- tice in the name of religion.70 Such activism was also evident in the likes of Elijah Muhammad and Muhammad Ali, who were conscientious objectors to war. The former spent time in prison by his refusal to enlist in the military, and Ali was essentially stripped of his livelihood during the years it took for his lawsuit to be raised to, and eventually decided by, the Supreme Court.71 These individuals centered their struggles in their Islamic beliefs and showed religion as an impetus for political action.
The context of Black Lives Matter activism illustrates further evidence of how some Muslims understand faith and ac- tion to be inextricable. One study, for example, found that Mus- lims drew “a distinction between dua and doing to propose that a combination of prayer and direct action against injustice fulfills
69 felBer, Those, supra note 16 at 77. 70 Protest outside includes protesting police practices and involvement
with Black Lives Matters campaigns. See, e.g., Donna Auston, Prayer, Protest, and Police Brutality: Black Muslim Spiritual Resistance in the Ferguson Era, 25 traNS- formInG anThroPoloGy 11 (2017), describing how religious acts of worship like prayer and fasting merged with activism: “Along with marching, challenging the legal sys- tem, grassroots organizing, and economic empowerment strategies, these ritual prac- tices became part of the protest repertoire . . . .”; AbdoulKarim, Role, supra note art3-19.
71 See Clay v. United States, 403 U.S. 698 (1971).
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Muslims’ obligations to uphold social justice . . . . Activism takes on religious significance as a ritualized form of resistance that animates Islamic social justice principles in their everyday lives.”72 One subject described, “When you are doing activism and you’re advocating for the disadvantaged, you are expressing your faith.”73 Another detailed her religious obligations toward social justice as compelling her to act. She was critical of Mus- lims “who see oppression happening from around the world and all they do is dua but no action.”74
In the early years of prison litigation, there is little doubt that some saw litigation as a religious obligation and saw their court actions as not only sanctioned by faith but encouraged by it. Martin Sostre offers a profile of this spiritual bent, as one who was aware that prison rules forbade a person in prison from hav- ing access to another’s legal materials, yet he urged colleagues to copy a writ, but to not leave it lying around. For him, the materials were “dynamite,” and he called pens, paper, and note- books the “most essential weapons in fighting Shaitan.”75 For him, litigation was a tool in a holy war that was also a personal expression of what constitutes religiosity—the same holds for his predecessor Thomas Cooper, who, under the strains of ex- tra-legal punishment continued with his lawsuit regardless of cost. Even though prison officials tried to break him with their zero-tolerance policies and use of solitary confinement, they only strengthened his resolve to seek justice. “For the next de- cade, that is where he would remain . . . but instead of neutral- izing Cooper, the isolation radicalized him.”76 Rather than dom- inate him, the prison ignited a spiritual determination to endure years of litigation.
In the present, this tradition continues. For some behind bars, litigation is an action that comports with a religious edict. As the petitioner in Holt describes, “This form of action is one of the means of resisting oppression that the hadith refers to when
72 AbdoulKarim, Role, supra note art3-19. 73 Id. at 213. 74 Id. at 213–14. 75 felBer, Those, supra note art3-16 at 67–68. 76 Joseph T. Hallinan, GoInG uP The rIver: Travels In a PrIson naTIon
27 (2003).
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it states that you can fight oppression or stop oppression by ‘us- ing your tongue.’”77 For him, litigation squares directly with Islamic practice:
Lawsuits surrounding Islamic issues are also a form of dawah or calling because it educates the non-Muslims about what true Islam is . . . . I believe that when I stand before Allah (swta) on the Day of Qiyam, when I receive my Book of Deeds inshallah in my right hand, that my actions here will be the things that allow me to run across the Sirat bridge into Paradise. As Imam Jamil Al-Amin said: I seek truth over a lie, I seek justice over injustice, and I fear Allah (swta) more than I fear the state.78
iv. irony at thE intErSECtion of priSon iSlaM and aMEriCan law
The Muslim prisoners’ cases had a profound impact upon the entire correctional system because they helped to change the existing relationships between “keeper” and “kept” and they provided the legal vehicles for all incarcerated persons to attempt to vindicate their consti- tutional rights.79
Writ writing and prison litigation had shone a light on the abusive discretionary powers of the corrections sys- tem and invited the courts to scrutinize the system itself.80
The notion of a litigious Muslim contrasts with dominant narra- tives about Muslims, particularly Muslims in prison. In an age where some fear that Muslims in the U.S. seek to supplant Amer- ican law with “sharīʿa law” or that prisons are fertile fields for radicalization and recruitment for extremist or terrorist groups, this Essay points in the opposite direction. Some far-right
77 Letter, supra note art3-51. 78 Id. 79 Smith, Black, supra note art3-7 at 17. 80 felBer, Those, supra note art3-16 at 70.
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groups have employed the term “litigation jihad” or “lawfare” to describe what they see as the use of litigation as a weapon to overthrow the American legal system or to instill it with sharīʿa law.81 Yet these descriptive terms overlook developments in U.S. prison law, where Muslims in America have made the most sig- nificant legal impact. Whereas these disparaging terms intend to depict litigation as a means for frivolous or harassment suits, in prison, the claims often involve deeply-held religious beliefs and practices. In the most extreme cases, a lawsuit can mean the difference between life and death. Muslims have indeed struggled against their treatment in the classical sense of jihad; however, the turn to litigation has been largely defensive—to protect people in prison—rather than as an offensive strategy to undermine the legal system. Like Muslims outside of prison who use courts to handle civil matters, Muslims in prison have put a certain faith in American law and the core promise that they will get their day in court.
Here, litigation efforts are not about installing sharīʿa law as much as enforcing existing law and expanding the law’s protection. They underscore the Muslim contribution to the de- velopment of American law and the creation of a sizeable body of case law that has been useful to other litigants. For example, in the decade following the Cooper decision, numerous court opin- ions cited this case favorably.82 Similarly, prisoner-petitioners have used the Holt v. Hobbs ruling to advance their own claims. Sometimes Muslims contribute to the law behind the scenes, in- cluding when the litigation produces a settlement. While there may be no case law produced via court opinion, settlements may result in rule changes or policy revisions. In such instances, the terms of the settlement enact a change in the “law” in ways that are less obvious.
That said, even when Muslims obtain court injunctions or other favorable rulings, getting prisons to follow the ruling is an entirely different obstacle. A particular victory does not
81 See Pam Geller, sToP The IslamIzaTIon of amerIca: a PracTIcal GuIde To The resIsTance (2017).
82 Jacobs, Prisoners’, supra note art3-53 at 440–41. See also Wolff v. McDon- nell, 418 U.S. 539, 556 (1974) (citing Cooper favorably); Cruz v. Beto, 405 U.S. 319, 321–22 (1972) (same).
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always amount to a victory for the rule of law because when a court issues a favorable ruling, it hardly guarantees enforce- ment. This is a notable trope in the case law—when prisoner-pe- titioners obtain a court victory only to have prison officials fail to abide by it. Omissions like these demonstrate how powerless people in prison are against their keepers. This point was raised by the Sunnī plaintiff in Holt, who sued for the right to grow a half-inch beard. At the district court level, the petitioner was granted an injunction to wear a half-inch beard until the court could hold an evidentiary hearing on the issue. In that hearing, he described the extra-legal struggle he faced after obtaining the injunction:
I would also point out to you that even though there has been a restraining order in place, that I’ve still been sub- jected to harassment on the part of ADC staff at various times. In fact, being locked up in [administrative seg- regation] under investigation on the grounds that Major Robertson stated that I had been in the law library and had typed an order up on the law library computer. When I told him that the order was valid, he tried to state that I had forged Judge Miller’s signature. Even though I was let out of the segregation several hours later, after it was determined that the order was in fact valid. Going down the hallway—I even had to go and ask Warden Warner for assistance because I would carry the order in my pocket because certain shifts weren’t notified that the order was in effect and that I was allowed to wear the beard, so officers and people in positions of authority would try to harass me and threaten to lock me up for having the beard and would say they didn’t care what the order said, they didn’t care that—if it came from a federal judge or not, this was the Department of Correction, this wasn’t the feds [sic] . . . I couldn’t even go to breakfast in the morning times because I was being harassed by staff in the hallways.83
83 Gregory Holt, personal communication, Jan. 16, 2022.
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As Muhammad’s testimony describes, getting court permission is one battle, but getting prison officials to comply is another battle entirely. The situation lends credence to the notion that the rule of law is a political fantasy that is impossible to attain,84 for even when the law is clear, prison officials can undermine its operability. Civil rights struggles outside of prison taught this lesson well: to change the law was only half of the battle; the other half was enforcement, or lack of enforcement to be more accurate. Moreover, prison officials intentionally ignoring hard- won victories deters people in prison from engaging in the griev- ance process and ultimately litigation altogether.
Some of the cases surrounding Muslim litigation go as far as to demonstrate a role reversal between the guards and the guarded. There, the criminal emerges not simply to expand prison rights, but also to compel prison staff to follow the law. In this role, the individual sheds the criminal designation and becomes a variety of legal proponents: sometimes jailhouse lawyer, sometimes as petitioner in a case or class action, or sometimes as a voice to ensure others in prison are treated just- ly. On the opposite side of this role, prison staff indulge the role of lawbreaker, knowingly violating rules and trampling on the rights of others. Muslims perform the regulatory function of watching the watcher and going to great legal lengths to hold prisons accountable.
Although such a check on government power might typ- ically be expected to come from one of the other branches of government, (ideally from the executive branch itself), incar- cerated Muslims have stepped up to lead the charge. In effect, they are a constraining force on the government with the convict turned lawful, working to hold the state accountable to the law, while the prison officials, mandated to reform and rehabilitate, instead conduct themselves in ways that suggest they need re- form. This proposition may strike some as counterintuitive, but, given the litigious history of Muslim prisoners, its merit is un- deniable: Islamic activism strengthens the very underpinnings of American law.
84 Timothy A. O. Endicott, The Impossibility of the Rule of Law, 19 ox- ford J. leG. sTud. 1 (1999).
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Muslims in American Prisons
There are also positive associations between litigation and rehabilitation efforts.85 Rehabilitation embodies at least two critical aspects, one of which is rehabilitating individuals from the prison experience, the other is to induce one to lead a law abiding-life and stay out of prison. At the beginning, the filing of lawsuits led to greater opportunities for Muslims to practice re- ligion in prison. By creating space for Islam in prison, Muslims were able to implement rehabilitation strategies as well. These efforts would yield noteworthy results, with both empirical and anecdotal evidence indicating such influence. For example, one of the earliest studies of American Islam that considered prisons noted that recovering alcoholics and drug addicts were able to cope in prison better after converting to Islam.86 Association with Islam is reported to improve adjustment to prison, self-esteem,87 and reformatory potential,88 as well as reduce recidivism rates more than other groups statewide89 and nationwide.90 The op- portunity to encounter Islam in prison became an effective entry point to a lawful life, free from crime. In this sense, the ability to practice religion is related to the rule of law because religion
85 In the Christian context, it has been suggested that “religious devotion and litigation were commensurate. Examining your case for legal discrepancies and loopholes that might support a courtroom appeal and seeking forgiveness in church were compatible rehabilitative activities.” Such a description supports the present work by both showing the compatibility of religiosity and the act of suing and ground- ing both in rehabilitation. Stephanie Gaskill, Moral Rehabilitation: Religion, Race, and Reform in America’s Incarceration Capital 124 (2017) (Ph.D. dissertation, Uni- veristy of North Carolina at Chapel Hill), http://cdr.lib.unc.edu/concern/dissertations/ vh53ww96h.
86 C. Eric Lincoln, The Black muslIms In amerIca 77–78 (1994). 87 T. A. Barringer, Adult Transformation inside a Midwest Correctional
Facility: Black Muslim Narratives of Their Islamic Conversion 125 (1998) (unpub- lished Ph.D. dissertation, Northern Illinois University) (on file with author).
88 Felecia Dix-Richardson and Billy Close, Intersections of Race, Reli- gion and Inmate Culture: The Historical Development of Islam in American Correc- tions, in relIGIon, The communITy, and The rehaBIlITaTIon of crImInal offenders 11, 87 (Thomas P. O’Connor & Nathaniel J. Pallone, eds., 2003).
89 Byron Johnson et al., Religious Programs, Institutional Adjustment, and Recidivism among Former Inmates in Prison Fellowship Programs, 14 JusT. Q. (1997), available at http://www.leaderu.com/humanities/johnson.html.
90 Stephen Seymour, The Silence of Prayer: An Examination of the Fed- eral Bureau of Prisons’ Moratorium on the Hiring of Muslim Chaplains, 37 colum. hum. rTs. l. rev, 523, 532 (2006) (finding that the recidivism rate for Muslims was about 8% compared to 40% for Catholics and Protestants).
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contributes to an existence that is more attuned to a law-abiding life. Whereas before, chaos and lawlessness may have reigned in one’s life, now there is direction and determination to follow a higher law. Lawsuits created space for such encounters with Islam in prison, which have buttressed rehabilitation efforts.
A final oddity arises in the wake of widespread Muslim defeat in court. Empirically speaking, Muslims overwhelmingly lose court claims, yet this abysmal track record has hardly damp- ened the spirit or volume of lawsuits. Despite that, as one study showed, when it came to Free Exercise claims, “only Muslims were significantly and powerfully associated with a negative outcome before the courts,”91 Muslims continue to turn to liti- gation in volume. The fact that adherents from other groups are twice as likely to win such cases is hardly a deterrent, and even though the pattern creates a “religious liberty success deficit for Muslims,”92 they continue the shackled march to courthouses all over the nation. This reality, especially when combined with the conduct of prison officials that aims to cast a chill on the merits of even bothering with a complaint let alone engaging in full-blown litigation, may indicate that there is more at stake in a case than merely winning.
Muslim prison litigation is ultimately a response to law- lessness‒some of which is an expression of spiritual conscious- ness trying to right earthly wrongs.
91 Michael Heise and Gregory C. Sisk, Free Exercise of Religion before the Bench: Empirical Evidence from the Federal Courts, 88 noTre dame l. rev. 1371, 1386 (2013).
92 Id. at 1388.
51
Forging a Habsburg Islamic Legal System: Legal Transformation and Local Agency
in Bosnia and Herzegovina (1878–1918)
Ninja Bumann University of Vienna
Abstract The integration of Islamic law into the Habsburg administrative structures of Bosnia and Herzegovina following the 1878 occupation by Austria-Hungary marked a significant shift in the existing Islamic legal system. The Habsburg bureaucracy made notable reforms to the Islamic judiciary and reduced the application of Islamic law to the private sphere of family and marriage, which entailed the establishment of a two-tier court system, including a state-con- trolled Supreme Sharīʿa Court in Sarajevo. This paper examines the impacts of these legal reforms, focusing on the agency of local qāḍīs and plaintiffs in the process. Its analysis suggests that the integration of the sharīʿa courts into the Habsburg administration launched a process of translation of legal norms, knowledge, values, and practices, resulting in a unique blend of Ot- toman Islamic legal practices and Habsburg legal structures and values. The paper argues that despite increased government control, local actors, includ- ing qāḍīs and plaintiffs, still managed to retain some autonomy and thereby significantly shape the legal system.
Keywords: Bosnia and Herzegovina, Austria-Hungary, Southeastern Europe, Islamic law, Muslim minority, family law, legal transformation
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introduCtion
The Congress of Berlin in 1878 marked a significant break for Muslim communities in the hitherto Ottoman territo-
ries of Southeastern Europe. The Treaty of Berlin redrew the region’s borders and placed Muslims under (predominantly) Christian rule in the newly established successor states to the Ottoman Empire, while guaranteeing them civil and political rights as well as the free practice of their faith.1 It also gave Austria-Hungary the mandate to occupy the province of Bos- nia and Herzegovina, which remained a de jure part of the Ot- toman Empire (until its formal annexation by Austria-Hungary in 1908). As stated in the Habsburg emperor’s proclamation to Bosnia’s inhabitants of July 1878, and specifically defined in the Habsburg-Ottoman Novi Pazar Convention of April 1879, the occupation mandate guaranteed freedom of worship to all inhabitants, including Muslims.2
To fulfill this obligation, the newly installed Aus- tro-Hungarian authorities had to integrate Islamic institutions, including its legal system, into their own (secular) administra- tive structures. Following the occupation, sharīʿa courts were allowed to continue ruling on legal matters according to Islamic law, however, the Habsburg authorities soon introduced signif- icant reforms. According to a report from the Austro-Hungari- an finance minister Benjamin Kállay to the Cisleithanian prime minister Eduard Taaffe in 1883, the authorities aimed to control the sharīʿa courts and local qāḍīs, while also guaranteeing the free practice of Islam. Kállay thought that the Habsburg admin- istration should lead to the “assimilation of a large part of the
1 A general overview on civic and religious rights of Muslims in post-Ot- toman Southeastern Europe is provided by eMily greble, MusliMs and the Making of moDeRn euRope (2021).
2 Proclamation an die Bewohner von Bosnien und der Hercegovina: Wiener Zeitung vom 28. Juli 1878, Nr. 172, In Sammlung DeR füR boSnien unD die hercegovina erlassenen gesetze, verordnungen und norMalweisungen: i. banD 3 (1880); Convention zwischen Oesterreich-Ungarn und der Türkei vom 21. April 1879,” in Sammlung DeR füR boSnien unD Die heRcegovina eRlaSSenen ge- setze, verordnungen und norMalweisungen: i. band 5, Art. 2 (1880),; muSTafa iMaMović, Pravni PoložaJ i unutrašnJo-Politički razvitak bih od 1878. do 1914., 9–20 (2007).
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Forging a Habsburg Islamic Legal System
Mohammedan-confessional legislation with that of the state,” and believed that these reforms would be well received by the Muslim population due to the allegedly “increasingly evident undeniable merit of our laws.”3
Kállay’s concept of a “civilizing mission” aimed at mod- ernizing and assimilating the Islamic judiciary aligned with the overall Habsburg “quasi-colonial” effort in Bosnia, character- ized by asymmetrical power dynamics in governmental struc- tures.4 However, several studies have highlighted that this did not lead to the demise of Islamic law but, rather, led to marked transformations within it. As Fikret Karčić’s seminal research has shown, much Ottoman-Islamic law “survived” in post-Otto- man Bosnia, while the Habsburg reforms were similar to those introduced elsewhere in European colonies, such as in Algeria and India.5 Mehmed Bećić has argued that the Austro-Hungarian reforms were based on colonial models of administering the
3 Report by Benjamin Kállay, to Austrian Minister-President Eduard Ta- affe (June 5, 1883) (Austrian State Archives (AT-OeStA), Allgemeines Verwaltung- sarchiv (AVA), Justiz JM Allgemein Sig 1 A1238, Fasc. I N I Vz.1a, 20: ad 9343- 1883/J. M.).
4 Scholars use a variety of terms to describe the asymmetrical rela- tionship between Bosnia and the Habsburg monarchy’s core. Since describing Bos- nia as a “colony” can be controversial, a variety of specific terms, such as “prox- imate colony” (Donia), “semi-ˮ or “quasi-colony” (Detrez), or “colonial govern- mentality” (Aleksov) have been proposed. This paper uses “quasi-colonial” to em- phasize that Habsburg rule had many characteristics of colonial rule. See Bojan Aleksov, Habsburg’s “Colonial Experiment” in Bosnia and Hercegovina Revisited, in schnittstellen: gesellschaFt, nation, konFlikt und erinnerung in südosteu- Ropa 201–16 (Ulf Brunnbauer, Andreas Helmedach, and Stefan Troebst, eds., 2007); Raymond Detrez, Colonialism in the Balkans: Historic Realities and Contempo- rary Perceptions,” available at http://www.kakanien-revisited.at/beitr/theorie/RDe- trez1.pdf; Robert J. Donia, The Proximate Colony: Bosnia-Herzegovina Under Aus- tro-Hungarian Rule, available at http://www.kakanien-revisited.at/beitr/fallstudie/ RDonia1.pdf. Clemens Ruthner provides an overview of the historiographical as- sessment of Austro-Hungarian rule in Bosnia as colonial rule: Clemens Ruthner, Bosnien-Herzegowina als k. u. k. Kolonie: Eine Einführung, in boSnien-heRzegow- ina und Österreich-ungarn: 1878–1918, 15–44 (Clemens Ruthner and Tamara Scheer, eds., 2018).
5 See Fikret karčić, šeriJatski sudovi u JugoslaviJi 1918–1941 (2005), esp. at 21–26; Fikret Karčić, Survival of the Ottoman-Islamic Laws in Post-Ot- toman Times in Bosnia and Herzegovina, in konFlikt und koexistenz: die recht- sordnungen südosteuroPas iM 19. und 20. Jahrhundert 43–69 (Thomas Simon, ed., 2017).
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Islamic judiciary.6 By building upon these discussions of con- tinuity and change in the Islamic legal system following the Habsburg occupation of Bosnia in 1878, this paper aims to in- vestigate how the Ottoman Islamic legal system was adapted towards the new Austro-Hungarian political and administrative framework by focusing on legal practice at sharīʿa courts and the local Muslims’ agency therein.
To date, most studies on the Islamic legal system in Habsburg Bosnia have emphasized its structure and legal norms,7 although recent years have witnessed an increased in- terest in legal practice at sharīʿa courts. Hana Younis, for in- stance, has assessed the everyday life of Bosnian qāḍīs who, she argues, had to contend with the loss of their prestigious status, as well as limitations to their jurisdictional functions.8 Other historians have also increasingly used sharīʿa court records to analyze the regulation of marriage and family issues.9 Beyond the study of Islamic law, the situation of Muslims in Habsburg Bosnia is relatively well-studied and the most recent works have
6 Mehmed Bećić, Novi pogled na transformaciju šerijatskih sudova u Bosni i Hercegovini: Da li je 1883. godine nametnut kolonijalni model primjene šeri- jatskog prava?, LX godišnJak Pravnog Fakulteta u saraJevu 59 (2017).
7 In addition to Karčić and Bećić, Enes Durmišević also made a key contribution to the historiography of Islamic law under Habsburg rule, see, e.g., eneS durMišević, šeriJatsko Pravo i nauka šeriJatskog Prava u bosni i hercegovini u PrvoJ Polovini xx stolJeća (2008); Enes Durmišević, Šerijatski sudovi u Bosni u drugoj polivini XIX stoljeća, 12 anali Pravnog Fakulteta univerziteta u zenici 75 (2013).
8 See hana younis, biti kadiJa u kršćanskoM carstvu: rad i osoblJe šeriJatskih sudova u bosni i hercegovini 1878.–1914. (2021). Younis also exam- ined the legal practice at sharīʿa courts on several selected topics, such as divorc- es, “prodigality”, and children born out of wedlock. See Hana Younis, Razvjenčanja kroz dokumente Vrhovnog šerijatskog suda Sarajevo u prvim decenijama nakon Aus- tro-Ugarske okupacije, in pRoceeDingS of The fifTh inTeRnaTional congReSS on iS- laMic civilization in the balkans 419–36 (Eren Halit, ed., 2015); Hana Younis, Ra- sipništvo u praksi šerijatskih sudova u Bosni i Hercegovini od 1878. do 1914. godine, 44 pRilozi 81 (2015); Hana Younis “Nezakonita” djeca pred zakonom: Dokazivanje očinstva u Bosni i Hercegovini na razmeđu 19. i 20. stoljeća, 47 pRilozi 45 (2018).
9 See, e.g., Ninja Bumann, Marriage Across Boundaries: Mixed Mar- riages at the Supreme Sharia Court in Habsburg Bosnia and Herzegovina, 19 hiS- toriJska traganJa 151 (2020); Ninja Bumann, Contesting Juridical Authority: Sha- ria, Marriage, and Morality in Habsburg Bosnia and Herzegovina, 53 auSTRian hiS- tory yearbook 150 (2022); adnan Jahić, MusliMansko žensko PitanJe u bosni i heRcegovini (1908–1850) (2017); Amila Kasumović, Konkubinat u Bosni i Herce- govini na prijelomu 19. i 20. stoljeća, 47 pRilozi 69 (2018).
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Forging a Habsburg Islamic Legal System
specifically focused on the Ottoman cultural legacy and the on- going trans-Ottoman networks and entanglements among Bos- nian Muslim intellectuals.10
This growing historiographical interest in Islam and Muslims in post-Ottoman Bosnia corresponds to a broader trend to investigate the lives and the legal status of Muslims in South- eastern Europe following the cessation of Ottoman rule. Several recent studies have explored how Muslim communities became minorities in the newly established nation-states of Bulgaria, Greece, and Serbia, arguing that this resulted in the incorpora- tion and transformation of the Ottoman legal heritage as well as the restructuring of Islamic institutions.11 The present paper con- tributes to this growing scholarship by focusing on the transfor- mation of the Islamic legal system in Habsburg Bosnia in court practice. In so doing, it also draws upon a growing body of lit- erature relating to the incorporation of Islamic legal systems in colonial administrations of the late nineteenth century, such as in Russian Central Asia or African and Southeast Asian territories under French and British rule.12
Such legal transformations have been studied from dif- ferent theoretical perspectives, while recently, the legal historian
10 See Leyla Amzi-Erdoğdular, Alternative Muslim Modernities: Bos- nian Intellectuals in the Ottoman and Habsburg Empires, 59 compaRaTive STuDieS in SocieTy anD hiSToRy 912 (2017); Harun Buljina, Empire, Nation, and the Islamic World: Bosnian Muslim Reformists Between the Habsburg and Ottoman Empires, 1901–1914 (2019) (Ph.D. dissertation, Columbia University); Dennis Dierks, Script- ing, Translating, and Narrating Reform: Making Muslim Reformism in the European Peripheries of the Muslim World at the Turn of the 19th Century, in knowledge on the Move in a transottoMan PersPective: dynaMics oF intellectual exchange fRom The fifTeenTh To The eaRly TwenTieTh cenTuRy 157 (Evelyn Dierauff et al., eds., 2021).
11 See gReble, supra note 1; steFanos katsikas, islaM and nation- alisM in Modern greece 1821–1940 (2021); Milena b. Methodieva, between eMPire and nation: MusliM reForM in the balkans (2021); anna M. Mirkova, MusliM land, christian labor: transForMing ottoMan iMPerial subJects into bulgarian national citizens, c. 1878–1939 (2017); Jelena Radovanović, Contest- ed Legacy: Property in Transition to Nation-State in Post-Ottoman Niš (2020) (Ph.D. dissertation, Princeton University).
12 An overview of legal pluralism and the role of Islamic law in Mus- lim majority-colonies is offered by Paolo Sartori and Ido Shahar, Legal Pluralism in Muslim-Majority Colonies: Mapping the Terrain, 55 JouRnal of The economic anD Social hiSToRy of The oRienT 637 (2012).
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Lena Foljanty has suggested viewing legal transfers as trans- lations of knowledge, practices, and values. Through this pro- cess, legal transfers create hybrid legal models and norms that are characterized by an amalgamation of different practices and understandings.13 Similarly, Lauren Benton’s studies on the role of law in colonial cultures outline that the incorporation of in- digenous and Islamic law into colonial pluralistic legal orders is characterized by negotiations about jurisdictional and cultural boundaries. She highlights how cultural and legal intermediar- ies have played a significant role in translating and brokering between imperial administrators and local societies. At the same time, she points out that colonial pluralistic legal systems often inhibited tensions and contests about legal authority and how these facilitated phenomena such as “legal jockeying” between different legal and jurisdictional orders.14 Starting from these the- oretical considerations, this article assumes that the translation of Ottoman Islamic law into the Habsburg framework should be analyzed beyond merely describing changes to legal structures and norms. Rather, the agency of local actors, including imperial administrators and judges, qāḍīs, and plaintiffs, in conflicts and negotiations, as well as the emergence of new norms and legal practices resulting from the amalgamation of different legal cul- tures are this study’s focus.
This study’s findings rely on the analysis of archival documents from the Supreme Sharʿīa Court (Bosnian: Vrhov- ni Šerijatski Sud) in Bosnia and Herzegovina, installed by the Habsburg authorities in July 1879 as an appeal body for local sharīʿa courts. The court records stored in the State Archives of Bosnia and Herzegovina (Bosnian: Arhiv Bosne i Hercegovine) in Sarajevo provide information on first-instance district sharīʿa court proceedings as well as on appeal procedures before the Supreme Sharīʿa Court. Due to the Habsburg legal interventions and archival practices, the available court records do not en- tail sicils, or qāḍī court registers, that are traditionally used for
13 Lena Foljanty, Rechtstransfer als kulturelle Übersetzung: Zur Trag- weite einer Metapher, 98 kritische viertelJahresschriFt Für gesetzgebung und RechTSwiSSenSchafT 89 (2015).
14 lauren a. benton, law and colonial cultures: legal regiMes in world history, 1400–1900 (2002), esp. at 1–30.
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Forging a Habsburg Islamic Legal System
studying legal practice in the Ottoman context.15 Rather, they in- clude correspondence between the local court and the Supreme Sharīʿa Court, the plaintiff’s appeal, and the decisions of the Supreme Sharīʿa Court. Since the type and number of archived documents vary from case to case, some also include additional material, such as minutes of court hearings, the verdicts of local trials of the first instance, and other types of correspondence and text material from different administrative institutions. The court material is to a large extent written in Bosnian (Latin script) and to a lesser extent in Ottoman Turkish (OT) and German.16
A close reading of selected cases from the Supreme Sharīʿa Court offers insights into the transformation of Islamic legal practice and the ensuing negotiations on jurisdictional and cultural boundaries as well as legal authority between different local actors. Besides describing the Habsburg structural reforms of the Islamic legal system, as outlined in the subsequent section, the analysis focuses on four key issues: the role of the Ottoman Turkish language and script for the continuity of Islamic legal practices; the rise in proceduralization and legal formalism in sharīʿa court proceedings; the formulation of Islamic legal opin- ions and the development of legal doxa; and finally, the responses of local plaintiffs to the Habsburg legal reforms by utilizing the new legal structures to make claims. Thereby, this paper argues that the Habsburg transformation of the Islamic legal judiciary led to a hybrid legal model, in which some parts of the Ottoman legal heritage were intentionally preserved, while others were re- placed with Austro-Hungarian concepts or colonial legal models. This legal amalgamation was, however, not only shaped by top- down efforts of the Habsburg authorities to muzzle and control local qāḍīs, but equally, by local agents who managed to retain some autonomy within the Islamic legal system.
15 Coşgel and Ergene give a concise overview of the use of sicils and methodological discussions for studying Ottoman legal practice, while, however, overly favoring and advertising a quantitative approach: Metin coşgel and ergene boğaç, the econoMics oF ottoMan Justice: settleMent and trial in the sharia couRTS 13–26 (2016).
16 Arhiv Bosne i Hercegovine (ABiH), Vrhovni Šerijatski Sud (VŠS), 1879–1918.
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Sharīʿa CourtS undEr habSburg rulE
From the fifteenth century, when Bosnia came under Ottoman rule, Islamic culture and institutions played a vital part in local society. The population consisted of four different confession- al groups: Muslims (38 percent according to an official census from 1879), (Serbian) Orthodox Christians (43 percent), Catho- lics (18 percent), and a small Jewish community.17 Non-Muslim groups were afforded considerable autonomy in administering family and matrimonial affairs, with the resulting pluralistic le- gal order referred to as the millet system. The term millet, ulti- mately derived from Arabic milla, roughly corresponded to a confessional community. However, this should not be equated with a clearly defined systematic order: Jurisdiction was fluid, and non-Muslims also used sharīʿa courts to regulate various issues, including family and matrimonial questions, according to Islamic law.18
Before the Danube Monarchy took over Bosnia in 1878, the mid-nineteenth-century Tanzimat (OT, Reorganization) re- forms that aimed to modernize the empire and its administration by incorporating elements from European legal and adminis- trative models had already significantly reshaped the Ottoman legal system. This had traditionally been based on Islamic law as well as the qānūn, or the sultan-issued state administrative regulations. The Tanzimat reforms introduced new legal codi- fications, some of which were based on a selective reception of European law, as well as courts. Thus, new penal (1840, 1858) and commercial codes (1850) were drafted that emulated French models. In the same vein, secular Nizamiye (OT, Regular) courts were established in 1865/66 in Bosnia, which regulated all civ- il legal affairs except for those issues that fell under the pur- view of separate commercial, consular, sharīʿa, or ecclesiastical courts. As of 1868, the Divan-i Ahkâm-i Adliyye (OT, Council
17 robin okey, taMing balkan nationalisM: the habsburg “civilis- ing Mission” in bosnia, 1878–1914, 8 (2007).
18 A summary of the millet system and current historiographical de- bates is provided by Karen Barkey and George Gavrilis, The Ottoman Millet Sys- tem: Non-Territorial Autonomy and Its Contemporary Legacy, 15 eThnopoliTicS 24 (2016).
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Forging a Habsburg Islamic Legal System
of Judicial Ordinances) was established as the highest court in the multi-level Nizamiye court system, putting appeal mecha- nisms under the control of a secular institution. Another signif- icant step was the drafting of an Ottoman civil code, the Me- celle-i Ahkâm-i Adliyye (OT, Digest of Legal Rules; hereafter Mecelle) between 1870 and 1877, the form of which was akin to that of “European” codified law, while its content was based on Islamic law. Thus, on the eve of the Habsburg occupation of Bosnia, European legal concepts had been introduced into the Ottoman legal system, and the competences of the sharīʿa courts were already being drastically curtailed to (at least in theory) the administration of family, marriage, and inheritance affairs.19
The 1870s not only saw major legal and administrative reforms and changes in the Ottoman Empire but also the so- called Great Eastern Crisis, which led to several uprisings and wars, that challenged the empire’s rule in Southeastern Europe. Following the Russo-Ottoman War of 1877–78, European pow- ers intervened to redraw the region’s borders. The initial peace treaty, signed at San Stefano in March 1878, was soon revised at the Congress of Berlin in June and July of that year, and resulted in the establishment of new nation-states (Romania, Bulgaria, Serbia, and Montenegro) which enjoyed varying degrees of in- dependence from the Ottoman Empire. Austria-Hungary, which had remained neutral during the war, was granted the mandate to occupy and administer the Ottoman province of Bosnia and Her- zegovina, which remained legally part of the Ottoman Empire until its annexation by the Habsburg Monarchy in 1908.
Due to this convoluted legal status, the Habsburg em- peror, Franz Joseph, guaranteed the preservation of the existing legal system and laws, at least initially.20 The Austro-Hungarian authorities soon implemented changes in the local court system to reduce the authority and jurisdiction of local qāḍīs. Sever- al months after occupying Bosnia, they replaced local judges
19 niyazi berkes, the develoPMent oF secularisM in turkey 160–72 (1964); saMi zubaida, law and Power in the islaMic world 129–33 (2003).
20 Proclamation an die Bewohner von Bosnien und der Hercegovi- na: Wiener Zeitung vom 28. Juli 1878, Nr. 172, in Sammlung DeR füR boSnien unD die hercegovina erlassenen gesetze, verordnungen und norMalweisungen: i. banD 3–4 (1880).
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at the “regular” (Nizamiye) civil courts with imperial officials, significantly limiting the qāḍīs’ role, as they had previously of- ten served at both sharīʿa and civil courts.21 This move was motivated by the Habsburgs’ general mistrust of local officials, who had hitherto served under the Ottoman government. While a few of them left Bosnia at the beginning of the occupation, those who remained were viewed with suspicion. A govern- ment decree in January 1879 even stated that the Ottoman offi- cials who remained in the country were either “unsuitable” or “insufficiently trustworthy.”22
In this spirit, the Habsburg government sought to restrict the jurisdiction of qāḍīs while fulfilling its international obliga- tions and guarantees. In accordance with its occupation man- date, as specified in the Novi Pazar Convention of April 1879, the Austro-Hungarian authorities were bound to uphold freedom of religion for all inhabitants of Bosnia, including Muslims.23 Thus, it was imperative that they preserve Islamic institutions as well as sharīʿa courts, yet limit their scope to marriage and family affairs. This jurisdictional limitation resembled the legal autonomy in the area of marriage and family that had been af- forded to the non-Muslim communities under Ottoman rule. It was formalized through an 1883 decree on the “Organization and Scope of Sharīʿa Courts,” which defined the responsibili- ties and jurisdiction of these courts exclusively to cover family, marriage, and inheritance matters among Muslims.24 Although the Tanzimat reforms had already encroached upon the jurisdic- tion of sharīʿa courts, both Muslims and non-Muslims turned to sharīʿa courts in Bosnia to settle family and other civil disputes until the early years of the Habsburg occupation. However, the
21 Bećić, supra note 6 at 66. 22 Erlass des gemeinsamen Ministeriums vom 1. Jänner 1879, Nr. 693
B. H., betreffend die Organisation der Justizverwaltung, in Sammlung DeR füR boS- nien und die hercegovina erlassenen gesetze, verordnungen und norMalwei- Sungen: ii. banD 6 (1881).
23 Convention zwischen Oesterreich-Ungarn und der Türkei vom 21. Ap- ril 1879, in saMMlung der Für bosnien und die hercegovina erlassenen gesetze, veRoRDnungen unD noRmalweiSungen: i. banD 5, Art. 2 (1880).
24 Verordnung über die Organisation und den Wirkungskreis der Scheri- atsgerichte: No. 7220/III, in Sammlung DeR geSeTze unD veRoRDnungen füR boS- nien unD Die heRcegovina 538–43 (1883).
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1883 reform introduced by the Austro-Hungarian government established strict jurisdictional boundaries, effectively under- mining the previous practice of jockeying or “shopping” be- tween different courts. This change transformed sharīʿa courts into institutions with “special jurisdiction” (German: Sonderger- ichtsbarkeit) for Muslims in family and marriage issues. 25
Such a “special jurisdiction” granted to religious insti- tutions for marriage and family matters was also extended to the territory’s other confessional groups. Hence, these issues were exempt from the jurisdiction of the civil courts and civil marriage did not exist in Habsburg Bosnia. Thus, while Mus- lims had to consult sharīʿa courts for such matters, the Serbian Orthodox, Catholic, and Jewish communities needed to turn to their respective religious institutions for settling marriage and family affairs.26
In some ways, this was similar to the autonomy that had been granted to non-Muslims under Ottoman rule, usually re- ferred to as the millet system. In this sense, the Habsburg au- thorities transformed the Muslim community into a millet, ex- ercising autonomy in the realms of marriage and family. Other post-Ottoman states in Southeastern Europe such as Bulgaria or Greece also used the Ottoman model as a template for grant- ing autonomy to their Muslim population.27 At the same time, applying different religious norms for regulating marriage and divorce was not alien to the Habsburg Empire. Since the Aus- tro-Hungarian Compromise of 1867, Austria-Hungary was ef- fectively divided into three legal regimes as far as marriage and family matters were concerned: The Austrian Civil Code of 1811 provided a legal framework for Cisleithania (Austria) based on Catholic-Canonic legal norms; Hungary and Transylvania fell
25 Mehmed Bećić, Das Privatrecht in Bosnien-Herzegowina (1878– 1918), in konFlikt und koexistenz: die rechtsordnungen südosteuroPas iM 19. unD 20. JahRhunDeRT 117–18 (Thomas Simon, ed., 2017); eduard eichler, das JuSTizweSen boSnienS unD DeR heRzegovina 196, 242–50 (1889).
26 Bećić, supra note 25 at 122–25. 27 See Nobuyoshi Fujinami, Defining Religion in a State That Wasn’t:
Autonomous Crete and the Question of Post-Ottoman Millet System, 63 JouRnal of chuRch anD STaTe 256 (2020); gReble, supra note 1 at 53–80; Stefanos Katsikas, Millets in Nation-States: The Case of Greek and Bulgarian Muslims, 1912–1923, 37 naTionaliTieS papeRS 117; 1912 (2009).
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under a wide array of confessional marriage laws until the intro- duction of mandatory civil marriage in 1894; and Croatia-Slavo- nia enjoyed some degree of autonomy since the Croatian-Hun- garian Compromise of 1868 and applied civil law based on the Austrian Civil Code.28
Nevertheless, the Islamic judiciary did diverge from the other ecclesiastical courts in Bosnia that regulated family and marriage affairs in several ways. Most importantly, the sharīʿa courts were integrated into the regular court system under gov- ernment control, due to the introduction of specific superviso- ry mechanisms. In July 1879, the Austro-Hungarian authorities created the Supreme Sharīʿa Court in Sarajevo, which served as an appeal body for the local sharīʿa courts of first instance. The latter could be found, before as well as after 1878, in each dis- trict town. From 1882, sharīʿa courts fell under the authority of the (local) district office; when independent district courts were established in 1906, the local sharīʿa courts became a division of each (local) district court.29 The Supreme Sharīʿa Court in Sa- rajevo operated within the framework of the Supreme Court, the highest appeal body for the civil courts. Thus, from 1883 to 1913, only two out of the five judges that served on this body were Bosnian Muslim qāḍīs. The other three were non-Muslims and simultaneously judges at the Supreme Court, while its president also chaired the Supreme Sharīʿa Court. As such, these judges almost exclusively hailed from other parts of the Habsburg Em- pire and had studied law in Vienna, Prague, Zagreb, or other Austro-Hungarian universities. After 1913, the Supreme Sharīʿa Court was composed of three Muslim qāḍīs and a (non-Muslim) member of the Supreme Court, whereby the latter only had an advisory role and no voting power.30
Although classical Islamic law foresaw some types of review mechanisms and the late Ottoman Empire had estab- lished a review committee for sharīʿa court rulings, the Meclis-i
28 Jana Osterkamp, Familie, Macht, Differenz: Familienrecht(e) in der Habsburgermonarchie als Herausforderung des Empire, 31 l’homme 17 (2020), esp. at 24, 30.
29 Cf. Bećić, supra note 6 at 80–81; beRichT übeR Die veRwalTung von bosnien und der herzegowina 1906, 512 (1906).
30 Bećić, supra note 25 at 85–86, 115.
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Tedkikat-i Şeriyye (OT, Assembly of Sharīʿa Inquiries) within the office of the şeyhülislam (OT, the Ottoman chief muftī), the idea of a formal, state-controlled appeals body was a novelty within the Bosnian Islamic judiciary. Similar, two-tiered sharīʿa court systems could be found, however, in other Muslim soci- eties under European colonial rule, such as Algeria and India.31 As Mehmed Bećić has aptly demonstrated, this similarity was the result of an attempt on the part of Habsburg administrators to “transplant” a colonial model of Islamic law from Algeria to Bosnia.32
These reforms also raised questions about the relation- ship between sharīʿa courts and other Islamic institutions. First, Austro-Hungarian authorities reduced the role of the highest re- ligious authority in Istanbul, the şeyhülislam, and established a local religious head for Bosnian Muslims in 1882, the reis-ul- ulema (Bosnian, “head of the ʿ ulamāʾ”). This position also served as the chair of the newly created four-member Ulema-Medžlis (Bosnian, Council of Scholars), which regulated Islamic affairs and education in Bosnia.33
The local population of Habsburg Bosnia had mixed re- actions to the occupation and reforms. While some Muslims, including qāḍīs, chose to leave Bosnia for the Ottoman Empire to avoid living under Christian rule, others accepted Habsburg governance and collaborated with the occupation regime. For instance, in a November 1878 declaration, several members of the Muslim elites, such as the pro-Habsburg Sarajevo muftī, Hil- mi Mustafa Omerović (the first reis-ul-ulema), and the supreme qāḍī Sunulah Sokolović expressed support for the Habsburg em- peror and advocated for the establishment of a local Islamic hi- erarchy independent of Istanbul, a proposal that was eventually implemented in 1882.34 Bosnians had, in general, only limited
31 karćić, supra note 5 at 23–24. 32 Bećić, supra note 6 at 72–75. 33 On the Habsburg reforms of Islamic institutions and hierarchies, see,
e.g., Zora Hesová, Towards Secularity: Autonomy and Modernization of Bosnian Is- lamic Institutions Under Austro-Hungarian Administration, in imagining boSnian MusliMs in central euroPe: rePresentations, transFers and exchanges 104 (František Šístek, ed., 2021).
34 Cf. youniS, supra note 8 at 44–46; iMaMović, supra note 2 at 131.
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ability to shape or oppose the legal system at the administrative level. Irrespective of their religious affiliation, Bosnians were excluded from political participation until the establishment of the Bosnian parliament in 1910, which granted limited forms of political rights. As a result, the religious sphere remained the only area where the male population could actively participate, since religion was considered the main structural feature of the Habsburg administration in Bosnia. For this reason, local protest movements were often framed along religious demands.35
In this vein, a movement for religious autonomy emerged among the Muslim population in Bosnia around the turn of the century. Research literature points to the 1899 conversion to Ca- tholicism of a young Muslim woman from Mostar as the catalyst for the widespread protest movement, largely supported by the landowning Muslim elite. Their main demand was greater auton- omy in religious and educational affairs, as articulated through petitions to the government. However, the Habsburg authorities did not accept these demands and even banished one of the lead- ers, Mostar Muftī Ali Fehmi Džabić, when he traveled to Istan- bul in 1902, resulting in the movement’s temporary stagnation. It regained momentum in 1905, leading to the formation of the first proto-national political party in Bosnia, the Muslim Peo- ple’s Organization (Bosnian: Muslimanska Narodna Organizaci- ja, MNO). The MNO leaders continued to advocate for religious autonomy, which was eventually granted after Bosnia’s formal annexation in 1908 through the Autonomy Statute in 1909.36
Despite the new regulation, the central demands of Muslim autonomists regarding the Islamic legal system were not fully addressed. These included enlarging the qāḍīs’ compe- tences so that they could implement and enforce their verdicts, as well as restructuring the Supreme Sharīʿa Court without
35 Heiner Grunert, Interreligiöse Konkurrenz und Kooperation im Impe- rium: Orthodoxe, Muslime und Katholiken in Bosnien-Herzegowina unter habsbur- gischer Verwaltung, in kooPeratives iMPeriuM: Politische zusaMMenarbeit in der SpäTen habSbuRgeRmonaRchie 266, 269, 277–78 (Jana Osterkamp, ed., 2018).
36 xavier bougarel, islaM and nationhood in bosnia-herzegovina 17–20 (2018); robert J. donia, islaM under the double eagle: the MusliMs oF bosnia and hercegovina, 1878–1914 (1981), esp. at 128–59; nusret šehić, auto- noMni Pokret MusliMana za vriJeMe austrougarske uPrave u bosni i hercegovini (1980).
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Forging a Habsburg Islamic Legal System
interference from non-Muslim judges. Although the latter de- mand was granted in 1913, the former was never realized and remained a persistent request voiced by Bosnian qāḍīs, partic- ularly during World War I.37 Despite the limited opportunities to implement structural changes in the Habsburg-controlled Islamic legal system, Bosnian Muslims did utilize these legal forums as qāḍīs and plaintiffs. As the following will illustrate, Bosnian Muslims were able to maintain a certain level of au- tonomy in legal practice, actively shaping the application of Islamic law on the ground.
prESErving thE ottoman turkiSh languagE and SCript
Despite the significant Habsburg interventions in the Islamic ju- diciary, as outlined above, much of the Ottoman Islamic legal heritage was preserved under Habsburg rule. Imperial officials understood that it would be crucial to maintain certain estab- lished Islamic legal practices in order to hold to their guarantee of the free exercise of Islam and to stabilize their rule, albeit it was not quite clear which practices and their extent. This can be best observed around the issue of the administrative language to be used at sharīʿa courts.
In the newly formed Austro-Hungarian administration, Ottoman Turkish was officially replaced with Bosnian (desig- nated the “provincial language” in contemporary terminology) and German. However, the Habsburg authorities refrained from issuing a general language regulation and instead specified the use of language for each institution. As noted by the historian Dževad Juzbašić, this blurred the boundary between the admin- istrative use of German and Bosnian.38 While German domi- nated at most legal institutions in Bosnia, the situation was dif- ferent at sharīʿa courts. In contrast to most other courts that were run by judges from elsewhere in the empire, local Bos- nian qāḍīs could continue to adjudicate at sharīʿa courts. While
37 Bumann, Contesting, supra note 9; durMišević, supra note 7 at 99, 124–25; šehić, supra note 36 at 275–78.
38 dževad Juzbašić, Jezičko PitanJe u austro-ugarskoJ Politici u bos- ni i hercegovini Pred Prvi svJetski rat 7–15 (1973).
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the language of communication at courts under Ottoman rule was likely a mixture of Bosnian and Ottoman Turkish, qāḍīs were trained and prepared documentation in the official Otto- man Turkish language, as explained by Tatjana Paić-Vukić.39 Thus, a complete shift towards Bosnian, despite being the lo- cal population’s native language, was deemed impractical by Habsburg officials, and qāḍīs continued issuing their written opinions and judgments in Ottoman Turkish, as it was consid- ered the language in which they could most accurately formu- late their explanations.40
At the same time, the use of Ottoman Turkish soon be- came an obstacle for communication with other legal and ad- ministrative institutions. In 1896, the Supreme Sharīʿa Court acknowledged that the many documents issued in Ottoman Turkish by the sharīʿa courts were causing difficulties for many court parties and authorities who were not familiar with the language. To address this issue, the supreme qāḍīs request- ed that local qāḍīs use Bosnian in their official functions.41 The president of the Supreme Court, Martin Kenđelić, who also presided over the Supreme Sharīʿa Court, clarified several months later in a circular letter that this request was not intend- ed to affect sharīʿa law, nor was it meant to prohibit the use of Ottoman Turkish in sharīʿa courts: The qāḍīs were to continue issuing their judgments, which fell within the jurisdiction of the sharīʿa courts, in Ottoman Turkish, but were encouraged to draft official documents and communications in Bosnian if able to do so.42
Moreover, the use of Ottoman Turkish at sharīʿa courts represented more than just practical considerations. It became
39 tatJana Paić-vukić, the world oF MustaFa Muhibbi, a kadi fRom SaRaJevo 47 (Margaret Casman-Vuko, Tatjana Paić-Vukić, and Miroslav Vuko, trans., 2011).
40 Supreme Court to the Supreme Sharia Court (June 5, 1880) (ABiH, VŠS, box 1, A 1880-5: no. 1761, p. 2).
41 340. 2719/Praes. Naredba vrhovnog suda za Bosnu i Hercegovinu od 17. novembra 1896, in zbirka naredaba za šeriJatske sudove u bosni i hercego- vini: 1878–1900, 210–20 (Sarajevo: Zemaljska vlada i Vrhovni sud za Bosnu i Her- cegovinu).
42 346. 484. Okružnica Predsjedništva Vrhovnog Šerijatskog suda od 21. marta 1897, in Id. at 229–30.
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a symbol of the preservation of the Islamic jurisdiction and the ongoing connection to the “trans-Ottoman” cultural and com- munication sphere.43 Despite the shift by most Muslim intel- lectuals towards the use of Bosnian in public discourse after the Habsburg occupation of 1878, Ottoman Turkish and Arabic continued to be used under Habsburg rule. Ottoman Turkish periodicals such as the literary-political Servet-i Fünun (The Wealth of the Arts) circulated in Bosnia while Ottoman Turk- ish newspapers, such as Vatan (Fatherland) or Rehber (Guide), were published under the Austro-Hungarian administration. In this manner, Bosnian Muslims could continue participating in “trans-Ottoman” discourses and debates.44
Due to its symbolic importance, the Supreme Sharīʿa Court emphasized the maintenance of Ottoman Turkish lan- guage and writing style in court documents. Judges at the Su- preme Sharīʿa Court reviewed local qāḍī verdicts to ensure their conformity to the traditional sharīʿa court recording practice, known as the sakk-i şer’î, written in Ottoman Turkish.45 When Mustafa Redžić, a Sharia court trainee in Bihać, was unable to comply with the sakk-i şer’î due to his limited knowledge of Ottoman Turkish, the supreme qāḍīs encouraged him to write the verdict in Ottoman Turkish as best as he could. Since Redžić refused to do so, a disciplinary investigation against him was opened. However, the Bihać County Court ultimately ruled that the issue was not with the language used but rather Redžić’s un- authorized signing of official documents.46 The chairman of the Bihać County Court, Marian Turzanski, did, however, comment on the language matter:
43 For a conceptualization of the term “trans-Ottoman” as describing a trans-imperial sphere of communication and interactions, see Stephan Conermann, Albrecht Fuess, and Stefan Rohdewald, Einführung: Transosmanische Mobilitätsdy- namiken. Mobilität als Linse für Akteure, Wissen und Objekte, in TRanSoTTomanica -osteuroPäisch-osManisch-Persische MobilitätsdynaMiken: PersPektiven und Forschungsstand 47–57 (Stefan Rohdewald, Stephan Conermann, and Albrecht Fu- ess, eds., 2019).
44 Amzi-Erdoğdular, supra note 10 at 923–25. 45 For an example, see Supreme Sharia Court to District Sharia Court in
Tešanj (November 13, 1912) (ABiH, VŠS, box 29, B 1912-59, no. 776). 46 ABiH, VŠS, box 27, B 1910-24.
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Undoubtedly, Redžić himself must know best whether he knows the Turkish language well enough or not, and also undoubtedly, as a Muslim and a sharīʿa judge, he would like to know this language well enough to be able to issue his ilams [Bosnian, “verdict”] in this language according to the regulations, and all the more so, as cer- tainly every sharīʿa judge must perceive it as a flaw if he does not know the Turkish language well enough, this flaw also does not recommend him to his superiors and therefore hinders his progress.47
With his lack of knowledge of Ottoman Turkish, Redžić was arguably an extreme example, however, his case highlights that both Muslims and non-Muslims attached symbolic importance to the use of language in official sharīʿa court documents. An- other example can be seen in the curriculum of the sharīʿa judge school established in Sarajevo by the Austro-Hungarian gov- ernment in 1887 for prospective qāḍīs. In addition to studying classical Islamic law and Austro-Hungarian law, students were taught how to compose legal documents in the sakk-i şer’î in Ottoman Turkish.48 This created tensions with the Habsburg education system’s language policy, in which Bosnian was the main language of instruction and only Arabic, as opposed to Ottoman Turkish, was taught as a foreign language at Muslim educational institutions (starting from 1885). In addition, by the end of the nineteenth century, most Muslim writers had switched to Bosnian for participating in public debates and discussions.49 Nevertheless, the Ottoman Turkish language remained in use among Bosnian Muslim intellectuals, as the above-mentioned circulation of Ottoman periodicals illustrates. This was also due to the fact that several Bosnian qāḍīs and members of the ʿulamāʾ complemented their studies at the Sarajevo Sharīʿa Judge School (Bosnian: Šerijatska Sudačka Škola) with earlier
47 Chairman Turzanski, to the Supreme Court for Bosnia and Herzegovi- na, no. 979 Praes (June 29, 1911) (ABiH, VŠS, box 27, B 1910-24).
48 Raspored predmeta po časovima i nastavnicima šk[ole]. 1900.–1908. god. (ABiH, Fond Šerijatska sudačka škola Sarajevo, box 49, 3). On the subject of the term sakk and its meaning, see durMišević, supra note 7 at 113n68.
49 Dierks, supra note 10 at 175–76, 200–2.
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or later studies in the Ottoman Empire, and therefore, possessed excellent knowledge of the Ottoman Turkish language.50
All the same, the use of the Ottoman Turkish language in the verdicts issued by sharīʿa courts was not without controver- sy. With the rise of the Muslim autonomy movement around the turn of the century, the state of the Islamic legal system became a pressing topic in negotiations between representatives of the movement and the Habsburg government. During a 1908 dis- cussion on potential reforms of the sharīʿa courts, the question of language and form in the courts’ rulings was raised. Adal- bert Shek, the chair of the Justice Department at the provincial government (the highest administrative institution in Bosnia), supported the demands of conservative Muslim elites like Šerif Arnautović of the Muslim autonomy movement to maintain the traditional form of the sakk-i şer’î. Shek stated that “pragmatic sharīʿa matters must remain as they have been from time imme- morial.”51 At the same time, he acknowledged that communica- tion with other authorities could be in different forms and thus, also in Bosnian. The qāḍī Hilmi Hatibović, however, countered that the sakk-i şer’î was not prescribed by the sharīʿa and there- fore, the form of sharīʿa court judgments could be modernized. Despite this, he did not object to retaining the sakk-i şer’î (in Ottoman Turkish).52
Proponents of maintaining sakk-i şer’î may have recog- nized that any alteration in the language and format of official sharīʿa court documents could have direct and undesirable le- gal ramifications. For example, Bećić has highlighted that the introduction of land registers (Bosnian: gruntovnica) between 1885/86 and 1910 resulted in the registration of mukataalı vakıf property (OT, buildings on waqf lands subject to rent) as pri- vate ownership of tenants. Despite protests from the Muslim
50 Apart from the reis-ul-ulema Džemaludin Čaušević (1914–30), these also applied, among others, to the following supreme qāḍīs: Salih Mutapčić, Hilmi Hatibović, and Ali Riza Prohić. Bumann, Contesting, supra note 9 at 167.
51 Enquete über die Reform der Scheriatsgerichte abgehalten vom 2. März 1908 bis 27. April 1908: II. Zapisnik od 9. marta 1908 sastavljen kod zemaljske vlade za Bosnu i Hercegovinu u Sarajevu, sa članovima ankete u pitanju reorganiza- cije šerijatske sudačke škole, te šerijatskih sudova prve i druge molbe, p. 25 (National and University Library Zagreb (NSK), Sign. R 5698).
52 Id. at 24–25.
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community against this transformation of ownership structures in legal practice, the civil courts, which had jurisdiction over prop- erty relations, upheld the changes.53 As noted above, Habsburg authorities only considered the realms of marriage, family, and inheritance to be within the purview of sharīʿa courts, in which they would not directly interfere. The civil courts, in contrast, often applied Austrian laws for the regulation of civil matters in practice, although de jure much of the Ottoman Tanzimat legis- lation, including the Mecelle, remained in force.54
Despite tendencies to retain the Ottoman Turkish lan- guage and style in sharīʿa court records, in practice changes were manifold, as many sharīʿa court documents were issued in Bosnian. This is also reflected in the available archival material of the Supreme Sharīʿa Court as well as selected local district sharīʿa courts. Even though Ottoman Turkish is common in the documents written by qāḍīs during the very first years of the oc- cupation, starting from the late 1880s, more documents appear in Bosnian. Mostly, the sharīʿa courts used the same preprint- ed forms as found at other Habsburg courts. The prevalence of Bosnian in archival documents is also, in part, attributable to ar- chival practices, according to which the documents of the local district sharīʿa courts were not systematically archived. Even though individual document collections are currently being sort- ed, organized, and indexed, only a few documents from specif- ic years have been handed down for local first instance sharīʿa court proceedings; whereby the archival holdings do not contain any sicils (the traditional Ottoman qāḍī court registers).55
Apart from that, the archival holdings of the Supreme Sharīʿa Court contain communications between the first instance district court and the appeal body and rarely include any official
53 Mehmed Bećić, Pretvaranje mukata vakufa u Bosni i Hercegovini u privatno vlasništvo posjednika, 17 godišnJak Pravnog Fakulteta u saraJevu 33 (2019).
54 Bećić, supra note 25 at 87–113. 55 See, for example, the fonds of the Supreme Sharīʿa Court in Saraje-
vo as well as of local district sharīʿa courts in Sarajevo, Mostar, and Tuzla: ABiH, VŠS, 1879–1918; Historical Archive Sarajevo (HAS), Kotarski Šerijatski sud Sara- jevo, 1882–1916; Archive of the Canton of Hercegovina-Neretva, Mostar (AHNKŽ), Kotarski Šerijatski sud Mostar, 1888–1918; Archive of the Canton of Tuzla (ATKT), Kotarski Šerijatski sud Tuzla, 1894–1918.
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Forging a Habsburg Islamic Legal System
documents, such as an ilam or hudžet (Bosnian, “deed”), issued by local qāḍīs.56 Thus, the Ottoman legal heritage was only partially preserved, while Habsburg standards of language and court documentation to a great extent replaced it. This was ac- companied by some changes in the legal practice of the sharīʿa courts, such as the form of court proceedings or the role of legal sources, as discussed in the following section.
proCEduralization and lEgal formaliSm
While some elements of the Ottoman Islamic legal tradition were retained during Austro-Hungarian rule, significant chang- es were made to sharīʿa court proceedings. At the local district level, court proceedings continued to be conducted orally in front of plaintiffs, defendants, witnesses, and experts, following the provisions outlined in the Mecelle.57 As the Mecelle lacked provisions for appeal procedures, Austrian procedural law was adopted by the Supreme Sharīʿa Court, which was regulated by special laws and decrees.58 These stipulated that the Supreme Sharīʿa Court should make decisions based on written appeals and other court documentation collected during the proceedings at the local sharīʿa court.59 During its legal review, the Supreme Sharīʿa Court also evaluated compliance with these procedur- al regulations such as the proper composition of protocols and court documentation.
In practice, not all qāḍīs followed these provisions in detail, instead acting as the first point of contact when conflict arose. Often, they attempted to mediate conflicts outside of court. For example, in the spring of 1906, a marital dispute between Hamid Pašić, a shoe merchant from the town of Tešanj, and his wife Rašida was settled informally by Qāḍī Abid Sadiković. The disagreement was related to financial matters, but the exact circumstances cannot be reconstructed from archival materials.
56 See ABiH, VŠS, 1878–1918. 57 FranJo kruszelnicki, PostuPak Pred šeriJatskiM sudoviMa u bosni
i hercegovini: otisak iz “MJesečnika” broJ 11 i 12 iz g. 1916 i broJ 1, 2 i 3 iz g. 1917, 37–48 (1917).
58 karćić, supra note 5 at 121–22. 59 kruszelnicki, supra note 57 at 49–54.
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Compared to several other archival files, this one, with thirty pages of documents in Bosnian, contains quite a large amount of information. This includes a written appeal by Hamid Pašić submitted to the Supreme Sharīʿa Court, protesting the actions of Qāḍī Sadiković and his court clerk Mustafa Handžić, state- ments submitted by Sadiković and Handžić retorting Pašić’s complaint, two short messages from the Supreme Sharīʿa Court to the District Sharīʿa Court in Tešanj, as well as one notice from the Tešanj District Office to the Supreme Sharīʿa Court.60
The contradictory statements contained in the file allow only a few conclusions to be drawn about the case: The couple had a similar dispute several months earlier, therefore, Qāḍī Sa- diković decided in the most recent marital conflict against a reg- ular court hearing in favor of an informal agreement between the two parties. In the end, the spouses reconciled, however, Hamid was displeased with how the qāḍī had interfered. More specif- ically, he claimed that the qāḍī and his clerk had urged him to divorce Rašida. The Supreme Sharīʿa Court’s ensuing investiga- tion revealed that the qāḍī had violated legal regulations by me- diating outside of court, as opposed to initiating a regular court hearing, including its proper written documentation. In its final decision, the Supreme Sharīʿa Court refrained from intervening but warned that in further suits, the qāḍī had to act properly and document his actions in writing or face the consequences.61
Less than a year later, however, Qāḍī Sadiković again ig- nored procedural regulations: In March 1907, Ejub Bajraktare- vić sent a telegram to the Supreme Sharīʿa Court, complaining about Qāḍī Sadiković’s misconduct. He alleged that Sadikov- ić, without an official court hearing and assisted by police, had forcefully returned his cousin’s fiancée to her father and prevent- ed the two from marrying. According to the plaintiff, this action was unlawful and violated “religious and legal institutions.”62 In the subsequent investigation, it was found that Ejub’s cous- in had practiced the widespread tradition of “bride kidnapping” (Bosnian: otmica) and had taken his fiancée Zineta Kapetanović
60 ABiH, VŠS, box 25, B 1906-13. 61 Id. 62 Telegram from Ejub Bajraktarević, to the Supreme Sharīʿa Court
(March 30, 1907) (ABiH, VŠS, box 26, B 1907-19).
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Forging a Habsburg Islamic Legal System
(with her consent) to his abode during the night. As a result, Zi- neta’s father had asked Qāḍī Sadiković to intervene. Sadiković justified his direct intervention without a formal court hearing by pointing to the inconvenient timing of the event at three hours after sunset. Moreover, he claimed that since the two families belonged to rival political factions, the elevated potential for vi- olence had necessitated an immediate response. The Supreme Sharīʿa Court took note of this justification, however, did not pursue the matter further against Sadiković. This might have been owing to the fact that he had filed an official report with the District Sharīʿa Court in Tešanj immediately after the incident to justify his (otherwise) unlawful actions.63
These cases demonstrate that the Supreme Sharīʿa Court focused on ensuring proper procedure in local sharīʿa courts. However, this supervision of qāḍīs by the Supreme Sharīʿa Court stands at odds with the common description of tradition- al premodern Islamic jurisprudence as a mediation mechanism within local communities that operated outside of government control. Local conflicts within the neighborhood, or mahala, were typically resolved through informal arbitration by the qāḍī, village elder, or imam. As a result, disputes could often be set- tled without formal court intervention. Similarly, a qāḍī’s ruling generally aimed at reaching a compromise that preserved social equity within the local community, rather than exclusively fa- voring one party.64
Nevertheless, as early as the eighteenth century, the juris- diction of qāḍīs in the Ottoman Empire came under greater state administrative control,65 and the Tanzimat reforms, as described previously, increasingly centralized the Ottoman legal system, creating a multilevel judicial system with formal appeal bodies and widespread oversight mechanisms. Despite these changes,
63 ABiH, VŠS, box 26, B 1907-19. 64 See, e.g., wael b. hallaq, an introduction to islaMic law 57–64
(2009); leslie P. Peirce, Morality tales: law and gender in the ottoMan court of anTaib 4–8, 142 (2003).
65 See, e.g., Rossitsa Gradeva, On Judicial Hierarchy in the Ottoman Em- pire: The Case of Sofia, Seventeenth–Beginning of Eighteenth Century, in waR anD peace in Rumeli: 15Th To The beginning of 19Th cenTuRy 151 (Rossitsa Gradeva, ed., 2010); hallaq, supra note 64 at 93–103.
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qāḍīs did not entirely forfeit their traditional role as mediators. The two court cases involving Qāḍī Sadiković highlight how qāḍīs continued to remain the first point of contact in local con- flicts and that informal arbitration was still common.
The process of proceduralization fostered by the supervi- sory role of the Supreme Sharīʿa Court was not, however, a sim- ple top-down process. Rather, locals seeking justice increasingly turned to the Supreme Sharīʿa Court with procedural claims. This was closely related to the increased involvement of lawyers in sharīʿa court proceedings. In the tradition of Islamic law, profes- sional lawyers did not exist, although there were some forms of legal representation in court. This is often attributed to the fact that sharīʿa courts tended to reach solutions that were agreeable to all parties involved, thus favoring arbitration over adjudication. Avi Rubin explains the rise of professional lawyers in Ottoman courts with the consolidation of legal formalism in the 1870s. However, professional lawyers in the Ottoman Empire provided their services for legal representation not in Sharia courts, but in the newly developed Nizamiye courts, which fostered legal for- malism with their inherent system of judicial review.66
In Habsburg Bosnia, legal representation was formally regulated as early as 1883, setting legal standards for the offi- cial recognition of lawyers and strictly limiting their number.67 However, official documents indicate that civil courts regular- ly ignored these standards and allowed legal representation by unauthorized persons. More interestingly, the Attorney Regula- tions of 1883 only required candidates to pass an examination covering all civil and criminal law, as well as financial and ad- ministrative law. Knowledge of Islamic law was not a necessity, suggesting that lawyers were not specifically provided or envi- sioned for sharīʿa courts.68
Nonetheless, we can observe that lawyers in Habsburg Bosnia increasingly represented parties at sharīʿa courts. For example, two brothers from Sanski Most, Sulejman-beg and Ibrahim-beg Biščević, wanted to prevent the marriage of their
66 avi rubin, ottoMan nizaMiye courts: law and Modernity 102–3 (2011).
67 Bećić, supra note 25 at 113. 68 aDvocaTen-oRDnung füR boSnien unD Die heRcegovina 4 (1883).
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sister to Sulejman Bilajbegović. They first claimed that their sister was only 13 years old when she was allegedly abducted and forced to marry Sulejman Bilajbegović. In addition, they asserted that the marriage violated the Islamic legal principle of equality (OT: küf[ü]v; Ar. kufʾ), which required both spouses to be of equal religious, social, and financial status. To underline their claims, the brothers hired Halid-beg Hrasnica, a lawyer, to file an appeal against the local qāḍī’s approval of their sister’s marriage in early 1913.69
Hrasnica had studied law in Vienna and returned to Sa- rajevo after graduating, where he opened a law office. Although he had no official training in Islamic law, he agreed to represent the two brothers at the sharīʿa court. Their appeal was based on an alleged failure to comply with procedural requirements, and stated that the original verdict did not specify how the inves- tigation was conducted, who the witnesses were, and how the “marriageability” of the allegedly 13-year-old child had been determined. It also criticized the fact that the witnesses suggest- ed by the brothers had not been questioned. Taken together, the written appeal decried the entire process as flawed and that the proceedings had been conducted “superficially.”70
The concept of formal legalism was not widely adhered to in sharīʿa courts. Historically, Ottoman qāḍīs enjoyed signif- icant discretion and were not required to provide a justification or legal basis for their rulings. However, the Ottoman codifica- tion efforts in the nineteenth century brought greater standard- ization of court procedures and legal formalism, primarily in the Nizamiye courts.71 Despite this, qāḍīs in Habsburg Bosnia were not necessarily bound by strict legal formalism and were not obliged to validate the legal basis of their verdicts. For in- stance, even though Qāḍī Sadiković had been admonished on several occasions by the Supreme Sharīʿa Court for violating
69 ABiH, VŠS, box 29, B 1912-54. 70 Appeal by Sulejman Biščević and Ibrahim Biščević submitted at the
District Sharīʿa Court in Sanski Most (January 18, 1913) (ABiH, VŠS, box 29, B 1912-54).
71 Avi Rubin, The Positivization of Ottoman Law and the Question of Continuity, in STaTe law anD legal poSiTiviSm: The global RiSe of a new paRa- Digm 162 (Badouin Dupret and Jean-Louis Halpérin, eds., 2022).
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procedural regulations, it upheld his verdict in the appeal filed by Hrasnica.72
The Supreme Sharīʿa Court’s ruling, in turn, followed its usual formalistic approach, carefully stating the legal basis of its decision. As a result, the court dismissed the appeal and upheld the verdict of the local qāḍī by pointing out that both spouses met the criteria of equality, which had been confirmed by the sharīʿa court in Sanski Most, based on oral testimony. The Supreme Sharīʿa Court also referred to two important legal sources, the Dürer of Molla Hüsrev (that is, Durar al-ḥukkām fī sharḥ Ghu- rar al-aḥkām by the fifteenth-century scholar Mullā Khusraw), and the fatwā collection of Kadîhan (Fakhr al-Dīn al-Qāḍīkhān, d. 1196), both of which were well-known standard works in the Ḥanafī legal tradition and included in seventeenth-century bib- liographical compilations of the Ottoman imperial canon.73 On the other hand, the Supreme Sharīʿa Court stated that the plain- tiff’s sister was of marriageable age and could therefore marry whomever she desired, referencing the Mecelle.74
The use of a combination of legal sources, including the Ottoman Ḥanafī canon from the seventeenth century and Tan- zimat codifications, was common in Habsburg sharīʿa courts. Indeed, Habsburg administrators published in 1883 a manual on Matrimonial, Family, and Inheritance Law of the Moham- medans according to the Ḥanafī Rite, based on a compilation by Muḥammad Qadrī Bāshā, an Egyptian Islamic scholar, but never formally codified it into Islamic law for use in sharīʿa courts.75 Instead, the provincial government issued additional regulations, which were used alongside classical Ḥanafī legal works and Ot- toman Tanzimat laws as sources in sharīʿa courts.76
The Supreme Sharīʿa Court’s formal and detailed ap- proach to citing the legal basis of its ruling was strengthened by
72 ABiH, VŠS, box 29, B 1912-54. 73 guy burak, the second ForMation oF islaMic law: the hanaFi
School in The eaRly moDeRn oTToman empiRe 132–35, 149, 234, 240 (2015). 74 Message of the Supreme Sharīʿa Court, to the District Sharīʿa Court in
Sanski Most (March 26, 1913) (ABiH, VŠS, box 29, B 1912-54). 75 See eherecht, FaMilienrecht und erbrecht der MohaMedaner
nach hanefiTiSchem RiTuS (1883). 76 durMišević, supra note 7 at 80–84.
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the fact that the Habsburg authorities had implemented Austrian procedural law for court proceedings at this appeal body. Con- sequently, the latter’s records to a large extent reflected Austrian procedural concepts.77 Still, the supreme qāḍīs did not refer to concrete legal texts and sources in every judgment they handed down. When the Supreme Sharīʿa Court could not ascertain a need to specify their legal sources or was not explicitly asked to do so, it included only a short formulation as to whether a certain set of facts complied generally with the “sharīʿa regu- lations” (Bosnian: šerijatski propisi) or the “sharīʿa law” (Bos- nian: šerijatski zakon).78
Moreover, citing legal sources and texts for the inter- pretation and application of Islamic law was also practiced in the Ottoman judiciary. According to Guy Burak, referring to authoritative texts of the Ḥanafī legal tradition dates to the sixteenth century and was accompanied by supervisory mech- anisms. This was particularly evident in the case of provincial muftīs, who were expected to cite the texts they relied on for their rulings.79 In the same vein, Rubin has observed a “posi- tivization of Ottoman law” in the Nizamiye courts of the late nineteenth century, which partially drew on previous practices but was also inspired by French models. Still, he argues that older practices could change their meanings in the new setting of positivist legalism.80 Similarly, the following section claims that references to Ḥanafī legal sources should not be seen only as a consequence of formal procedural requirements but also a means through which Bosnian qāḍīs could maintain their legal authority under Habsburg rule.
77 karćić, supra note 5 at 121–22. 78 See, for example, the following cases: Supreme Sharīʿa Court, to the
District Sharīʿa Court in Jajce (February 1, 1883) (ABiH, VŠS, box 17, B 1883-6, p. 12); Supreme Sharīʿa Court, to the Provincial Government (October 13, 1898) (ABiH, VŠS, box 88, E 1898-49).
79 burak, supra note 73 at 130–35. 80 Rubin, supra note 71 at 150–77.
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nEgotiating lEgal authority
Despite the growing standardization and legal formalism in sharīʿa courts, the Ḥanafī legal doctrine continued to be applied in court practice. Habsburg reforms of sharīʿa courts did, how- ever, affect the interpretation of Islamic law, particularly in re- solving disputes pertaining to the limited jurisdiction of sharīʿa courts or legal reform. Historically, Islamic law was known for its diversity of legal interpretations, relying on a system based on divine revelation, a vast juridical literature, and authoritative legal interpretations. The sharīʿa , which encompasses not only legal norms but also general rules for Muslim life, such as reg- ulations for prayer, could not easily be divided into individual areas of law, making it difficult to limit its scope solely to mar- riage and family. This resulted in multiple interpretations and, at times, conflicting legal opinions, particularly regarding the scope of Islamic law under Austro-Hungarian rule. These issues were frequently encountered in cases of interreligious marriag- es, concubinage, extramarital sexuality, and paternity.81
This state of affairs generated confusion, particularly among Habsburg officials and judges, who were mostly unfa- miliar with Ottoman and Islamic legal traditions and who at- tempted to standardize sharīʿa court decisions and legal opin- ions by documenting them. This included, on the one hand, the compilation of the abovementioned Matrimonial, Family and Inheritance Law of the Mohammedans according to the Ḥanafī Rite.82 It made the basic Ḥanafī legal principles understandable for Habsburg judges that had mostly come to Bosnia from oth- er parts of the empire and were familiar with codified Austrian civil law.83 On the other hand, the Habsburg administration cre- ated a legal repository for future use by registering and archiving the court files of the Supreme Sharīʿa Court. Its records also reveal that judges referred to prior rulings, judgments, and le- gal opinions stored in this administrative archive for guidance
81 See Bumann, Marriage, supra note 9; Bumann, Contesting, supra note 9; Kasumović, supra note 9; Younis, “Nezakonita,” supra note 8.
82 See eheRechT supra note 75. 83 Bećić, supra note 25 at 84–85, 99–100.
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in resolving then current legal matters. Owing to these factors, Islamic legal practice under Austro-Hungarian administration witnessed the amalgamation of two different legal cultures and traditions—the Ḥanafī and Habsburg.
As Paolo Sartori has documented for Islamic legal cul- ture under Russian rule in Central Asia,84 Habsburg authorities also expected definitive legal opinions from qāḍīs. However, Islamic law was characterized by a variety of opinions, de- spite the growing canonization of the Ḥanafī school in the Ot- toman Empire since the sixteenth century.85 Nevertheless, the Habsburg government did not codify Islamic law in regard to marriage and family, making it difficult to enforce an Islam- ic legal orthodoxy from the top down. Instead, they relied on the expertise of local Muslim legal scholars for Islamic legal questions, enabling the latter to retain their legal authority and continue to apply the Ottoman Ḥanafī legal tradition.
This was demonstrated in the 1901 case of Avdo Ko- lašović. The Supreme Court sought the Supreme Sharīʿa Court’s opinion on the religious affiliation and jurisdiction of this illegitimate child, born to a Muslim father and non-Muslim mother. Nur Hafizović and Sulejman Šarac, the supreme qāḍīs, stated that, as the child of a Muslim parent, Avdo was Mus- lim. Their opinion was that the jurisdiction for guardianship must align with religious confession, meaning that the sharīʿa courts had jurisdiction in the case. They also emphasized that the guardian must be a Muslim, and the non-Muslim mother had to raise the child in the Islamic faith until the age of sev- en.86 Although the supreme qāḍīs provided references to classi- cal Ḥanafī collections of fatwās, including the works of Muftī Ibn ʿĀbidīn from Damascus (1784–1836), and to the Mecelle, their legal opinion generated confusion among the non-Muslim supreme judges.
They had consulted a similar case from a decade earlier, in which the responsible supreme qāḍīs had reached a slightly
84 See Paolo sartori, visions oF Justice: sharīʿa and cultural change in RuSSian cenTRal aSia 250–305 (2016).
85 On the creation of an Ottoman Ḥanafī legal canon, see burak, supra note 73.
86 ABiH, VŠS, box 95a,. E 1901-24.
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different opinion. Then, the Supreme Sharīʿa Court had con- curred with a Supreme Court ruling that a Catholic guardian should be appointed for the illegitimate children of a Muslim father and a recently deceased Catholic mother.87 Due to these ambiguities, the Supreme Court asked Hafizović and Šarac to explain the difference vis-à-vis the previous case and to trans- late the exact Islamic legal stipulations they referred to in their opinion in Kolašović’s case.
The Supreme Sharīʿa Court subsequently clarified that the 1892 opinion, addressing the legal relationship between a fa- ther and his illegitimate child, was limited to the realm of kinship and inheritance, and thus did not broach the subject of religious affiliation. To support their December 1901 opinion, the supreme qāḍīs included Arabic quotes in Latin transliteration from au- thoritative Ḥanafī works, which they also translated into Bos- nian. Hafizović and Šarac quoted two passages from the Dürer, a work that compiled and explained the Ḥanafī doctrine’s most im- portant legal opinions and one of the most important legal com- mentaries in the late nineteenth century alongside the Mülteka (the Multaqā ’l-abḥur of Ibrāhīm al-Ḥalabī). They also referred to a passage from ʿAlāʾ al-Dīn al-Ḥaṣkafī’s seventeenth-centu- ry al-Durr al-mukhtār and three passages from Ibn ʿĀbidīn’s nineteenth-century Radd al-muḥtār ʿalā ’l-Durr al-mukhtār, a commentary on the former. Both works were considered author- itative and regularly cited in sharīʿa court rulings in Bosnia.88
The case’s ultimate outcome is not documented in the archives, however, what can be ascertained shows that the Ot- toman Ḥanafī legal tradition remained in use under Habsburg rule. At the same time, it is possible to see that the efforts of Habsburg officials to standardize and regulate Islamic jurispru- dence were dogged by their lack of expertise in Islamic law and over-reliance, if not outright dependance on the knowledge and interpretation of Bosnian qāḍīs. As a result, the Muslim su- preme qāḍīs were able to maintain their authority in interpreting Islamic law and to continue applying the Ḥanafī legal tradition
87 ABiH, VŠS, box 65, E 1892-8. This court case has been described in greater detail in Younis, “Nezakonita,” supra note 8 at 51–52.
88 ABiH, VŠS, box 95a, E 1901-24; durMišević, supra note 7 at 70–72, 103, 111–14.
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with some adaptations to the legal practices prevalent in the Habsburg Empire. These modifications included references to codified Islamic law, such as the Mecelle and the 1883 Aus- tro-Hungarian compilation of Ḥanafī legal norms on marriage, family, and inheritance.
In fact, this tendency to modernize and codify Islamic law had already begun during the Ottoman Tanzimat reforms, when legal codifications of Islamic law, such as the Mecelle, were drafted.89 The difference in the Habsburg period was that the qāḍīs were supervised by state officials who sought to stan- dardize legal opinions and sources but who lacked sufficient knowledge of Islamic jurisprudence. As a result, Bosnian qāḍīs had to present their legal opinions in a form that was understand- able to Habsburg judges and officials, which meant including references to authoritative legal works and codifications of Is- lamic law translated into Bosnian. Through this process, Bos- nian qāḍīs were able to retain their legal authority.
However, when we examine attempts to reform the in- terpretation and application of Islamic law, we see that the qāḍīs were unable to significantly deviate from established le- gal practices. Often, explicit approval from above, including the Supreme Sharīʿa Court, the Ulema-Medžlis, and even the Habsburg provincial government, was necessary to bring about legal innovations and new practices. For example, in the mid- 1890s, several district qāḍīs turned to the Supreme Sharīʿa Court because of the growing number of deserted wives. Since many of their husbands had emigrated to the Ottoman Empire, these women had been left without property or alimony, while also being both destitute and unable to remarry.
The Ḥanafī legal school (OT: mezheb; Ar. madhhab) followed in Bosnia had rather unfavorable provisions for such situations: A wife could only dissolve her marriage to a missing husband if he was declared dead. In the absence of official doc- umentation, Ḥanafī jurists generally held that this was possible after a period of ninety to 120 years, making divorce unviable for
89 On the emergence of legal positivism in the Ottoman Empire during the nineteenth century, see Rubin, supra note 71.
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abandoned women.90 A qāḍī from the town of Visoko suggested in 1894 that in such cases the Mālikī doctrine, which allowed the dissolution of a marriage if the husband was absent and his whereabouts were unknown for at least four years, should be applied. After the Ulema-Medžlis issued a similar legal opin- ion, the Supreme Sharīʿa Court ruled on December 30, 1895, that in such serious cases, the qāḍīs could refer to the Mālikī school, which allowed the dissolution of a marriage under the above-mentioned conditions.91
Not all women who had been abandoned by their hus- bands were eligible for divorce, however. For example, if they had been left less than four years earlier or if they knew the whereabouts of their husbands, they could not file for divorce. The outbreak of World War I increased the number of such wom- en due to the male population’s mobilization and the ensuing economic hardship, reigniting debates about possible reforms of Islamic divorce. In this context, the reform-oriented Bosnian reis-ul-ulema Džemaludin Čaušević was inspired by a decision of the meşihat (OT, the office of the şeyhülislam) in Istanbul to adopt Ḥanbalī provisions allowing women to divorce if their husband had deserted them more than twelve months previously and left no property for their support. This facilitation of divorce was introduced by a fatwā issued by the şeyhülislam on Februa- ry 28, 1916, which became effective by an irade-i seniyye (OT, “imperial rescript”) on March 5, 1916.92 After this legal reform, in mid-1916, Čaušević consulted with the şeyhülislam Ürgüplü Mustafa Hayri Efendi and proposed to do the same for Habsburg Bosnia. Therefore, the Supreme Sharīʿa Court drafted a simi- lar decree, which was issued as a circular to all district sharīʿa courts after receiving formal approval from the provincial gov- ernment in January 1917.93
90 Selma Zečević, Missing Husbands, Waiting Wives, Bosnian Muftis: Fatwa Texts and the Interpretation of Gendered Presences and Absences in Late Ot- toman Bosnia, in woMen in the ottoMan balkans: gender, culture and history 344–49 (Amila Buturović and İrvin C. Schick, eds., 2007).
91 ABiH, VŠS, box 1, A 1895-10. 92 Nihan Altınbaş, Marriage and Divorce in Early Twentieth Century Ot-
toman Society: The Law of Family Rights of 1917, 143–46 (2014) (Ph.D. dissertation, İhsan Doğramacı Bilkent University).
93 ABiH, VŠS, box 31, B 1916-2; ABiH, VŠS, box 2, A 1917-1.
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Achieving legal solutions by borrowing from another le- gal school, a phenomenon known as takhayyur, was common in the late nineteenth-century Muslim world in order to reform Islamic legal practices.94 Already in the mid-eighteenth century, as Selma Zečević has pointed out, some Bosnian muftīs found it permissible for a woman to change legal school to obtain a divorce from a missing husband.95 However, there were some general obstacles to legal borrowing in Ottoman court practice. Judith Tucker has explained how in eighteenth-century Otto- man Syria and Palestine, Ḥanafī judges strictly followed Ḥanafī doctrine, according to which deserted women seeking a divorce would turn to Shāfiʿī or Ḥanbalī judges, who would then ap- ply the more favorable provisions of their respective schools, allowing for the marriage’s annulment in cases of desertion and nonpayment of alimony.96
Yavuz Aykan, on the other hand, has shown that some muftīs considered it impermissible to turn to other legal doc- trines for a divorce. For example, the muftī of Medina Esad al- Medeni (d. 1704), wrote a fatwā according to which a Ḥanafī woman could not go to a judge of another legal school for a divorce. However, he found a case from 1664 in which a woman from the city of Amid (modern-day Diyarbakır) converted to the Shāfiʿī school to obtain a divorce. Yet, the annulment of the mar- riage was performed by a müderris (OT, a religious professor) of the Shāfiʿī school and not by a judge of the Ottoman Ḥanafī court. Aykan views this as an indication of the limited authority of Ottoman qāḍīs, who, as judges of Ḥanafī institutions, could not easily turn to other schools of jurisprudence.97
Such limited borrowing between legal schools is also evident in Habsburg Bosnia, where qāḍīs sought explicit per- mission from above to apply other doctrines. This indicates that
94 Fikret karčić, društveno-Pravni asPekt islaMskog reForMizMa: Pokret za reForMu šeriJatskog Prava i nJegov odJek u JugoslaviJi u PrvoJ Polovi- ni xx viJeka 208–10 (1990).
95 Zečević, supra note 90 at 348. 96 Judith e. tucker, in the house oF the law: gender and islaMic
law in oTToman SyRia anD paleSTine 83–84 (2019). 97 yavuz aykan, rendre la Justice à aMid: Procédures, acteurs et
doctrines dans le contexte ottoMan du xviiièMe siècle 164–66 (2016).
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the Bosnian qāḍīs adhered to legal doxa, which generally crys- tallized in the Ottoman Empire in the late nineteenth century and eventually led to various codifications of Islamic law, such as the Mecelle.98 Although Islamic law in the fields of marriage and family was not codified by the Habsburg authorities, Aus- tro-Hungarian officials were supportive of issuing decrees that outlined clear provisions for regulating Islamic marriage and di- vorce, especially when it involved borrowing from other legal doctrines not traditionally practiced in Bosnia.
ContESting loCal QāḍīS
As outlined above, modifications to the Islamic legal system made by the Habsburg administration were contested among Bosnian Muslims and actively challenged by the Muslim au- tonomy movement. Nevertheless, Bosnian Muslims did use the newly established legal institutions, such as the Supreme Sharīʿa Court, to appeal the decisions of local qāḍīs.
According to official figures, the Supreme Sharīʿa Court registered 578 petitions in 1888 and 868 in 1905.99 However, there remained several obstacles to filing a complaint with the Supreme Sharīʿa Court: Unlike the first instance proceedings in local sharīʿa courts, which were conducted orally by a qāḍī, the judges of the Supreme Sharīʿa Court decided on appeals on the basis of the documented appeal and written court documents, without the plaintiffs being physically present. Since eighty- eight percent of the Bosnian population was illiterate, at least according to official figures from 1910,100 submitting a written appeal could be problematic.
98 See, e.g., Yavuz Aykan, From the Hanafi Doxa to the Mecelle: The Mufti of Amid and Genealogies of the Ottoman Jurisprudential Tradition, in foRmS and institutions oF Justice: legal actions in ottoMan contexts (Yavuz Aykan and Işık Tamdoğan, eds., 2018), available at http://books.openedition.org/ifeagd/2334.
99 This represented approximately 3 percent (1888) and 1 percent (1905) of all petitions filed in the first instance district sharīʿa courts. The decline was main- ly attributable to a dramatic increase in the total number of petitions to the district sharīʿa courts. In 1888, 17,409 petitions were filed, compared to 75,842 in 1905. beRichT, supra note 29 at 519, 522.
100 Fabio gioMi, Making MusliM woMen euroPean 82–83 (2021).
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Alternatively, plaintiffs could file an appeal with the lo- cal qāḍī, who would write up the petition and forward it to the Supreme Sharīʿa Court.101 At the same time, written petitions allowed local plaintiffs, even from geographically remote areas, to communicate directly with the judicial authorities in Saraje- vo, bypassing the local qāḍī’s authority. This was further facil- itated by the expansion of communication infrastructure, such as efficient postal services and telegraph lines, which had been established under Ottoman rule and allowed for quick and direct correspondence with the Supreme Sharīʿa Court.102 Most com- plaints filed at the Supreme Sharīʿa Court sought a revision of a local qāḍī’s judgment, often using arguments based on Islamic legal stipulations of the Ḥanafī tradition. However, we can ob- serve that local plaintiffs used the Supreme Sharīʿa Court to con- test the local qāḍī’s authority, such as by claiming that he acted inappropriately or corruptly.
For example, in the spring of 1880, some Muslim citi- zens of Travnik filed a complaint against the local qāḍī, Jakub Arnaut, for alleged incompetence.103 Or in the town of Derventa, in 1892, Mustafa Omer Efendić filed a complaint against the local qāḍī for an alleged insult.104 In both cases, the provincial government, which had to rule on the charges, rejected them as baseless. The authorities only intervened in individual cases of accusations against qāḍīs, especially when there was evidence of embezzlement of state funds and official fees. On these oc- casions, qāḍīs were prosecuted and sentenced to prison or, for lesser offenses, reprimanded.105 The rare interventions against local qāḍīs may have been primarily driven by insufficient evi- dence and unverifiable accusations. In addition, the latter were subject to strict administrative control and, particularly during the first years of the occupation, were regularly checked for
101 The official procedural rules also explicitly provided for this possibili- ty. See kruszelnicki, supra note 57 at 49–50, 53–54.
102 On communication infrastructure in late Ottoman Bosnia, see, e.g., zaFer gÖlen, tanzîMât dÖneMinde bosna hersek: siyasî, İdarî, sosyal ve ekonoMik duruM 358–62 (2010).
103 ABiH, VŠS, box 15, B 1880-63. 104 ABiH, VŠS, box 65, E 1892-23. 105 youniS, supra note 8 at 302, 310.
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their ability and trustworthiness by Habsburg officials and the Supreme Sharīʿa Court.106 Moreover, qāḍīs had to meet the same general employment requirements as other Habsburg officials, such as swearing an oath to the emperor.107 These measures like- ly helped build a certain level of trust between the Habsburg government and local Bosnian qāḍīs.
Another reason for the administration’s non-intervention was that Habsburg officials and the Supreme Sharīʿa Court judg- es often suspected plaintiffs of weaponizing complaints about qāḍī misconduct. For example, in 1890, in response to a com- plaint filed by Asif-beg Kapetanović of Derventa against the dis- trict qāḍī, the Supreme Sharīʿa Court stated that it was common practice among local begs (noblemen) to accuse qāḍīs of petty crimes, especially when the latter did not rule in the former’s favor. Therefore, it found Asif-beg Kapetanović’s complaint un- founded and his accusations mostly untrue.108
Even if in the present case archival documents do not clearly show the extent to which the Supreme Sharīʿa Court’s assessment was actually correct, it is more pronounced in other court cases in which plaintiffs used accusations against qāḍīs as a means of supporting their legal claims. For example, Haso Bešlagić from Cazin complained to the provincial government at the end of October 1896 that the local qāḍī in Cazin, Hadžić, had offended him by insulting his wife. He also accused the qāḍī of accepting a bribe from his wife’s brother.
Several days earlier, Haso had taken Zlata Oraščanin from the village of Pištaline to marry him. However, it was disputed whether Zlata had joined Haso voluntarily, as her brother Mi- ralem intervened against the planned marriage. Specifically, he complained to the sharīʿa court in Cazin that Zlata had been ab- ducted against her will. After hearing Zlata’s testimony, District
106 Circularerlass der Landesregierung in Sarajevo vom 25. Februar 1880, Nr. 757 Just., betreffend die Gehalte der Scheriatsrichter, in Sammlung DeR Für bosnien und die hercegovina erlassenen gesetze, verordnungen und nor- malweiSungen: ii. banD. JuSTizveRwalTung 30 (1881), 30; youniS, supra note 8 at 52.
107 Verordnung über die Organisation und den Wirkungskreis der Scheri- atsgerichte, supra note 24, art. 5.
108 ABiH, VŠS, box 59, E 1890-45.
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Qāḍī Hadžić ruled that she should return to her brother, as she was both a minor and did not want to marry Haso. Nevertheless, Haso filed a complaint with the Supreme Sharīʿa Court, which subse- quently opened an investigation and questioned several witnesses to the trial, all of whom contradicted one another.
The muhtar (Bosnian, neighborhood headman) from Cazin, Osman Toromanović, confirmed the accusations against Qāḍī Hadžić, describing how during the trial he became irate and pulled down Zlata’s feredža (Bosnian, a type of garment typically worn in public by Muslim women), veil, and boots, while insulting her and Haso. On the other hand, the muhtar from Velika Kladuša, Omer Okanović said that Qāḍī Hadžić did not swear. At the same time, he questioned Qāḍī Hadžić’s judg- ment because he testified that Zlata had voluntarily gone to Haso and should be able to marry without a proxy. Qāḍī Hadžić vehe- mently denied these accusations, which were also supported by the testimony of a hodža (Bosnian, a religious teacher) from a nearby village and the Cazin Sharīʿa Court’s clerk. Because of these contradictory statements, the provincial government de- cided in May 1897 not to intervene in the matter, and Haso’s complaint was rejected.109
At other times, false accusations could have legal conse- quences: A complaint written on October 2, 1903, in the name of the “citizens of Banja Luka” accused the local district qāḍī Sadik Džumhur and a trainee at the sharīʿa court, Mehmed Ćesović, of having issued a false power of attorney for Hamid Husedži- nović, according to which the latter could manage the assets of Meleća Šibić. The latter was quickly suspected of having written the complaint, which she ultimately confirmed during interroga- tion on October 21, 1903.
The story behind the complaint was that Meleća had been placed under guardianship in 1902 owing to “prodigality” and could therefore no longer manage her property herself. As she was unsatisfied with the choice of guardian to manage her prop- erty, she appealed to the local sharīʿa court against the appoint- ment of her uncle Hamid Husedžinović. However, Qāḍī Džum- hur rejected her complaint and confirmed that Husedžinović
109 ABiH, VŠS, box 20, B 1896-22.
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should administer Meleća’s property as guardian. Subsequently, in September 1903, Meleća filed an appeal with the Supreme Sharīʿa Court against Qāḍī Džumhur’s ruling.
Nevertheless, she did not even wait for the decision of the Supreme Sharia Court and drafted the abovementioned com- plaint in the name of the “citizens of Banja Luka” on October 2, 1903 with the help of a lawyer and his clerk. In it, she accused Qāḍī Džumhur and the trainee Ćesović of abuse of office. Džum- hur, however, did not accept her slander and filed a complaint with the criminal court for “the wrongful accusation of abuse of office.” As a result, Meleća was sentenced to seven days in prison by the criminal authorities. Meleća’s appeal did cause the proceedings to be reopened, however, the result is not document- ed among the archival files.110
These cases illustrate how plaintiffs strategically used al- legations of misconduct against qāḍīs, albeit often with moderate success due to insufficient or contradictory evidence. As Sartori has convincingly shown with reference to the Islamic legal sys- tem in Central Asia under Russian rule, the tendency of local pop- ulations to portray qāḍīs as corrupt can be seen as a consequence of colonial administration. There, Russian authorities viewed lo- cal qāḍīs with great suspicion and local plaintiffs integrated their doubts into their complaints. Thus, qāḍīs became “colonial scape- goats” who were blamed for making certain legal claims.111
The situation in Habsburg Bosnia is quite similar: The Austro-Hungarian authorities often regarded the Bosnian qāḍīs as untrustworthy and established mechanisms to control them— first and foremost the Supreme Sharīʿa Court in Sarajevo. As with the other civil servants, serious misconduct among qāḍīs, delineated in a law passed in 1907, was punishable by transfer, demotion, or suspension.112 This influenced the legal conscious- ness of the local population, who were well informed that qāḍīs faced serious repercussions for misconduct. Accordingly, plain- tiffs adapted arguments in their complaints and did not base claims solely on Islamic legal principles.
110 ABiH, VŠS, box 105, E 1903-54. 111 SaRToRi, supra note 84 at 129–56. 112 youniS, supra note 8 at 303.
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Nevertheless, it should be mentioned that allegations of corruption and misconduct against qāḍīs had been widespread during Ottoman rule of Bosnia, and did not solely emerge during the Habsburg occupation. The Bosnian scholar Muhamed Emin Isević, for example, criticized the state of the administration in his treatise on The Situation in Bosnia (Ahval-i Bosna), writ- ten in the early nineteenth century, that described the qāḍīs and naibs (Bosnian and OT, a substitute judge) as extremely corrupt and incompetent.113
Plaintiffs also used other strategies to challenge the au- thority of local qāḍīs and to attempt to assert their legal claims in court proceedings. If they were dissatisfied with a qāḍī’s judgment, they appealed not only to the Supreme Sharīʿa Court but sometimes also to the Ulema-Medžlis. Such “jurisdictional jockeying” can be traced to the fact that the responsibilities of the Supreme Sharia Court and the Ulema-Medžlis for the in- terpretation and application of Islamic law were not clearly de- lineated.114 For example, some plaintiffs who wanted to appeal a decision of a local qāḍī sent their complaint directly to the reis-ul-ulema, the chief muftī and highest religious authority for Muslims in Habsburg Bosnia.115
In one case, the plaintiff even explicitly asked to be judged by the reis-ul-ulema instead of a qāḍī: Džiha Imamović, the widow of a former qāḍī from Bijeljina, wrote a letter to the reis-ul-ulema just a few days after filing an appeal against the local qāḍī’s verdict. She disagreed with the latter’s decision that she, as her son’s guardian, should give the bride’s prompt dow- er (Bosnian: mehri muaddžel; OT: mehr-i muaccel; Ar.: mahr muʿajjal) and the trousseau (Bosnian: džihaz; OT: cihaz) to her daughter-in-law. In her letter to the reis-ul-ulema, she also de- manded that her case not be judged by a qāḍī but by the reis-ul- ulema himself, stating: “I do not want a qāḍī to judge me, but the reis-ul-ulema.”116
113 Ahmed S. Aličić, Manuscript Ahval-i Bosna by Muhamed Emin Isević (Early 19th Century), 50 pRilozi za oRiJenTalnu filologiJu 232 (2002).
114 karćić, supra note 5 at 116–17. 115 See, e.g., ABiH, VŠS, box 32, B 1918-41. 116 Gjiha Imamović, rođ. Smajić, to the reis-ul-ulema, Bjeljina (March 10,
1913) (ABiH, VŠS, box 30, B 1913-15).
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Džiha presumably hoped for a more favorable ruling from the reis-ul-ulema than from the Supreme Sharīʿa Court. And her letter did have an impact on the final verdict: After initially upholding the local qāḍī’s verdict on appeal, the Su- preme Sharīʿa Court overturned the decision after the reis-ul- ulema forwarded Džiha’s letter to the appeal court. Instead, the supreme qāḍīs recommended that her son and daughter-in-law seek a mutual agreement leading to a khulʿ divorce (one initiated by the wife and granted with the husband’s consent; Bosnian and OT: hul) before the local qāḍī in Bijeljina. However, if no agree- ment could be reached, the court would have to further clarify the exact distribution of goods and money.117
ConCluSion
The integration of Islamic law into the newly established Habsburg administrative structures in Bosnia ushered in sig- nificant changes to the extant Islamic legal system. At the same time, some aspects of the Ottoman Islamic legal tradition were preserved. Based on an analysis of archival documents from the Supreme Sharīʿa Court, this article argues that the modifi- cations made by the Habsburgs led to an amalgamation of the Ottoman Islamic legal tradition with Austro-Hungarian legal concepts in court practice, paving the way for new legal under- standings and practices.
More specifically, the restructuring of the Islamic legal system under Habsburg rule granted external administrators more control over Islamic jurisdiction, while its scope was strict- ly reduced to marriage, family, and inheritance matters among the Muslim population. Concurrently, a significant part of the Ottoman Ḥanafī legal tradition, including the use of the Ottoman Turkish language and script and Ḥanafī legal provisions and tex- tual sources, continued to be applied. This hybrid legal system witnessed frequent negotiations about how Austro-Hungarian and Ottoman Ḥanafī legal practices could be combined in prac- tice or where boundaries between the two should be drawn. Si- multaneously, this fostered new legal practices, such as increased
117 ABiH, VŠS, box 30, B 1913-15.
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Forging a Habsburg Islamic Legal System
proceduralization and legal formalism at sharīʿa courts. Although the Habsburg authorities certainly made significant interventions, some of the concepts they introduced were already familiar to the Ottoman legal system. Thus, a multi-level legal hierarchy with oversight mechanisms or legal formalism could be also found in the Ottoman Empire of the late nineteenth century.
Overall, Habsburg reforms to the Islamic judiciary were met with both opposition and approval. While qāḍīs, particu- larly those serving at the Supreme Sharīʿa Court, were actively involved in promoting legal changes, the supporters of the Mus- lim autonomy movement opposed the reduced jurisdictional function of Bosnian qāḍīs. Nevertheless, local actors, includ- ing qāḍīs and plaintiffs, actively shaped the Islamic judiciary under Austro-Hungarian administration. Despite the efforts of Habsburg officials to standardize and unify Islamic legal prac- tice, Bosnian qāḍīs maintained some autonomy and the ability to further apply the Ḥanafī legal doctrine due to their legal exper- tise. Yet, their authority was simultaneously challenged by local plaintiffs who made use of the new legal institutions, such as the Supreme Sharīʿa Court, to focus on procedural and formal cor- rectness as well as on accusations of misconduct or corruption to support their legal claims.
In conclusion, the integration of Islamic law into the Austro-Hungarian administrative structures in Bosnia can be seen as a process of translation of values, knowledge, and prac- tices, resulting in a “hybridization” of the Ottoman Islamic legal tradition with Habsburg legal structures. Existing studies of Is- lamic law under Habsburg rule have primarily focused on legal norms and structures, thereby automatically emphasizing con- tinuities or ruptures.118 By zooming in on the micro-level, the present article offers a more nuanced view of the implications these changes had for Islamic legal practices on the ground. Rather than thinking solely about changes or continuities, this paper has highlighted the negotiations surrounding the amalga- mation of new and old traditions that created new meanings and practices as well as the agency that local actors had in actively shaping legal practices.
118 Karčić, supra note 5; Bećić, supra note 6.
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Equally, this article has contributed to the recently growing interest in the status of Muslim communities in the post-Ottoman Balkans. In the neighboring nation-states that emerged following the Congress of Berlin 1878, Muslims were also guaranteed religious freedom and autonomy. Similarly to Habsburg Bosnia, Islamic religious and legal institutions were integrated into the new administrative structures and thereby played a crucial role in ensuring the rights of Muslim commu- nities under Christian rule.119 However, in contrast to Bulgar- ia, Serbia, or Montenegro, Bosnia was administered by another empire, the rule of which is often characterized in a historio- graphic sense as “quasi-colonial.” It does not come as a sur- prise, therefore, that Habsburg reforms of the Islamic judiciary were, to some extent, inspired by colonial models, such as those in French Algeria. In the same vein, Islamic legal practice under Habsburg rule produced similar phenomena as in other Islamic legal systems under colonial rule, such as in Russian Central Asia. Consequently, examining Islamic legal practices under Habsburg rule can enhance our understanding of encounters be- tween Islamic law and European or other legal traditions that occurred outside the Balkans.
119 See, e.g., gReble, supra note 1; meThoDieva, supra note 11.
33
Lost in transLation? Mahr-agreements, Us CoUrts, and the PrediCament of mUsLim Women
Tobias Scheunchen University of Chicago
Abstract As a reciprocal contract, Islamic marriage (nikāḥ) furnishes rights and obli- gations for both spouses. Usually split into two portions, the deferred part of the bridal dower (mahr muʾakhkhar)—a one-time financial liability that both spouses agree on during the wedding proceedings—is customarily received by the Muslim wife where her husband seeks to divorce her unilaterally (ṭalāq). However, US courts faced with construing mahr-agreements have been reluc- tant to enforce the financial promises stipulated in such agreements. Based on evidence gathered from case law, this article argues that a combination of several factors, most importantly, the judicial anxiety to get involved in religious doctrinal interpretation, as well as the misinformed analogizing of bridal dowers to prenuptial agreements, adversely affects Muslim wom- en as courts increasingly adhere to the presumption that mahr-agreements are non-enforceable, squarely placing the burden of proof to the contrary on women. Moreover, women's financial hardship is often the immediate result of the court's refusal to uphold a husband's commitment to pay dower. As a critical feature of Islamic marriage, the agreed-on dower payment assures financial stability after divorce, predictability, and women's bargaining pow- er throughout a marital relationship. Since 2013, state legislators' partially successful endeavors to bar state courts from applying Islamic law under comity function as a compounding factor that has created dire prospects for the future of mahr-agreements in the US, posing a substantial risk not only to the institution of Islamic marriage, but also the parties’ freedom of contract.
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Contents
IntroduCtIon 36
I. settIng the sCene: MarrIage and dIvorCe In IslaMIC law 42
a. gettIng MarrIed 42
i. Requirements and procedural formalities 42
ii. Mahr-agreements 46
iii. Legal and sociological dimensions of Islamic marriage 47
b. gettIng dIvorCed 51
II. whenCe IslaMIC law? 54
a. the MultItude of IslaMIC legal opInIons and authorItIes 54 Causes unCertaInty In Courts
b. statute of frauds 56
i. Does “Islamic law” state the choice of law 56 with reasonable certainty?
ii. Should spouses commit to a foreign legal system 59 or code instead of Islamic law?
iii. Is a reference to US federal or state law more 60 reasonably certain than “Islamic law?”
c. parol evIdenCe 61
i. The essential terms of a mahr-agreement should be 61 stated, the particulars need not be
ii. The court is granted extensive liberties in construing 63 mahr-agreements under FRCP 44.1
d. statute of frauds and parol evIdenCe as gendered probleMs 64
III. blessIng or QuagMIre: relIgIous doCtrInal InterpretatIons 67
a. adjudICatIng on Matters of relIgIon Cannot be entIrely avoIded 67
b. Is the enforCeMent of ContraCtual oblIgatIons that arIse 68 froM ContraCts Made In relIgIous Contexts ConstItutIonal?
i. Outlining the Lemon test 68
ii. Does the enforcement of a mahr-agreement 69 have a non-secular purpose?
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
iii. Does the enforcement of a mahr-agreement 72 advance or inhibit religion?
iv. Does the enforcement of a mahr-agreement constitute 72 excessive government entanglement with religion?
c. the fear of oversteppIng judICIal authorIty by enforCIng 75 Mahr-agreeMents Is unfounded and the Court should endeavor to More thoroughly InQuIre wIth how MuCh relIgIous sInCerIty suCh ContraCts were Made
IV. ConstruIng Mahr-agreeMents 77
a. what Is a Mahr-agreeMeent? 77
i. Theory 1: a mahr-agreement is a premarital agreement 77
ii. Theory 2: a mahr-agreement is a simple contract 83
iii. Theory 3: a mahr-agreement is a marriage certificate 85
b. MovIng forward: IdentIfyIng alternatIves, 87 enforCIng Mahr-agreeMents
i. Spouses 87
ii. Imams and other religious authorities 88
iii. Lawyers and political activists 89
iv. Courts 89
V. new obstaCles on the horIzon: Mahr-agreeMents In 93 the shadow of antI- sharīʿa bIlls
ConClusIon 96
bIblIography 100
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Journal of Islamic Law | Spring 2021
IntroductIon
A dower1 (usually: mahr;2 sometimes: ṣadāq) or bridal gift is central to the institution of Islamic marriage. It usually
consists of a considerable financial sum or number of assets. Where a dower is stipulated, a husband must confer it to the wife directly and nobody but the wife herself. Dowers are usually split into two portions, an immediate (muʿajjal) and most often symbolic portion due before consummating a marriage, and a deferred (muʾakhkhar) portion due at the latest upon divorce or a husband’s death. Dower-splitting historically evolved to ensure the financial integrity of women in the case of divorce (ṭalāq). Because under Islamic law,3 spouses remain separate legal, financial, and social entities when married, women do not exercise the option of making alternative claims to their ex- husband’s financial assets upon divorce.
This paper argues that the ways in which US courts have construed mahr-agreements pose significant legal barriers for Muslim women to succeed in having such agreements enforced, and thus securing the financial compensations that their husbands had agreed to as part of their marriage. The current translation of Islamic marriage (and divorce) into the US legal system has been unsuccessful on at least two levels. First, by seeking to comprehend Islamic marriage through the legal categories of secular marriage, especially prenuptials, judges have not only
1 Secondary literature and courts regularly confuse dowers with dow- ries. The dower is a bridal gift that is conferred by the husband or the husband’s family to the bride. The dowry is the property that a wife brings into the marriage; Melford E. Spiro, Marriage Payments: a Paradigm from the Burmese Perspective, in 31 Journal of Anthropological Research 89, 89 (1975).
2 Throughout this paper, I provide transliterations of Arabic and Per- sian termini technici in parentheses. The transliterations are in accordance with the IJMES Transliteration System for Arabic, Persian and Turkish; accessed March 2, 2019, https://ijmes.chass.ncsu.edu/docs/TransChart.pdf.
3 It is important to note that by Islamic law, I am not suggesting a mono- lithic Islamic legal tradition but am, in fact, always referring to a multiplicity of legal, cultural and discursive traditions which conceive of themselves as Islamic. Despite this limitation, we cannot shy away from establishing certain basic understandings about Islamic marriage and mahr-agreements which most Islamic legal schools agree on.
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
infused the assumptions that secular marriage is predicated on into the institution of Islamic marriage, but also tacitly reproduced the adverse effects that prenuptials tend to have on women. Second, as a result of the mistaken analogy to secular marriage, the court’s construction of mahr-agreements systematically pushes women (and men) into settling their divorce cases under state property rules, which often diametrically contravene both spouses’ marital intent, their freedom of contract, and the nature of Islamic marriage. Furthermore, flagging equitable distribution and community property rules as the only proper legal recourse jeopardizes the livelihoods of those women whose Islamic marriage is not also registered as a civil marriage and who would, therefore, typically end up not being able to claim any financial award, neither under their mahr-agreement, nor state property rules.
This paper’s analysis shows that courts tend not to enforce mahr-agreements because
(1) they will try to refrain from interpretations of religious doctrine out of fear of violating the Establishment Clause,
(2) have public policy concerns, or (3) find the mahr-agreement to be non-compliant with
contract law requirements. While each of these reservations is in and of itself legitimate, it is important to understand how they function together as a seemingly concerted shield to dismiss the enforceability of mahr-agreements. This is especially problematic because, if one assumes that it is advantageous for women to have their mahr-agreements enforced, the undue burden to show that such agreements are enforceable is not on men, but women.
Yet case law indicates that it is not always a wife’s counsel arguing that a mahr-agreement is enforceable, primarily because US courts have more than once understood them to be mutually exclusive with state property rules. Nontheless, it is erroneous to assume that women are subjectively better off under state property rules because mahr-agreements are often considerable in amount and may significantly outweigh what ex-wives
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Journal of Islamic Law | Spring 2021
would be entitled to under community property or equitable division.4 For instance, in Soleimani, the mahr-agreement amounted to 1,354 gold coins, the equivalent of $677,000 and thus significantly exceeded what the wife was entitled to under equitable division. Also, the courts have not recognized the predictable financial security that a mahr provides to a woman and how it is conducive to her decision-making and planning in and outside of marriage. It is certainly not news that Islamic divorce in US courts has historically been messy. This messiness is reflected in the inconsistency with which courts construe mahr-agreements, and a lack of reliable precedents, legal standards, and theories of construction that a court will grant.5 As others have noted,6 courts will typically classify a mahr-agreement as either a prenuptial, a marriage certificate, or a simple contract.7 Whereas many articles and organization reports have addressed the inconsistency surrounding Islamic divorce in US courts and made propositions as to how courts should construe mahr-agreements,8 little has
4 Soleimani v. Soleimani, No. 11CV4668, 15 (Johnson County Dist. Ct. 2013).
5 See Tracie Rogalin Siddiqui, Interpretation of Islamic Marriage Con- tracts by American Courts, 41 Family Law Quarterly 639, 639 (Fall 2007).
6 See Abed Awad, Islamic family law in American courts. A rich, di- verse and evolving jurisprudence, in Elisa Giunchi, ed, Muslim Family Law in West- ern Courts 168, 170 (Routledge 2014).
7 For instance, in Akileh v. Elchahal (1996), the Court held that a mahr-agreement qualifies as an antenuptial, arguing that Florida contract law may be applied to its “secular” terms and that the stipulation of a previously agreed-on payment to the wife upon divorce, being part of these secular terms, was valid and enforceable; Akileh v. Elchahal, 666 So. 2d 246, 248 (Fla. Dist. Ct. App. 1996). Yet in 2001 in Shaban, the California Court of Appeals noted that the financial provisions of a mahr-agreement were unenforceable because it ostensibly constituted only a mar- riage certificate. The Court held that the spouses’ agreement to have “Islamic law” applied to their contract is “hopelessly uncertain as to its terms and conditions” and applied state community property laws in line with California divorce laws instead; In re Marriage of Shaban, 88 Cal. App. 4th 398, 401, 105 Cal. Rptr. 2d 863, 864 (2001). Only a year later in Odatalla, the New Jersey Superior Court enforced a mahr-agree- ment on the argument that it is essentially a simple contract; Odatalla v. Odatalla, 355 N.J. Super. 305, 314, 810 A.2d 93, 98 (Ch. Div. 2002).
8 See Emily Sharpe, Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: a Roadmap for U.S. Courts, 14 The Georgetown Journal of Gender and the Law 189 (2013) (arguing that mahr-agreements should be interpreted as simple contracts under Islamic law and that mahrs should not be factored into eq-
39
Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
been written on the gendered and highly unequal consequences that result from the court’s dismissal of mahr-agreements.9 This paper contributes to the study of Islamic divorce in the US legal system by trying to fill this literature gap. Specifically, it argues that the impacts of the courts’ rulings are gendered and adversely affect women because they will usually relinquish either their mahr-claim or alternative claims that might have existed under state property rules.
Focusing on Islamic marriage as a case study, we can thus catch a glimpse of the legal, social, and cultural reconfiguration that occurs in the process of translating legal institutions. As will be apparent, in that process, new meanings are being created; meanings that redefine Islamic marriage and turn the individuals practicing it into virtually new legal and sociocultural subjects.
This paper makes three normative suggestions. First, it suggests that instead of construing mahr-agreements as prenups or marriage certificates, courts should treat them as simple contracts under Islamic law. The simple contract interpretation should be combined with the nexus-test the court applied in Chaudry v. Chaudry to determine whether a divorced wife may be entitled to additional compensations under state property rules.10 I argue that the adoption of a combined approach to dealing with mahr-agreements as simple contracts under Islamic law and the nexus-test would (1) in most cases honor the original intent of the parties to have Islamic law applied when they entered the marriage contract, (2) allow women to rely on the enforcement of their mahr-agreements, especially when divorce is initiated by the husband, and (3) lead to a fair distribution of the resources
uitable distributions of marital property). 9 Azizah al-Hibri has perhaps been most attentive to the gendered issues
surrounding Islamic marriage; Azizah Y. al-Hibri, The Nature of the Islamic Mar- riage: Sacramental, Covenantal, or Contractual, in John Witte Jr, and Eliza Ellison, eds, Covenant Marriage in Comparative Perspective 182 (William B. Eerdmans Pub- lishing Company 2005).
10 Chaudry v. Chaudry, 159 N.J. Super. 566, 577, 388 A.2d 1000, 1006 (App. Div. 1978) (arguing that if there exists a sufficiently strong nexus between the marriage and the state where the married parties resided for a substantial period of time, claims for alimony and equitable distribution will be considered even if such relief could not be obtained in the state or country granting the divorce).
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Journal of Islamic Law | Spring 2021
the parties may have additionally acquired due to changed life circumstances in the course of their marriage.
Second, I emphasize that bridal dowers need to be understood within the institution of Islamic marriage more broadly and particularly in isolation from divorce. Unlike courts in other Western countries, US courts are yet to be confronted with more challenging legal problems arising from mahr-agreements against which hitherto constructions of such agreements would be insufficient. For instance, German courts in the past dealt with the question of whether a wife is entitled to receive her mahr- payment without a divorce. The Berlin Kammergericht (KG) argued that a wife acquires ownership of her mahr when the marriage is contracted, and not when the parties are divorced. The court reasoned that mahr-claims cannot be considered contingent on the termination of a marriage. Instead, how marriage is terminated merely influences whether an unclaimed mahr-payment can be fully or partially sustained.11 Other legal issues such as whether women may claim the rate of inflation on their dowers are yet to reach US family courts.12
Third, it is necessary that courts begin to account for the social function of mahr-agreements. The distinct purpose of a mahr in Islamic marriage is to preserve equal bargaining abilities of husband and wife and enable them to make real compromises by using its material and discursive force in cases of dispute. I argue that by failing to acknowledge how gender relations and equality in Islamic marriage are intricately tied to the mahr, US courts have effectively made women who currently find themselves in Islamic marriages more vulnerable. That is, the systematic dismissal of mahr-agreements and increasing public knowledge thereof has made Muslim women more prone to be divorced with lighthearted unconcern or threatened with divorce by their husbands, and has significantly reduced their ability to
11 Kammergericht, Beschluss vom 06.10.2004 – 3 WF 177/04, accessed March 2, 2019, https://openjur.de/u/271640.html.
12 The Iranian Parliament (majles-e shora-ye eslami) resolved the issue in 1997 passing a law that provides for the indexation of mahrs; M.A. Ansari-pour, Indexation of Mahr (Dower): A Precursor of the Law of Inflation in Iran, 31 Arab Law Quarterly 187, 195 (2017).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
bargain more favorable terms in marriage. By analyzing the legal and social aspects implicated in
the enforcement of mahr-agreements, this paper argues that enforcing and ensuring the implementation of such agreements is neither unconstitutional nor creates legitimate public policy concerns for courts or legislators. To be sure, that does not mean that this paper advocates the import of other Islamic legal institutions, arrangements, or rules. Any import will have to be analyzed carefully and in light of the public policy concerns that each of them might or might not give rise to. That is to say that I fully recognize that parts of Islamic law would, without a doubt, create such concerns, particularly in the realms of equity and gender equality. Nevertheless, to understand the particular ways in which Islamic law, in spite of imposing certain structural constraints, does create agency for women is essential for courts and legislators to realize what is individually at stake for women and how the dismissal of mahr-agreements may erode the particular forms of claim-making that Muslim women have historically mobilized. This paper is divided into seven sections. Following the introductory section 1, section 2 discusses mahr-agreements in the context of marriage and divorce as practiced in Islamic law. This prelude seeks to comprehend the role of bridal dowers in the institution of Islamic marriage and anticipate how dowers organize marital relationships by creating leverage for both sides. The section shows that the practice of contracting dowers is designed to increase the bargaining power women exercise in an Islamic marriage. In sections 3 and 4, I attend to the obstacles that women face with regard to having their mahr-agreements enforced by scrutinizing the specific arguments based on which US courts usually dismiss them. Section 3 reveals that the statute of fraud and parol evidence create specifically gendered problems. Section 4 argues that the judiciary’s concerns of violating the Establishment Clause are largely unfounded, illustrating that the secular provisions of mahr-agreements can be separated neatly. In Section 5, I focus on the legal analogies and parallels courts have drawn to construe mahr-agreements. I show that courts have
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Journal of Islamic Law | Spring 2021
hitherto construed them as either prenuptials, simple contracts, or marriage certificates. I argue that the prenuptial and marriage certificate-theories are particularly unsuitable to capturing the substantive provisions intended by those agreements. These theories result in highly inequitable outcomes and put women in the position of having to choose between going after either the mahr or community property/equitable distribution and thus risk forfeiting financial compensation from their husbands entirely. Section 6 focuses on the recent anti-foreign law bills passed by several state parliaments. I argue that such legislation, despite public claims to the opposite, has increased the legal burden on Muslim women and threatens to obliterate the purpose of mahr- agreements as well as derail the institution of Islamic marriage more broadly.
I. SettIng the Scene: MarrIage and dIvorce In ISlaMIc law
a. Getting married
i. Requirements and procedural formalities
In Islamic law, marriage (nikāḥ) is a contractual agreement (ʿaqd) between a wife and husband.13 For a marriage to be contracted, a woman’s guardian (walī) usually makes an offer (ījāb) on her behalf to the family of the prospective bridegroom.
13 Kecia Ali, Marriage in Classical Islamic Jurisprudence: a Survey of Doctrines, in Asifa Quraishi and Frank E. Vogel, eds, The Islamic Marriage Contract. Case Studies in Islamic Family Law 12, 12 (Harvard University Press 2008). Islamic law knows other forms of marriage, many of which have either historically fallen out of use or are only practiced to a limited extent. The most widely known is perhaps the temporary marriage (mutʿa). This type of matrimonial agreement is practiced pri- marily among Shīʿī Muslims in Iran, Iraq, and Lebanon. A temporary marriage is con- tracted with a stipulated duration that can reach from one hour to 99 years. That is, the married parties knowingly enter a matrimonial alliance which expires after a pre- viously agreed-on duration. Although temporary marriages may seem outlandish to the Western beholder, they are rather important because they create legal frameworks within which trial period marriages, temporary sexual encounters, and sex work can be legitimized; Dietrich von Denffer, Mutʿa – Ehe oder Prostitution, 128 Zeitschrift der Deutschen Morgenländischen Gesellschaft 299, 325 (1978).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
For a marriage to be initiated, the offer must be followed by their acceptance (qubūl). Depending on several criteria, the approval of a woman’s guardian to her marriage may be considered either mandatory or recommended for that marriage to be lawful.14 The wedding itself must be conducted in the presence of witnesses (shāhid), usually two male ones or, alternatively, one male and two female witnesses.15
The issue of consent (riḍā) has historically been complicated. Judith Tucker notes that, in classical Islamic law, most Muslim jurists agreed that the consent of a bride who had reached legal majority (bulūgh) was mandatory to ensure the validity of a marriage contract.16 However, a prospective bride’s silence or laughter could be interpreted as her giving consent.17 The Sunni legal schools’ discussions of consent in marital affairs especially focus on a bride’s puberty and virginity, with each school prioritizing either or a combination of these aspects. The Ḥanafīs squarely tie consent to the attainment of puberty. If puberty has been reached, then a woman’s consent is necessary for a marriage’s validity with the implication that non-pubescent girls could be married off against their will.18 Concerning the pubescent daughter’s consent, Aḥmad ibn Ḥanbal (d. 241 H./855) held a similar position, noting that: “There is disagreement on this question. I prefer that he [the father] consult her, and if she is silent, that is her consent.”19 On the contrary, the Shāfiʿīs
14 Judith Tucker, Women, Family, and Gender in Islamic Law, 42 (Cam- bridge University Press, 2008).
15 Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and Modern Islamic Legislation 61 (Brill 2009).
16 Judith Tucker, Women, Family, and Gender in Islamic Law, 42 (Cam- bridge University Press, 2008). Legal majority was usually attained upon the body’s showing of the signs of puberty. For a discussion of the concept of legal majority (bulūgh), see Nayel A. Badareen, Shīʿī Marriage Law in the Pre-Modern Period: Who Decides for Women? 23 Islamic Law and Society 368, 378-381 (2016).
17 Burhān al-Dīn ʿAlī b. Abī Bakr al-Marghīnānī, al-Ḥidāya, quoted in Judith Tucker, Women, Family, and Gender in Islamic Law, 42 (Cambridge Universi- ty Press 2008).
18 Kecia Ali, Marriage and Slavery in Early Islam, 33 (Harvard Univer- sity Press, 2010).
19 ʿAbd Allāh b. Aḥmad b. Ḥanbal, Chapters on Marriage and Divorce. Responses to Ibn Ḥanbal and Ibn Rāhwayh, tr. by Susan A. Spectorsky, 97 (University of Texas Press, 1993).
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Journal of Islamic Law | Spring 2021
conceptually link the necessity of a girl’s legal consent to her virginity (bakāra). If a girl had lost her virginity, she could not be married off without her consent, even if she was a legal minor. As explained by al-Sarakhsī (d. c500 H./1106), the reasoning behind this is that being a non-virgin (thayyib) negates a woman’s legal guardian’s independent authority (nafy wilāyat al-istibdād) to interfere in her marital affairs.20 By implication, a woman who had reached puberty, but was a virgin, could be married off without her consent due to her virginity. The Mālikī jurist Saḥnūn b. Sāʿīd al-Tanūkhī (d. 240 H./854) notes that Mālik (d. 179 H./796) advocated against compulsion (ijbār) in marriage, “except where the father [compels] his virgin daughter, his little son, his slave girl and slave, and the guardian his orphan child.”21 Similar to the Shāfiʿī opinion, the Mālikīs took virginity to be the decisive factor concerning the necessity of bridal consent.22 On the whole, marriage without consent was less problematic in the case of pre-pubescent legal minors. Although classical legal works do consider the question of whether a non-virgin legal minor should provide consent, because male and female children were deemed to have limited legal capacity, they could mostly be married off non-consensually.23
Bridal consent was discounted by male guardianship (wilāya). A male guardian was assumed to have authority over the persons whose guardianship he possesses and would thus get involved in decisions concerning marriage. Although sometimes confused, the concept of male guardianship is distinct from a husband’s authority over his wife (qiwāma). Thanks to the genealogical study of qiwāma by Omaima Abou-Bakr, we now
20 Shams al-Dīn al-Sarakhsī, 5 Kitāb al-Mabsūṭ, 2 (Dār al-Maʿrifa, 1989).
21 Saḥnūn b. Saʿīd al-Tanūkhī, 2 al-Mudawwana al-Kubrā, 100 (Dār al-Kutub al-ʿIlmīya, 1994).
22 Kecia Ali, Marriage and Slavery in Early Islam, 34 (Harvard Univer- sity Press, 2010).
23 Judith Tucker, Women, Family, and Gender in Islamic Law, 43 (Cam- bridge University Press 2008). A guardian’s right to compulsion is eliminated when the woman whose guardianship he possesses is a spinster or was previously married. In many Muslim-majority countries including Morocco and Iraq, the right to compul- sion has been explicitly prohibited; Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and Modern Islamic Legislation 49 (Brill 2009).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
know that Muslim exegetes and jurists of the classical period, beginning with Abū Jaʿfar al-Ṭabarī (d. 310 H./923), gradually transformed the Quranic notion of men serving as women’s protectors or maintainers (qawwāmūn) into a prescriptive norm that entailed a husband’s comprehensive authority over his wife.24 With the exception of Abū Ḥanīfa (d. 150 H./767), the majority opinion was that for an Islamic marriage to be contracted, women would have to gain approval by their fathers, a guardian (walī) from their agnatic line, or in the absence of both, a public official.25
In classical Islamic law, lawful marriage was predicated on the equality of the spouses (kafāʾa). By taking into consideration aspects of class, profession and wealth, the jurists’ proclaimed goal was to ensure conjugal harmony.26 In his Mughnī, the Ḥanbalī Ibn Qudāma (d. 620 H./1223) lists five criteria for establishing spousal equality: lineage (nasab), degree of freedom (ḥurriya), property (māl), occupation (ḥiraf), and public esteem (ḥasab).27 Although many of these criteria have been abandoned with modernizing reforms throughout the Islamic world, some endure. In Syria and Morocco, spousal equality now remains a matter of local custom. In Jordan, the amount of property held by the intended spouses might figure into considerations of marriage. Kuwaiti law considers only
24 Omaima Abou-Bakr, The Interpretive Legacy of Qiwamah as an Ex- egetical Construct, in Ziba Mir-Hosseini, Mulki Al-Sharmani, and Jana Rumminger, eds, Men in Charge? Rethinking Authority in Muslim Legal Tradition (Oneworld Pub- lications, 2015). Q 4:34 states “Men are legally responsible (qawwāmūn) for women, inasmuch as God has preferred some over others in bounty, and because of what they spend from their wealth. Thus, virtuous women are obedient, and preserve their trusts, such as God wishes them to be preserved. And those you fear may rebel, admonish, and abandon them in their beds, and smack them. If they obey you, seek no other way against them. God is Highest and Mightiest;” The Qur’an, tr. Tarif Khalidi, 66 (Lon- don: Penguin Classics, 2008).
25 Kecia Ali, Marriage and Slavery in Early Islam, 30 (Harvard Univer- sity Press, 2010).
26 Also, see Judith Tucker, Women, Family, and Gender in Islamic Law, 45 (Cambridge University Press 2008) (stating that a woman only had a real choice to choose a marriage partner within the parameters set by the social and economic status of her family).
27 Ibn Qudāma, 5 Al-Mughnī. Sharḥ Mukhtaṣar al-Khiraqī, 24-25 (Dār ʿĀlam al-Kutub, 1997).
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religious devotion—clearly a legacy of classical Islamic law— as a criterion for ensuring spousal equality.28
Nowadays, countries in which Islamic law is currently exercised generally have different regulations as to how an Islamic marriage contract must be filed and what its precise legal implications are.29
ii. Mahr-agreements
Dowers are usually split into two portions, an immediate (muʿajjal) and most often symbolic portion due before consummating a marriage, and a deferred (muʾakhkhar) portion that is usually paid upon divorce or a husband’s death. The splitting of dowers is designed to ensure the financial integrity of women in the case of divorce (ṭalāq). Even though the deferred portion (muʾakhkhar) of the dower is customarily paid upon divorce, the Mālikīya required it to be specified in scheduled installments. In modern times, pre-divorce claims for a dower’s deferred portion may arise if the wife becomes doubtful about her husband’s continued commitment or ability to pay in case they get divorced.30 Because US courts tend to analogize dowers primarily to prenuptials, they have failed to recognize that under Islamic law, a wife may be entitled to claim the deferred portion of the dower before a marriage is terminated.
In line with the Quranic injunction to “give women their dower,”31 the Muslim majority view prescribes that
28 Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and Modern Islamic Legislation 59 (Brill 2009); Aharon Layish and Ron Shaham, Nikāḥ. II. In the Modern Islamic World, in Encyclopaedia of Islam, Second Edition, accessed February 26, 2021, http://dx.doi.org/10.1163/1573-3912_islam_COM_0863.
29 Id. at 59. 30 For instance, in one Iranian marriage, the wife filed a complaint
against her “very stingy husband” who allegedly would not even pay for a cup of cof- fee claiming from him her entire dower of 124,000 roses; Iranian to pay 124,000-rose dowry, BBC News (March 3, 2008), accessed May 25, 2019, http://news.bbc.co.uk/2/ hi/middle_east/7275506.stm.
31 The Qur’an, tr. Tarif Khalidi, 62 (London: Penguin Classics, 2008), Q 4:4: “Give women their dowry [sic! dower], a free offering (ṣaduqātihinna niḥlatan). And if they willingly offer you any of it, then consume it in peace of mind and whole- someness.”
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
mahr-agreements are obligatory (wājib).32 Yet, classical legal discussions feature instances where marriages were contracted without the explicit mention of a dower. Al-Shāfiʿī (d. 204 H./820), the eponym of one of the Sunni legal schools, argued that even where a marriage is concluded without a dower, it should not be annulled.33 Most schools developed the doctrine that where a marriage had been consummated without the explicit mention of a dower, the husband would be required to provide to his wife a fair dower (ṣadāq al-mithl).34 Nowadays, it is without a doubt most common for prospective Muslim spouses to negotiate a bridal dower when contracting marriage. In the process of doing this research, I did not come across a single case where a US court was confronted with an Islamic divorce in which a mahr-agreement had not been part of the spouses’ marriage contract.
iii. Legal and sociological dimensions of Islamic marriage
The bridal dower should also be understood in sociological terms. That is, a dower creates extensive leverage on the part of Muslim wives by creating enhanced opportunities for them to bargain their positionality in marriage, sexual pleasure, and divorce. For instance, in the case a husband seeks an immediate divorce, an outstanding dower-payment would in most cases prevent him from quickly moving ahead with divorce proceedings and would require him to consult and bargain with his wife. Many studies show that a high mahr often induces men to push their wives into applying for divorce (khulʿ), which is penalizing for women as it often, though not always, causes
32 For instance, Emily Sharpe, Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: a Roadmap for U.S. Courts, 14 The George- town Journal of Gender and the Law 189, 193 (2013).
33 Muḥammad b. Idrīs al-Shāfiʿī, The Epistle on Legal Theory [Risāla fī uṣūl al-fiqh] 250 (New York University Press 2013): “Marriage should not be an- nulled because the dower [ṣadāq] is omitted since God confirmed in his scripture [the validity] of marrying without a dower and this is written in other places than this.”
34 Judith Tucker, Women, Family, and Gender in Islamic Law, 48 (Cam- bridge University Press 2008).
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them to lose all or some financial rights under Islamic doctrine35 and under the law of most Muslim-majority countries.36
According to classical Islamic jurisprudence, a husband generally did not need his wife’s approval to enter an additional marriage. However, on several occasions, classical doctrine explicitly configures a wife’s dower as a weapon against undesired additional marriages of her husband. In one example, Saḥnūn b. Saʿīd al-Tanūkhī features a hypothetical where a wife, after the marriage has been performed, demands from her husband that he refrain from taking additional wives. In his response to Saḥnūn, Mālik notes that the wife can legitimately give up part of her dower in exchange for her husband’s promise not to take additional wives. If he takes an additional wife despite such a promise, the money the first wife gave him would be used to purchase her divorce from him.37 The example illustrates that although Mālikī doctrine enjoined wives from imposing conditions on their husband in their marital contracts, it furnished opportunities for them to use their dowers for intramarital bargaining. Even though such hypotheticals may not be the norm, they substantiate the point that the dower’s value should not be misconstrued as subsisting primarily in its face value but also lies in its inherent quality to be exchanged against enhanced rights and conditions in marriage.
Even though Muslim men were mostly at liberty to stipulate additional marriages, documentary evidence from ninth century-Egypt shows that women regularly inserted clauses in their marriage contracts that prohibited their husbands from taking additional wives.38 Meanwhile, in contemporary Muslim
35 See Muhammad Ahmad Munir, Development of Khul‘ Law: Legal, Judicial and Interpretive Trends in Pakistan, 34-35 (PhD dissertation, McGill Uni- versity, 2020), archived at https://escholarship.mcgill.ca/downloads/dn39x556t?lo- cale=en.
36 Anthropological fieldwork conducted in Zanzibar, Egypt, Indonesia, Morocco, India, Germany and the Netherlands shows that in all of these diverse set- tings, “the practice of khulʿ consistently requires the wife to compensate her husband for the divorce,” Nadia Sonneveld and Erin Stiles, Khulʿ: Local Contours of a Global Phenomenon, in 26 Islamic Law and Society 1, 6 (2019).
37 Saḥnūn b. Saʿīd al-Tanūkhī, 2 al-Mudawwana al-Kubrā 132 (Dār al-Kutub al-ʿIlmīya, 1994) (shurūṭ al-nikāḥ ayḍan).
38 Yossef Rapoport, Matrimonial Gifts in Early Islamic Egypt, 7/1 Islam-
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
jurisdictions such as Iran and Pakistan, a husband will, at least officially, require his first wife’s consent before contracting an additional marriage. In Egypt, where polygyny is generally allowed, Sheikh Ahmed El Tayib’s 2019 announcement, in which he emphasized that polygyny is governed by narrow conditions and is often practiced in ways unfair for women, sparked an ongoing public controversy and fueled legal efforts to curb men’s ability to enter such marriages without constraints.39
A critic might argue that the alleged financial and personal integrity achieved by stipulating for the Muslim wife a dower is not apparent. Her integrity can, one may hold, be eroded easily because even though a wife is formally entitled to retain her dower, it might be merged with her parents’ property in the case of divorce because she would often have to move back into her parental home in line with cultural expectations.
There are several problems with this argument. First, it is widely recognized in Islamic legal scholarship that a mahr does provide financial security and leverage to the wife.40 Historical evidence suggests that the practice of conferring dowers to women directly, rather than their guardians (walī), came about in the early seventh century either with the rise of Islam or shortly before.41 Spies has noted that the change in the way dowers were conferred obliterated the pre-Islamic conception of the mahr being the price paid for a bride.42 By reconfiguring the role of the mahr in marriage, women’s lot was ameliorated by turning them into the beneficiaries of the property released by their husbands and significantly increasing their financial and
ic Law and Society 1, 16 (2000). 39 George Sadek, Egypt: Grand Imam Issues Religious Opinion Calling
Polygamy Oppression of Women (Global Legal Monitor, 2019), accessed February 27, 2021, https://www.loc.gov/law/foreign-news/article/egypt-grand-imam-issues-re- ligious-opinion-calling-polygamy-oppression-of-women/. Also, see Ahmed El Tayib, Twitter post from March 2, 2019, accessed February 27, 2021, https://twitter.com/ AlAzhar/status/1101914023795326976.
40 See, for instance, Joseph Schacht, An Introduction to Islamic Law, 167 (Clarendon Press 1964) or Kecia Ali, Marriage and Slavery in Early Islam, 49 (Har- vard University Press 2010).
41 Otto Spies, Mahr, in Peri Bearman, et al, Encyclopaedia of Islam, Sec- ond Edition.
42 Id.
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social independence and decision-making. Apart from historical arguments, ethnographic evidence
collected by Hoodfar among low-income communities in Egypt in the 1990s suggests that women do take mahr-negotiations seriously, realizing “the importance of these negotiations for their future relationship with their husband.”43 The women interviewed by Hoodfar perceived these negotiations as crucial in order to avoid foreseeable problems in marriage.44 Hoodfar finds that by negotiating substantial mahrs, women come to utilize the mahr as a strategy to secure financial integrity and protect themselves from some of the legal restrictions they face in the institution of Islamic marriage, particularly their limited ability to initiate divorce.45
Second, no evidence suggests that women’s dowers are customarily merged into family property upon divorce. The argument subscribes to the assumption that Muslim women lack agency to protect their interests. While an extensive critique is not in order here, the argument denies the ways in which women, in Western as well as non-Western societies, engage in making claims despite the structural limitations they confront. To deny the recognition of these forms of claim-making is to deny that Muslim women do actively negotiate and utilize dower- arrangements to secure social and economic benefits.
Entering an Islamic marriage creates rights and obligations for both parties. A husband becomes obliged to provide maintenance (nafaqa) to his wife, which at the minimum must include adequate clothing, food, and shelter.46 Breaching his obligation to provide support, in all but the Ḥanafī and Shīʿī legal schools, creates the grounds for a wife to divorce her husband.47 In classical jurisprudence, the married parties were
43 Homa Hoodfar, In the Absence of Legal Equity: Mahr and Marriage Negotiation in Egyptian Low Income Communities, 6/7 The Arab Studies Journal 98, 107 (1998/1999).
44 Id. at 108. 45 Id. at 109. 46 Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and
Modern Islamic Legislation 105 (Brill 2009). 47 Rudolph Peters, Nafaḳa, in Encyclopaedia of Islam, Second Edition,
accessed February 27, 2019, http://dx.doi.org/10.1163/1573-3912_islam_COM_1436
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
both considered to have a right to sexual intimacy. If a husband failed to consummate the marriage due to impotence, his wife could demand the dissolution of their marriage. However, once the marriage had been consummated, there was no official legal recourse for her to end the marriage unilaterally, and she would have to endure her husband’s sexual incapacitation48 just like any other medically disabling condition that he might develop. Of course, wife-initiated divorce (khulʿ) could be an option, but it likely came at the cost of forfeiting parts of her dower and requiring her husband’s consent.
In stark contrast to the Western historical conception of a singular legal identity of the spouses,49 when entering an Islamic marriage, husband and wife maintain their individual identities, legally, financially, and socially.50 The parties remain separate legal entities, enter no community of property, and most often do not take on the other spouse’s last name.51 The continuing separateness of the spouses after getting married matters because it implies that, under Islamic law, the primary legal recourse for Muslim women to make claims for financial support is through their mahr-agreements.
b. Getting divorced
Islamic marital jurisprudence mainly knows three ways for spouses to obtain a divorce. Islamic divorce is explicitly gendered in that it constitutes a matter of rights for husbands and can only be demanded by wives under certain circumstances.52
(obligation to maintenance arises from kinship, ownership or marriage). 48 Kecia Ali, Sexual Ethics and Islam. Feminist Reflections on Qurʾan,
Hadith and Jurisprudence, 12–13 (Oneworld Press, 2006). 49 Hendrik A. Hartog, Marital Exits and Martial Expectations in Nine-
teenth Century America, 80 Georgetown Law Journal 95, 97 (1991) (arguing that in 19th-century America, the spouses were thought of as having a singular and perma- nent legal and social identity).
50 Azizah Y. al-Hibri, The Nature of the Islamic Marriage: Sacramental, Covenantal, or Contractual, in John Witte Jr, and Eliza Ellison, eds, Covenant Mar- riage in Comparative Perspective 182, 199 (William B. Eerdmans Publishing Com- pany 2005).
51 Id. at 199. 52 Judith Tucker, Women, Family, and Gender in Islamic Law, 92 (Cam-
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The first and probably most common type is a husband-initiated divorce (ṭalāq). The majority legal opinion is that to perform ṭalāq, a husband must be in a state of majority, sanity, free from coercion, and free from intoxication.53 Having made the intent (nīya) to obtain a divorce, he must verbally express or write down the ṭalāq-formula three times. The legal schools hold different opinions on whether a triple pronunciation of ṭalāq may be performed all at once. Generally, it is recommended to refrain from such practice so that the spouses will have an opportunity to reconcile.54 The performance of ṭalāq usually obliges the husband to come up with the full amount of the deferred mahr- portion. The second form of divorce is wife-initiated (khulʿ). This type of divorce has undergone significant changes in modern times. In classical law, the khulʿ was permissible in circumstances where the husband was “blameless” and generally required his consent. Once a husband agreed to his wife’s divorce proposal, she would become liable for financial compensation of him.55 In other words, a wife essentially purchased her divorce. Concerning a wife’s financial rights, Abū Ḥanīfa argued that a khulʿ forfeits all her financial claims, including her dower and maintenance. According to Jamal A. Nasir, his position differed from the Mālikis, Shāfiʿīs and other Ḥanafī jurists who held that “the effects of the khula contract shall be confined solely to those specified, which is the practice adopted by the court.”56 In practice, a wife’s compensation payment was
bridge University Press 2008). 53 Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and
Modern Islamic Legislation, 121–122 (Brill 2009). Classical Ḥanafī jurisprudence considers repudiation by an intoxicated husband permissible, id. at 122.
54 Triple ṭalāq was recently criminalized in India, Kai Schultz, India Criminalizes Instant ‘Talaq’ Divorces for Muslim Men, New York Times (Sep 20, 2018), accessed May 14, 2019, https://www.nytimes.com/2018/09/20/world/asia/in- dia-talaq-muslim-divorce.html.
55 Jamal J. Ahmad Nasir, The Status of Women under Islamic Law and Modern Islamic Legislation 129–130 (Brill 2009).
56 Id. at 133. Also, see Mohammad H. Fadel, “Political Liberalism, Is- lamic Family Law, and Family Law Pluralism,” in Joel A. Nichols, ed, Marriage and Divorce in a Multicultural Context. Multi-tiered Marriage and the Boundaries of Civ- il Law and Religion 164, 177 (Cambridge University Press 2012) (arguing that the
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
usually made by giving up the deferred portion (muʾakhkhar) of her dower. Consequently, wife-initiated divorce often came at the considerable disadvantage of a wife forfeiting the financial security she was promised in her mahr-agreement and to which she would have been entitled if her husband had initiated divorce (ṭalāq).
In today’s Muslim majority-jurisdictions, a husband’s consent for a khulʿ is not always needed. As part of the amendment of the personal status laws in 2000, the Egyptian parliament passed a law that allows women to file for khulʿ even if their husband does not consent. The law specifies that under such circumstances, the court will grant the wife a divorce based on “waiving all her financial legal rights and returning to him the dower (ṣadāq) that he gave her (bi-tanāzul ʿan jamīʿ ḥuqūqihā al-māliyya al-sharʿiyya wa-raddat ʿalayhi al-ṣadāq alladhī aʿṭāhu lahā).”57 Jordan followed suit with a similar law in 2001. Meanwhile, in Morocco, after the 2004 family law code reforms, consensual khulʿ was much less practiced as other forms of divorce such as shiqāq (divorce by discord) and al-ṭalāq bi-l-ittifāq (divorce by agreement) became women’s preferred methods of terminating a marriage.58
The third most common form of divorce is through a court order (tafrīq). Nasir states that various Arab countries have specified the occasions under which a woman may seek to obtain a divorce through court-order. These usually include injury or discord, a physical or mental defect of one of the spouses, a husband’s failure to pay maintenance, his imprisonment, and his absence without an acceptable excuse.59 This kind of divorce sustains a husband’s liability for payment of the dower’s
legal differences between Mālikīs and Ḥanafīs on the issue of khulʿ divorce reflect a broader disagreement over judicial divorce, which the former permit whenever the wife can prove harm, but the latter only grant under very limited circumstances).
57 Law Nr. 1/2000 (Qānūn raqm 1 li-sanat 2000), article 20, accessed March 2, 2021, https://www.egypt.gov.eg/arabic/laws/download/20%مقر20%نوناق 20%عاضوا20%ضعب20%ميظنت20%نوناق20%رادصاب20%202000%هنسل1%20 .pdf.20%تاءارجاو
58 Nadia Sonneveld, Divorce Reform in Egypt and Morocco: Men and Women Navigating Rights and Duties, 26 Islamic Law and Society 149, 161 (2019).
59 Jamal J. Ahmad Nasir, The Status of Women at 137.
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deferred portion and thus furnishes a significant advantage for women seeking a divorce when compared to wife-initiated divorce (khulʿ). The number of circumstances in which court order divorces will be granted again varies depending on the legal school, with the Ḥanafīs generally allowing many fewer than the Mālikīs. However, today many of these differences have been obfuscated due to the fact that in matters of divorce, the legislations of most Muslim majority countries have adopted the Mālikī view.
II. whence ISlaMIc law?
a. The multitude of Islamic legal opinions and authorities causes uncertainty in courts
There is no orthodoxy in Islam or Islamic law. That is, there exists no singular authority or Islamic legality that is generally considered binding or authoritative for all Muslims. Nevertheless, the Islamic tradition’s heterogeneity does not imply formlessness, since Islamic legal practice is controlled and policed by a range of reasonable interpretations and norms.60 The notion of Islamic justice is grounded in religious ethics that are predominantly Quranic, and social ethics of the community’s integrity and social harmony.61 For most Muslims, the Quran and the traditions and sayings of the Prophet (sunna) constitute foundational texts. Additionally, the scholarly opinions from the Islamic legal schools (madhāhib) may be employed as additional guidelines or rules for deciding legal issues. The Islamic professions of legal scholar (faqīh), jurisconsult (muftī), and judge (qāḍī) are tasked with, among other things, establishing whether and how the Muslim community’s social practices can be reconciled with the legal and ethical demands inscribed in
60 Mohammad H. Fadel, The Challenges of Islamic Law Adjudication in Public Reason, in S. Langvatn, M. Kumm, and W. Sadurski, eds, Public Reason and Courts 115, 130 (Cambridge University Press, 2020).
61 Wael B. Hallaq, Sharīʿa. Theory. Practice. Transformations, 16 (Cam- bridge University Press 2009).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
the Islamic foundational texts and traditions.62 Yet “Islamic” law as applied in Muslim majority-countries varies significantly and depends on the particular political system under which Islamic laws may be fully, partially, or not at all, applied.63
The multitude of Islamic legal opinions about Islamic marriage, divorce, and mahr-agreements complicates the process of translating Islamic marriage into the US legal system. For instance, suppose the married parties are US citizens with an Iranian cultural background and concluded an Islamic marriage in a local mosque in Minnesota. Suppose also that the spouses had agreed on a bridal dower and now seek a divorce. Should the court enforce the mahr-agreement applying Iranian law under comity? Should it construe it using Islamic law? If it aims to apply Islamic law, which Islamic legal doctrine would prevail?64
The application of Islamic law on US soil generally falls under the principle of comity. Parties, therefore, do not have a legal right to have foreign laws apply to their litigation but the court will consider it to be a matter of courtesy that is based on the “recognition of legislative, executive, and judicial acts” by other political entities.65 Of course, enforcing the terms of a
62 In that regard, Islamic law is similar to the US legal system in which lawyers endorse, question, or intervene into social practices by balancing them against legal doctrines prescribed by the US Constitution and legal precedents.
63 For instance, in Lebanon, legal issues related to personal affairs are handled by sectarian courts depending on the religious confession of an individual. In Iran, the courts combine civil and religious authority. In Turkey, religious courts have long been abolished and entirely been replaced by civil courts.
64 The perplexing outcomes of the courts’ interpretations of what Islamic marriage is or might be under Islamic law became alarmingly obvious in S.D. v. M.J.R (2010) where a Muslim husband had raped his wife and argued that his religious be- liefs, which ostensibly demanded that a husband does not require consent to have sex- ual intercourse with his wife, created an exception to his being found guilty of sexual assault or criminal sexual conduct. Although the New Jersey Superior Court later re- pealed the judgement, the argument was granted by the trial judge; S.D. v. M.J.R., 415 N.J. Super. 417, 432–33, 2 A.3d 412, 422 (App. Div. 2010). The judicial confusion and helplessness of how to deal with and translate Islamic marriage into the US legal system can hardly be missed.
65 “Comity,” in: Black’s Law Dictionary, edited by Brian A. Garner (West Group, 2014). The Supreme Court was confronted with the issue of comity in Hilton v. Guyot holding that “‘[c]omity,’ in the legal sense, is neither a matter of abso- lute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative,
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mahr-agreement is not necessarily contingent on the application of Islamic law. Other theories of why a mahr-agreement is enforceable, even without applying Islamic law, might yield the same outcome. But the issue of Islamic law has often been raised in Islamic divorce trials. The problem that US courts regularly face is establishing what the parties’ stated intent to have “Islamic law” govern their marriage contract actually means. In determining what Islamic law is and whether it can be applied, the courts frequently confront two related issues, a substantive and a procedural one. The first is whether the spouses’ stated intent to have Islamic law apply to a mahr-agreement satisfies the statute of frauds. The second is whether parol evidence is admissible to determine what the parties meant by “Islamic law.”
b. Statute of frauds
i. Does “Islamic law” state the choice of law with reasonable certainty?
First, when determining what legal system or legal code a mahr-agreement falls under, the court will typically look to the “writing” of a contract. Generally, to satisfy the statute of frauds, the contract itself must indicate its terms, including the choice of law the parties agreed on.66 But establishing the parties’ choice of law for mahr-agreements has proved to be an arduous undertaking. In In re Marriage of Shaban, the Court held that the phrases “in Accordance with his Almighty God’s
executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws;” Hilton v. Guyot, 159 U.S. 113, 163–64, 16 S. Ct. 139, 143, 40 L. Ed. 95 (1895).
66 In Habibi-Fahnrich v. Fahnrich, the New York Supreme Court ap- plied a three-pronged test, based on the New York General Obligations § 5-701, to determine whether a mahr (ṣadāq)-agreement satisfies the requirements of the stat- ute of frauds; see Habibi-Fahnrich v. Fahnrich, No. 46186/93, 1995 WL 507388, at *2 (N.Y. Sup. Ct. July 10, 1995) (establishes that for a contract to satisfy the statute of frauds [1] parties must have reached a mutual understanding to be evidenced by a written instrument, [2] the material terms of the contract must be specific enough that anyone can understand them, and [3] the writing must be plainly sufficient on its face).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
Holy Book and the Rules of the Prophet” and “[the] two parties [having] taken cognizance of the legal implications” do not satisfy the California statute of frauds because they do not state with reasonable certainty what the material terms of the parties’ contract are under Islamic law.67
The court’s concern here was not that the parties had failed to expressly state that they seek for their contract to fall under “Islamic law.” Instead, the court demanded that the spouses specify what they mean by “Islamic law.” Put differently, even if the spouses had explicitly stated that they seek for their contract to be governed by “Islamic law,” the Shaban Court would have probably ruled in the same vein, holding that such a reference alone does not suffice to establish what the material terms of the contract are. However, what other options do the married parties have other than to mention, explicitly or implicitly, that Islamic law is to govern the marriage contract? Of course, spouses may state that they seek for their agreement to fall under the laws of a specific country or legal code. But especially in the case of Shaban, where both spouses were Egyptian and where the marriage contract had been concluded in Egypt long before the parties had migrated to the US, it seems reasonable to assume that the implicit reference to Islamic law functioned as a placeholder for Egyptian (Islamic) law as the spouses’ intended choice of law.68
Would Egyptian (Islamic) law suffice as a descriptor to state the choice of law? At the time of the Shabans’ divorce, Egyptians’ personal affairs such as family disputes were governed by the 1929 personal status laws (qawānīn al-aḥwāl al-shakhṣīya) and their amendments.69 In Egypt, the case would have likely been submitted to a Family Dispute Resolution office for the parties to settle before being forwarded to a court.70 If it
67 In re Marriage of Shaban, 88 Cal. App. 4th 398, 401, 105 Cal. Rptr. 2d 863, 864 (2001), as modified on denial of reh’g (May 9, 2001).
68 Id. at 865. 69 Nathalie Bernard-Maugiron, Courts and the Reform of Personal Status
Law in Egypt. Judicial Divorce for Injury and Polygamy, in Elisa Giunchi, ed, Adju- dicating Family Law in Muslim Courts 106, 106 (Routledge 2014).
70 Nathalie Bernard-Maugiron, Promotion of Women’s Rights (Egypt). Personal Status Laws in Egypt. FAQ at 15, accessed May 15, 2019, http://horizon.
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had reached the court, an Egyptian judge would have first looked to the personal status laws. Art. 3 of Law 1, passed in 2000, reaffirmed that judges must first consult personal status law in matters of personal affairs. Then, in case an issue cannot thereby be resolved, they should rule in accordance with the predominant opinion (bi-arjaḥ al-aqwāl) of Ḥanafī jurisprudence.71
One can argue that assuming Egyptian law to be the reference point in Shaban simply evades the question of “what Islamic law is” or, in other words, construes the spouses’ request for Islamic law to be indicative of their intent to have the marriage contract fall under Egyptian law. There are two objections to this argument. First, I believe that the question of “what Islamic law is”—if we must ask it—has no generic answer and needs to be decided contextually and on a case-by- case basis. The mention of Islamic law, as the Shaban Court noted,72 rarely stands on its own. In Shaban, the Islamic law reference was accompanied by information about the married parties’ names, the witnesses to the marriage, the amounts of the advanced (muʿajjal) and deferred (muʾakhkhar) portions of the dower, the married parties’ and witnesses’ signatures, and official seals of the court clerk or ministry.73 In other words, a contractual reference to “Islamic law” is most often likely to be embedded in a broader context of other epistemic signposts that indicate the intent to have a certain kind of Islamic law enforced. In the case of Shaban, using these to figure out the type of Islamic law the spouses intended to have applied to their contract would have been relatively straightforward.
Second, the question of “what Islamic law is” is essentially a modern predicament generated by an epistemological condition that requires the asking of that very question. Yet historically,
documentation.ird.fr/exl-doc/pleins_textes/divers17-07/010048687.pdf. 71 Law Nr. 1/2000 (Qānūn raqm 1 li-sanat 2000), article 3, accessed
May 15, 2019, https://www.egypt.gov.eg/arabic/laws/download/20%مقر20%نوناق 20%عاضوا20%ضعب20%ميظنت20%نوناق20%رادصاب20%202000%هنسل1%20 .pdf.20%تاءارجاو
72 In re Marriage of Shaban, 88 Cal. App. 4th 398, 403, 105 Cal. Rptr. 2d 863, 864 (2001), as modified on denial of reh’g (May 9, 2001).
73 See the mahr-agreement translated into English which is appended to the Court’s judgement in Shaban, id., footnote 1.
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and until the dawn of modernity, Islamic law (sharīʿa) was never homogenous and functioned primarily as a moral imperative that was embodied by a multitude of localized practices and customs.74 Arguably it is only under conditions of the modern nation-state that the demand for an identifiable and unified body of laws became intimately bound up with the idea of sovereignty. In the wake of modernizing reforms, attempts to turn Islamic legal practices into a form of modern governance were made abundantly. But most of these failed. As Wael Hallaq states,
the Sharīʿa itself was eviscerated, reduced to providing no more than the raw materials for the legislation of personal status by the modern state.75
While that might seem like an unsatisfactory answer to the question of “what Islamic law is,” it sharpens our understanding of why that question is asked in the first place and, more importantly, why the answer should remain idiosyncratic to the particular legal case at hand.
ii. Should spouses commit to a foreign legal system or code instead of Islamic law?
An argument to consider is that whereas in Shaban, the choice of law was apparent because it could reasonably be inferred from the context in which the marriage contract was entered, in many cases of Islamic marital dispute, it is not. As an alternative to the expression “Islamic law,” the contracting parties could commit to the laws of a specific country. But should spouses be obliged to commit to a foreign legal system that they might at best be vaguely familiar with, merely to ensure that a US court will enforce a mahr-agreement in future?
74 Wael Hallaq, The Impossible State. Islam, Politics, and Modernity’s Moral Predicament ix (Columbia University Press, 2013).
75 Id. Also, see Wael Hallaq, Sharīʿa. Theory, Practice, Transformations 19 (Cambridge University Press, 2009) (arguing that the discursive and cultural prac- tices of the classical Sharīʿa met their structural death at the dawn of modernity).
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As the example of Obaydi v. Qayoum shows,76 spouses often do not have extensive knowledge about Islamic legal practices and their consequences, let alone the application of foreign laws that might pertain to their Islamic marriage in the case of divorce.
The requirement to commit to a foreign legal system to ensure the payment of bridal dowers would likely have a chilling effect on spouses. That is, the expectation to expressly commit to a foreign state’s legal system or code about which the spouses have only vague ideas might deter them into refraining from Islamic marital arrangements altogether because of the legal consequences they might unintentionally and unwillingly subscribe to.77
One might counterargue that parties who are unwilling to explicitly commit to a specific foreign legal system or code to have their Islamic marriage contract enforced, should refrain from stipulating such contracts if they want to avoid liability for the unintended consequences that such commitment entails. However, the argument is discounted by the point that the only solution to ensure that US courts enforce mahr-agreements under Islamic law cannot simply be to oblige the parties to commit to a foreign legal system that they are mostly unfamiliar with. Apart from ignorance, such a requirement would unreasonably assume that the applicability of Islamic law and its customs is contingent on the existence of foreign states in which these laws are already being enforced, rather than infer its legitimacy from the reality that Muslim communities exist and actively practice Islam in the United States.
iii. Is a reference to US federal or state law more reasonably certain than “Islamic” law?
76 In re Marriage of Obaidi & Qayoum, 154 Wash. App. 609, 612, 226 P.3d 787, 789 (2010) (husband arguing that he was unfamiliar with the concept of the mahr and ignorant of what he was signing at the wedding despite being a Muslim and having previously attended a Muslim wedding).
77 These can be quite significant such as unintentionally acquiring anoth- er country’s citizenship, e.g., when marrying a male Iranian citizen.
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I believe that the argument about the reference to Islamic law not stating the choice of law with reasonable certainty is flawed for other reasons. One can argue that a contract in which the parties imply or explicitly state that they seek it to be enforced under US state or federal law, would not necessarily create significantly more reasonable certainty. Any choice of law merely establishes a likelihood of a contract being enforced in a certain way. In other words, a reference to a specific body of substantive and procedural laws only makes it more likely that a contract will be interpreted by a court in one way or the other. It is unreasonable to assume that spouses seeking to apply California law to their marriage contract would be able to foresee or have exact knowledge of how their agreement will be construed, interpreted, and enforced under that legal system. Consequently, even where parties enter a contract under California law, they cannot be expected to anticipate with absolute certainty of what materials, statute or theory of construction a court might avail itself in case they have a legal dispute concerning their contract. A reference to Islamic law achieves a similar result in that it specifies for the judge a body of substantive and procedural rules to take into account in the process of construing the mahr- agreement. It increases the likelihood that the contract will be interpreted in a certain way, without creating absolute certainty.
c. Parol evidence
i. The essential terms of a mahr-agreement should be stated, the particulars need not be
The ostensible lack of specificity in the expression “Islamic law” and the multiplicity of Islamic legal practices have occasionally made it necessary for parties to Islamic divorce proceedings to call on expert-witnesses to testify about particular understandings and concepts in Islamic marriage.78 The courts in
78 Akileh v. Elchahal, 666 So. 2d 246, 247 (Fla. Dist. Ct. App. 1996) (expert witness of the wife’s counsel testifying that a mahr is not forfeited if a wife
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Soleimani (2013) and Shaban (2001) recognized the potential dangers of admitting parol evidence to allow the married parties to clarify the terms of their contract. The Shaban Court refused to hear the expert the husband’s counsel had tried to introduce arguing that he would virtually (re)write the marriage contract for the parties.79 The Court’s opinion was effectively overruled in Sterling v. Taylor (2007). In Sterling, the California Supreme Court held that even in the absence of a written contract, the parties will nevertheless be considered to have contracted with each other if they produced a memorandum. Specifically, the court made two arguments that are relevant to the case of mahr- agreements.
First, it held that a memorandum regarding the sale of several apartments satisfies the statute of frauds when it establishes that (1) the parties made a contract, (2) specifies the subject of that contract, and (3) the essential terms it is governed by with reasonable certainty.80 The Court clearly states that only the essential terms of the contract must be stated, “details or particulars” need not be.81
Second, the Sterling Court argued that the writing requirement of the statute of frauds has an evidentiary purpose, serving merely “to prevent the contract from being unenforceable; it does not necessarily establish the terms of the parties’ contract.”82 Thus, the Court concluded that when an ambiguous term in a memorandum is disputed between the parties, extrinsic
initiates divorce); Rahman v. Hossain, No. A-5191-08T3, 2010 WL 4075316 (N.J. Super. Ct. App. Div. June 17, 2010) (expert testifying that where a wife constitutes an impediment to the marriage, she must refund a previously paid mahr).
79 In re Marriage of Shaban, 88 Cal. App. 4th 398, 400, 105 Cal. Rptr. 2d 863, 864 (2001), as modified on denial of reh’g (May 9, 2001) (Court refusing to hear the expert introduced by the husband’s counsel on the argument that he would effectively write a contract for the parties); Soleimani v. Soleimani, No. 11CV4668, 26 (Johnson County Dist. Ct. 2013) (arguing that parole evidence cannot be used to aid the court in the construction of the contract before it has determined where am- biguities exist); Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 408 (Fla. 1974) (holding that subsequent party differences concerning the construction of a contract do not affect the contract’s validity).
80 Sterling v. Taylor, 40 Cal. 4th 757, 766, 152 P.3d 420, 425 (2007). 81 Id. at 766. 82 Id. at 767; based on court opinion in Casa Herrera, Inc. v. Beydoun
(2004) 32 Cal.4th 336, 345, 9 Cal.Rptr.3d 97, 83 P.3d 497.
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evidence is admissible to resolve the uncertainty.83
But is a mahr-agreement like a memorandum and should it be considered as satisfying the statute of frauds? It is, in fact, more than a memorandum. It is intended to serve as the actual written contract between the parties. Its content establishes that (1) the parties did enter a marriage contract entailing financial obligations for the husband and (2) specifies that financial obligation as the subject of that contract. However, does a mahr- agreement also (3) specify the essential terms the contract is governed by with reasonable certainty? That depends. It usually states the parties and witnesses’ names, the negotiated sum, and makes an explicit or implicit reference to “Islamic law.” As argued previously, such reference would not determine the body of laws that should be applied to a mahr-agreement with less reasonable certainty than a reference to US state or federal law.84
Even if a court rejects the argument that a mahr-agreement is a written contract, under the memorandum precedent, the stipulations of a mahr-agreement could be considered valid on the theory that it is a memorandum fulfilling the criteria set out by the court for memorandums to effectuate contracts.
ii. The court is granted extensive liberties in construing mahr-agreements under FRCP 44.1
The Sterling opinion echoes Rule 44.1 of the Federal Rules of Civil Procedure which implies a more liberal understanding about using and admitting parol evidence than what the Court’s opinion in Shaban suggested:
[…] In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.85
83 Sterling v. Taylor, 40 Cal. 4th 757, 767, 152 P.3d 420, 425 (2007). 84 See section on statute of frauds. 85 Fed. R. Civ. P. 44.1.
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The Notes of the Advisory Committee on Rule 44.1 support that impression stating that the ordinary rules of evidence applied to determine foreign law had proved to be inapposite. To create an effective remedy to this situation, Rule 44.1 was drafted by the legislator with the intent to permit courts to include “any relevant material, including testimony, without regard to its admissibility under Rule 43 [“Taking Testimony”].”86
Considering FRCP 44.1 and the Sterling opinion, courts dealing with mahr-agreements can be expected to more freely avail themselves of additional material in cases where the term “Islamic law” is not further specified in the contract and where the parties’ choice of law may not be inferred from the circumstances in which that contract was entered. The Soleimani Court’s decision is instructive because it states that courts’ concern about parol evidence is more narrowly related to when and by whom an ambiguous contractual term is identified. Such terms, the Court states, need to be identified by courts and before the parties introduce parol evidence.87 It thus affirmed the standard the Kansas Supreme Court applied in Robertson v. McCune according to which parol evidence may be used to clarify an ambiguous provision but not to nullify one that is “clear and positive.”88 That is, a court must determine what parts of a mahr-agreement it considers ambiguous and in need of clarification. These must provide the grounds for parol evidence. It cannot be the parties who tell the court which parts of their agreement they hold to be ambiguous and which they do not.
d. Statute of frauds and parol evidence as gendered problems
When enforcing contracts under “Islamic” law, the discomfort of US courts, as David Forte has noted long ago, tends to increase when the laws they are expected to enforce are
86 Id. (Advisory Committee Notes). 87 Soleimani v. Soleimani, No. 11CV4668, 26 (Johnson County Dist. Ct.
2013). 88 Robertson v. McCune, 205 Kan. 696, 699, 472 P.2d 215, 218 (1970).
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not expressed in the form of statutes, codes, or legal decisions.89 Also, the application of foreign laws becomes much easier where the Islamic laws to be enforced belong to a country whose laws are essentially based on European legal codes. According to Forte, courts tend to be more reluctant when they are supposed to enforce substantive laws based on a mixture of European and Islamic legal systems.90
It is important to realize the gravity of a court’s dismissal of the married parties’ choice of law that is stated in a mahr- agreement. Dismissing the spouses’ stated choice of law because a court finds the expression “Islamic law” too vague to satisfy the statute of frauds and because such agreements ostensibly do not specify “the essential terms” of the contract is questionable. It is questionable because (1) it would in many cases contravene the married parties’ original intent to have their contract enforced under Islamic law, and (2) fails to adequately take into account FRCP 44.1 or equivalent state procedural rules which grant courts significant liberties in using and having the spouses use parol evidence to clarify what “Islamic” law was intended to mean. Emily Sharpe and others have noted that dismissing the married parties’ stated choice of law in a contractual dispute will often be “outcome determinative.”91 Not granting the spouses’ stipulated choice of law will create a significant obstacle, albeit not an absolute one, for the enforcement of a mahr-agreement.
In less obvious ways, statute of frauds and parol evidence issues constitute specifically gendered problems. This is so mainly because the available alternative theories under which a court may enforce a mahr-agreement are not particularly weighty. If one assumes that the enforcement of a mahr-agreement creates a benefit for Muslim women, statute of frauds and parol evidence issues raised by the court are gendered because they tend to negatively affect women, not men, making
89 David F. Forte, Islamic Law in American Courts, 7 Suffolk Transna- tional Law Journal 1, 7 (1983).
90 Id. at 11. 91 Emily Sharpe, Islamic Marriage Contracts as Simple Contracts Gov-
erned by Islamic Law: a Roadmap for U.S. Courts, 14 The Georgetown Journal of Gender and the Law 189, 193 (2013).
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the enforcement of mahr-agreements much less likely. While in many cases, wives might be entitled to community property or equitable distribution schemes, the enforcement of mahr-agreements, I think, should be regarded as a strictly separate legal issue. This has rarely been the case because US courts predominantly tend to think of mahr- agreements as prenuptials. If enforceable as a prenup, the court, in most cases, does not also apply community property or equitable distribution of assets.
The failure to neatly separate mahr-claims from other marital claims has turned Islamic divorce proceedings in US courts into matters of the-winner-takes-it-all. The spouses will usually opt for the theory that promises them a higher financial outcome. If a wife’s mahr is higher in value than what she would receive under community property or equitable distribution, the wife’s counsel will almost always argue based on a theory that seeks to establish the enforceability of the mahr-agreement, while a husband will argue that the contract does not satisfy the statute of frauds, was made under duress, or that its enforcement would violate the Establishment Clause. If the mahr is below the financial value the wife would be compensated with under community property or equitable distribution of assets, each party will essentially argue the opposite.92
But there is a real legal as well as moral danger emanating from this sort of legal practice. For a Muslim wife, having her mahr-agreement enforced should, in most circumstances, be paramount because her entering of the marriage was predicated on the husband’s promise to pay a monetary sum or to release a previously negotiated set of his assets in the case of divorce. That is, the mahr constitutes the husband’s reverse contractual obligation of an Islamic marriage whose obligations a Muslim wife has already performed.93
92 Nathan Oman has made similar observations, Nathan Oman, Bargain- ing in the Shadow of God’s Law: Islamic Mahr Contract and the Perils of Legal Spe- cialization, 45 Wake Forest Law Review 579, 593 (2010).
93 Akileh v. Elchahal, 666 So. 2d 246, 248 (Fla. Dist. Ct. App. 1996) (noting that the wife performed under the mahr-agreement by having entered the mar- riage in the first place).
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Entitlements under state property rules should be considered separately.94 Courts should not put Muslim women in the awkward position where prior to the divorce trial they must choose whether they will seek the enforcement of the bridal dower or of community property/equitable distribution of assets because they will potentially forfeit claims if they end up choosing the “wrong” option. That became painfully obvious in Zawahiri v. Alwattar where the wife ended up with no financial compensation at all because she had relied on the theory that a mahr-agreement constitutes a prenuptial.95
When two parties contract a marriage, they make a deliberate choice to contract according to Islamic law. Rejecting such a choice often creates an undue substantive and procedural advantage for husbands in Islamic divorce proceedings. That is, if the court holds that a mahr-agreement does not satisfy the statute of frauds because “Islamic law” is not a reasonably certain expression, ex-wives will be compelled to revert to other theories based on which their mahr-agreement could be enforced. But as this study shows, none of those theories is particularly suitable to succeed in court because they do not adequately capture the substantive aspects and implications of a mahr-agreement.
III. BleSSIng or QuagMIre: relIgIouS doctrInal InterpretatIonS
a. Adjudicating on matters of religion cannot be entirely avoided
Are secular courts qualified to interpret mahr-agreements given that they originate in religious contexts? Should spouses who entered a contract in the context of a religious ceremony have a right to have that contract enforced by civil courts? And, just how much should a court get involved in interpreting mahr-
94 Especially since in some cases, insisting on the enforcement of the mahr-agreement will be the only recourse a wife has to her ex-husband’s assets.
95 Zawahiri v. Alwattar, 2008-Ohio-3473. Also, Nathan Oman, Bargain- ing in the Shadow of God’s Law: Islamic Mahr Contract and the Perils of Legal Spe- cialization, 45 Wake Forest Law Review 579, 595 (2010).
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agreements? First, the idea of dealing with religious doctrine
could be considered a matter of historical continuity. Najmeh Mahmoudjafari notes that “family law has had a long history [in the US] of accommodating religious practices while still upholding the principles of the Constitution and the US legal system generally.”96 Her statement gains credence when considering the historical argument that normative conceptions of civil marriage in the West arguably emerged from a historical trajectory which has been infused with and significantly shaped by Western Christian attitudes of partnership and monogamy.
But even if one finds the argument about historical continuity persuasive, the adjudication of religious matters does present a special challenge for courts because of the precarious balance that state institutions must strike in order not to get entangled in matters of religion and religious doctrine.97 As Justice Rehnquist wisely noted in his dissent in Serbian E. Orthodox Diocese v. Milivojevich (1976), civil courts “obviously cannot avoid all such adjudications.”98 In other words, the hands-off rule concerning religious matters, justified by the argument that state involvement may “corrupt” religion, cannot reasonably be applied to all decisions which a court must make and in which religion is involved.99
b. Is the enforcement of contractual obligations that arise from contracts made in religious contexts constitutional?
96 Najmeh Mahmoudjafari, Religion and Family Law: The Possibility of Pluralistic Cooperation, 82 UMKC Law Review 1077 (2014).
97 U.S. Constitution, 1st Amendment (“Congress shall make no law re- specting an establishment of religion, or prohibiting the free exercise thereof”).
98 Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivo- jevich, 426 U.S. 696, 735, 96 S. Ct. 2372, 2392, 49 L. Ed. 2d 151 (1976) (Rehnquist dissenting).
99 Richard W. Garnett, A Hands-Off Approach to Religious Doctrine: What are we Talking About?, 84 Notre Dame Law Review 837, 858 (2009) (arguing that in some cases courts’ failure to adjudicate matters involving religious questions presents a danger of its own).
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Mahr-Agreements, U.S. Courts, and the Predicament of Muslim Women
i. Outlining the Lemon test
Let us consider the question of whether the courts’ enforcement of contractual obligations arising from contracts of religious provenance such as mahr-agreements is constitutional. Fortunately, the court previously introduced a test to determine what kind of government activity constitutes the establishment of religion. In Lemon v. Kurtzman, the Supreme Court applied a three-pronged test for determining the constitutionality of statutes regarding the establishment of religion. It held that a statute is unconstitutional when (1) it does not have a secular legislative purpose, (2) when its principal or primary effect is the advancement or inhibition of religion, and (3) when it constitutes “excessive government entanglement with religion.”100 Presupposing that the Lemon test applies to court actions, three questions concerning mahr-agreements emerge:
1. does the enforCement of a mahr-agreement have a non-seCULar PUrPose?
2. does its enforCement PrimariLy advanCe or inhibit reLigion?
3. and does the enforCement of sUCh an agreement ConstitUte exCessive government entangLement With reLigion?
ii. Does the enforcement of a mahr- agreement have a non-secular purpose?
In Avitzur v. Avitzur (1983), a Jewish couple had signed a Ketubah (premarital agreement) which stipulated the condition that the spouses submit to the jurisdiction of the Beth Din of the Rabbinical Assembly regarding marital affairs. After obtaining a civil divorce, the wife sought to execute a religious divorce through the Beth Din. The New York Court of Appeals ruled that the ex-husband’s refusal to appear before the Beth Din when summoned for religious divorce constituted a breach of
100 Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971).
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the spouses’ contract.101 The ex-husband’s counsel had argued that because of the religious provenance of the Ketubah, any relief granted to the ex-wife would “involve the civil court in impermissible consideration of a purely religious matter.”102 The Court gave no merit to the husband’s argument and stated that the ex-wife’s appeal for the husband to appear before the Beth Din constituted a demand within the secular obligations that he had contractually bound himself to.103
The Court’s ruling in Avitzur might be seen as having a non-secular purpose, but only indirectly. The wife sought a religious divorce from her husband, which could only be obtained by compelling him to appear before the Beth Din. The Court enforced the contract to ensure the husband does uphold his contractual obligation to appear before the Beth Din. Only the husband’s appearance was a matter at trial. His appearance was the direct result of having the Ketubah enforced by the Court. The Court’s enforcement of the Ketubah entailed no guarantee that the parties would actually attain a religious divorce through the Beth Din.
When applying this reasoning to the fact pattern of mahr-cases, the secular purpose of court involvement should become more apparent. Just as in the Ketubah-agreement in which the spouses had stipulated submission to the Beth Din, in a mahr-agreement, the spouses specify the husband’s provision of a previously negotiated monetary sum or asset in the event of divorce. But contrary to the religious divorce that at least indirectly results from the Court’s enforcement of the Ketubah, there is no religious divorce the spouses seek to obtain here. The purpose of court involvement is secular in that the litigation between the spouses primarily rests on the hope that the court will either grant or dismiss a monetary transaction between the parties.
But what if spouses do not care primarily about the monetary value of the mahr but the spiritual benefits attached
101 Avitzur v. Avitzur, 58 N.Y.2d 108, 112, 446 N.E.2d 136, 137 (1983). 102 Id. at 112–13. 103 Id. at 115.
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to it? After all, one might argue that for a devout Muslim, endowing or receiving the mahr may be considered a religious obligation. Indeed, in Islamic legal theory, the fulfillment of religious obligations is always associated with the creation of benefit (niʿam) for the believer in the afterlife (al-ākhira). However, the argument is discounted by the fact that Islamic legal collections are by convention separated into matters of religious worship (ʿibādāt) and social transactions (muʿāmalāt). Issues on marriage and divorce are commonly found in the latter category, and do not have a direct bearing on one’s relationship with God. As Mohammad Fadel notes, the laws governing social transactions “disclose an inner rationality that is instrumentally related to particularly human ends, such as the protection and enhancement of property.”104 This is by no means to argue that everything pertaining to social transactions in Islamic law is clear-cut secular with no spiritual value attached. Rather, it shows that argued from the vantage point of the Islamic tradition itself, marriage and divorce are primarily conceived as mechanisms for regulating and ordering society.
One should not underestimate the debilitating effects of conceptualizing bridal dowers exclusively as vestiges of religion. That is, by declaring them to be of “religious” or “divine” character, courts implicitly subscribe to an oversimplified logic that collapses the world into the religious and the secular. As Fournier has noted, this dichotomy tends to render invisible the similarities that do exist between Islamic and Western laws and the overlapping purposes that specific legal institutions often fulfill.105 The message often driven home becomes not only that a mahr is supposedly religious and foreign, but also that the legal system into which that institution is translated is ostensibly the opposite, secular and home-grown.
A more forceful objection in the debate on secularism is that the whole controversy about which Islamic law to apply
104 Mohammad H. Fadel, The Challenges of Islamic Law Adjudication in Public Reason, in S. Langvatn, M. Kumm, and W. Sadurski, eds, Public Reason and Courts 115, 128 (Cambridge University Press, 2020).
105 Pascale Fournier, Muslim Marriage in Western Courts. Lost in Trans- plantation 131 (Ashgate 2010).
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indicates that the enforcement of mahr-agreements is, in fact, primarily a matter with a non-secular purpose because the court is put in a position where it first needs to interpret religious doctrine in order to adjudicate whether the claim to a mahr can legitimately be sustained. If the primary purpose of bringing mahr-agreements before courts were to move them to declare certain religious doctrines as either true or false, the argument of a non-secular purpose could be upheld. But mahr-litigations are far from being such concerted efforts. Parties tend to be one-shotters who cannot be assumed to care about precedent or public policy when the court rules on the enforceability of their mahr-agreements. They are not likely to end up in a similar litigation again and, even if they do, they would have probably learned from previous litigation the lesson that the court will not easily honor such contracts.
iii. Does the enforcement of a mahr- agreement advance or inhibit religion?
Honoring bridal dowers, one may object, will encourage prospective spouses to contract mahr-agreements and therefore result in more Islamic marriages because couples can reasonably rely on their enforcement by the court. But under that logic, it could be said that even when enforcing an ordinary premarital agreement, more prospective spouses will be encouraged to enter such agreements in the future, resulting in the spread of more secular marriages to the detriment of religious marriages. Thus, enforcing a mahr-agreement does not advance or inhibit religion any more than the enforcement of a secular marriage contract or prenuptial.
iv. Does the enforcement of a mahr- agreement constitute excessive government entanglement with religion?
Based on the judgment in Avitzur, it seems that the secular obligations arising from marital contracts made in
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religious contexts can usually be separated neatly. In Aziz v. Aziz (1985), the New York Supreme Court followed this line of reasoning holding that the secular terms of an Islamic marriage contract, in which the payment of a dower ostensibly partakes, are enforceable independent of whether the contract was entered in a religious ceremony.106 But separating what is secular in a contract and what is not cannot always be done easily.
What constitutes “excessive” government entanglement is arguably in the eye of the beholder. However, courts have drawn relatively clear boundaries regarding how much entanglement is constitutional. In Najmi, the Ohio Court of Appeals stated that “evaluating the merits of religious doctrine or defining the contents of that doctrine” is flatly prohibited.107 The concern with evaluations of the merits of religious doctrine is obvious: evaluation creates ostensibly objective criteria against which religious beliefs can be measured making the idea of religion obsolete in that non-compliance necessarily indicates falsehood and results in the quasi-elevation of religious beliefs that do comply with criteria of “objectiveness.”
In Thomas v. Review Board (1981), the Supreme Court was confronted with the question of whether an employee who is a Jehovah’s Witness and who had been transferred to a department that manufactured turrets for military tanks could claim unemployment compensation benefits after quitting his job on the grounds of his religious beliefs.108 The dissent, written by Justice Rehnquist, drew the line of court involvement at the employee’s religious sincerity:
By granting financial benefits to persons solely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant’s belief is “religious” and whether it is sincerely held.109
106 Aziz v. Aziz, 127 Misc. 2d 1013, 1013, 488 N.Y.S.2d 123, 124 (Sup. Ct. 1985).
107 Najmi v. Najmi, 2008-Ohio-4405, ¶ 12. 108 Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707,
707, 101 S. Ct. 1425, 1426, 67 L. Ed. 2d 624 (1981). 109 Id. at 726/1436 (Rehnquist dissenting).
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The Rehnquist dissent would allow for more court involvement in mahr-litigation than has hitherto been the case. Yet courts have not endeavored to inquire into the sincerity of the spouses’ religious beliefs. They certainly could have, given that parties in mahr-litigations often make ex post claims that seem to precisely aim at discounting the religious sincerity with which they signed mahr-agreements.
For instance, the husband in Obaidi v. Qayoum argued that, despite being a Muslim and having attended Muslim wedding ceremonies prior to his own, he was unfamiliar with the concept of the mahr and did not know what he was signing. Because his argument persuaded the Court, his ex-wife lost her mahr-claim of $20,000.110 Similarly, in Zawahiri v. Alwattar (2008), the Ohio Court of Appeals granted a husband’s argument that his signing of a dower-agreement of $25,000 two hours before the wedding ceremony was coerced because in the negotiation process he was feeling “embarrassed and stressed” and ostensibly had no opportunity to consult an attorney before signing the contract.111
In both cases, the judicial refusal to inquire into how sincerely those agreements were made created a procedural and substantive advantage for the parties opposing the mahr- agreement—the ex-husbands. But the Court’s refusal to address questions such as sincerity because it fears to overstep its judicial competency is dangerous because it allows one spouse to bring forth arguments that discount their religious sincerity without being able to counterargue that their sincerity at the time of signing the mahr-agreement might have been a decisive factor outweighing other more circumstantial factors in that situation.
I do not seek to deny that focusing on the parties’ religious sincerity causes a seeming paradox: in order to enforce a supposedly secular promise that stipulates the payment of a previously agreed-on sum of money, courts end up taking into consideration the Muslim parties’ religious intentions.112 But
110 In re Marriage of Obaidi & Qayoum, 154 Wash. App. 609, 612, 226 P.3d 787, 789 (2010).
111 Zawahiri v. Alwattar, 2008-Ohio-3473, ¶ 23. 112 See Pascale Fournier, Flirting with God in Western Secular Courts:
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that paradox, I think, is inevitable in the current legal culture that refuses to acknowledge that many contracts cannot avoid being made in the shadow of religion. If one collapses the religion- secularism binary, there is minimal ground from which to argue against the enforcement of mahr-agreements especially given the sacrosanct assumption in US contract law that “[t]here is no reasonable ground for interfering with the liberty of person or the right of free contract […].”113
c. The fear of overstepping judicial authority by enforcing mahr-agreements is unfounded and the court should endeavor to more thoroughly inquire with how much religious sincerity such contracts were made
The Lemon test indicates that mahr-agreements should raise little concern with regard to constitutionality. Historically, court reluctance to get involved in doctrinal disputes of religion related to questions arising out of the Establishment Clause’s prohibition against state interference in ecclesiastical affairs of the churches. However, because in Islam there is no ecclesiastical governance, mahr-litigation does not implicate such affairs. When a mahr-agreement is brought before the court, the stakes of adjudication are set by the resolution of a judicial dispute between two parties concerning a husband’s liability to pay to his wife a bridal dower. As one-shotters to mahr-litigations, spouses have little interest beyond the material benefit or loss resulting from the court’s judgment. Furthermore, sustaining a wife’s dower claim does not advance or inhibit religion any more than the enforcement of a prenuptial would. The real issue that courts should focus on is the spouses’ religious sincerity at the time they signed the mahr-agreement. Failure to take that sincerity into consideration creates an undue advantage for the
Mahr in the West, 24 International Journal of Law, Policy and the Family 67, 77–78 (2010).
113 Lochner v. New York, 198 U.S. 45, 57, 25 S. Ct. 539, 543, 49 L. Ed. 937 (1905).
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spouse opposing the mahr-agreement—often the husband— because he can make compulsion and ignorance issues at trial without these factors being discountable by his own religious sincerity at the time of signing the contract which might, in fact, have outweighed other factors.
In terms of political philosophy, the judicial act of construing mahr-agreements may be understood in terms of Rawls’ conception of a politically liberal society, in which judges, as representatives of the ideal of public reason, interpret Islamic legal rules in a way that reconciles the historical complexity of these rules with the political values of the target jurisdiction in which they come to be applied.114 As Mohammad Fadel aptly notes,
While it would not be appropriate for a public reason– minded judge to conjecture about the ultimate, theological significance of a particular rule of Islamic law, that judge, having identified the political values vindicated by that rule, should engage in conjecture that seeks to specify how the political value embedded in that rule or case can be appropriately specified or adjusted so as to produce a politically reasonable outcome in the case before him.115
The notion of judicial conjecture, of course, implies an increased burden on judges, as it requires not only intimate familiarity with Islamic jurisprudential science and legal doctrines but also discernment as to what political values might be implicated by incorporating Islamic legal aspects or institutions into the target jurisdiction. At any rate, it should have become clear by now that in the case of mahr-agreements, there is hardly a (competing) metaphysical or broader political truth at stake when a US court is asked to enforce such agreements.
114 See Mohammad H. Fadel, The Challenges of Islamic Law Adjudica- tion in Public Reason, in S. Langvatn, M. Kumm, and W. Sadurski, eds, Public Rea- son and Courts 115, 124 (Cambridge University Press, 2020).
115 Id. at 125–126.
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Iv. conStruIng Mahr-agreeMentS
a. What is a mahr-agreement?
i. Theory 1: a mahr-agreement is a premarital agreement
Since the more widespread recognition and enforcement of premarital agreements in the US, courts and spouses have often analogized mahr-agreements to prenuptials. But why is the analogy to prenuptials so compelling to courts? And is the analogy justified? The recognition of premarital agreements by US courts constitutes a relatively recent phenomenon. In In re Marriage of Dajani (1988), a California court held that the spouses’ mahr- agreement constituted a prenuptial but was void against public policy because it ostensibly facilitated divorce by making the wife profit upon divorce.116 The divorce-profiteering argument was not specifically directed against mahr-agreements. Before the Florida Supreme Court’s ruling in Posner v. Posner in 1970,117 courts used to regularly dismiss prenuptial agreements made in contemplation of divorce on the arguments that (1) they encourage divorce-profiteering and (2) because the parties would not know their circumstances at separation at the time they contracted the marriage. To remove the barriers of enforcing prenuptial agreements, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Premarital Agreement Act (UPAA) which as of 2019 has been adopted by 27 states.118
116 In re Marriage of Dajani, 204 Cal. App. 3d 1387, 1388, 251 Cal. Rptr. 871, 871 (Ct. App. 1988). Al-Hibri has noted that the argument is flawed because it implies that Islamic marriage creates an incentive for murder given that a mahr is also due upon a husband’s death; Azizah al-Hibri quoted in Ghada G. Qaisi, A Student Note: Religious Marriage Contracts: Judicial Enforcement of “Mahr” Agreements in American Courts, 14 Journal of Law and Religion 67, 78, footnote 61 (2000–2001).
117 Posner v. Posner, 233 So. 2d 381, 385 (Fla. 1970) (holding that ante- nuptial agreements cannot per se be held unenforceable because they are contrary to public policy).
118 Uniform Law Commission, Premarital Agreement Act, accessed
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Under the UPAA, prospective spouses may contract premarital agreements on a wide array of matters so long as they are “not in violation of public policy or a statute imposing a criminal penalty.”119 Consequently, court attitudes towards prenuptials began to radically change in the 1990s to the extent that courts started treating them like ordinary contracts, often to the financial detriment of women.120
Based on empirical data, Gail Brod argues that premarital agreements increase the gendered distribution of wealth and earnings because they adversely affect women.121 These agreements put women at the risk of increased economic inequality because they primarily carry the economic and social burden of divorce.122 In The Divorce Revolution, Lenore Weitzman corroborates this impression by showing that men on average experience a 42% rise in their standard of living in the first year after a divorce, while women experience a 73% decline.123
With regard to the underlying financial motive, mahr- agreements thoroughly differ from prenuptials because the former are bargained to mitigate the adverse effects on women after divorce by ensuring their financial integrity through a one-time financial remuneration by their husbands. Therefore, the premise of stipulating a mahr contradicts the premise of a prenuptial. The former is executed because the contracting parties are aware that if it is not, the wife ends up without financial compensation upon divorce. On the contrary, the latter
March 10, 2019, https://www.uniformlaws.org/committees/community-home?Com- munityKey=77680803-bd1c-4f01-a03b-64db132a35fa.
119 Uniform Premarital Agreement Act (UPAA), § 3 (a) (8). 120 The adverse effects for women resulting from the unquestioning en-
forcement of premarital agreements are predicated on the assumption that the de jure equality of women, manifest in their equal bargaining position as contracting part- ners, also implies their de facto social and economic equality; Gail F. Brod, Premar- ital Agreements and Gender Justice, 6 Yale Journal of Law and Feminism 229, 266 (1993).
121 Id. at 252. 122 Id. at 248–249. 123 Lenore J. Weitzman, The Divorce Revolution: the unexpected social
and economic consequences for women and children in America 323 (Free Press 1985).
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is usually executed because a husband, realizing that his wife might receive “too much” upon divorce, seeks to curb what she is entitled to.
The procedural formalities of contracting a prenuptial indicate that they serve to contemplate on the nature of spousal assets and determine ownership in the case of divorce. But this argument cannot convincingly be made for a mahr-agreement. Because spouses maintain their separate financial and legal identities when entering an Islamic marriage, the spousal assets need not be contemplated on in the first place. Of course, one could argue that premarital mahr-bargaining between a prospective Muslim husband and wife involves the mutual consideration of assets. But even then, their bargaining does not aim at mitigating an entitlement that is created for the wife as a legal consequence of marriage, but rather, attempts to strike a balance between what the husband is financially capable of conferring and what the wife will need in accordance with her social class, profession, and previous lifestyle.
The analogy to prenuptials is flawed for other reasons. In Akileh, a Florida court held that a mahr-agreement was antenuptial and enforceable because it had been executed in contemplation of marriage.124 This echoes the UPAA which defines a prenuptial as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”125 But can a mahr-agreement be said to have been executed in contemplation of marriage? The husband in Zawahiri signed the mahr-agreement only two hours before the wedding ceremony.126 This timing of executing mahr-agreements is indeed not the exception but rather the rule. While a prenuptial that is made just shortly before the wedding ceremony might not be considered unenforceable per se,127 legal advice recommends
124 Akileh v. Elchahal, 666 So. 2d 246, 247 (Fla. Dist. Ct. App. 1996). 125 Uniform Premarital Agreement Act, § 1. 126 Zawahiri v. Alwattar, 2008-Ohio-3473, ¶ 23. 127 In re Marriage of Murphy, 359 Ill. App. 3d 289, 302, 834 N.E.2d 56,
67 (2005) (holding that the period of time between the execution of a prenuptial and the wedding ceremony is only one factor among many to be considered by the court); also, In re Estate of Hopkins, 166 Ill. App. 3d 652, 658, 520 N.E.2d 415, 418–19 (1988).
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that spouses sign their prenuptial as much in advance as possible, but at least thirty days before a wedding.128 In comparison, a mahr-agreement is arguably not in contemplation of marriage because it is most often executed during or only hours before the prospective spouses’ wedding ceremony.
The parallel to premarital agreements is also inaccurate because premarital agreements become effective upon marriage.129 However, in the case of a mahr-agreement, the marriage is effectuated with the husband’s payment of the advanced portion (muʿajjal) of the mahr. Thus, a mahr-agreement is unlike a prenuptial in that the institution of Islamic marriage itself is, according to the legal majority view, contingent on the partial payment of the advanced portion of the dower. This logic applies even in the rare case that a bridal dower was not specified in the marriage contract because, as mentioned earlier, most Islamic legal schools assume that the husband, irrespective of his failure to specify a dower, will provide to his wife a fair dower (ṣadāq al-mithl). In other words, the husband’s payment would merely be considered postponed, with the marriage nonetheless considered effectuated by his will to pay.
The flaws in the analogy between mahrs and prenuptials cannot be reduced to mere technicalities. Instead, they lead to real consequences, some of them adversely affecting women. One risk has often been taken for granted. That is, by creating the analogy to prenuptial agreements, claims to community property or equitable distribution might be defeated because prenups are usually made precisely to eliminate the possibility of alternative claims. Thus, where the court grants the argument that a mahr- agreement is prenuptial, it is less likely also to grant spousal claims under community property or equitable distribution.
The prenuptial analogy may also result in importing the assumption that the spouses should have had the choice not to choose a prenuptial. But as the Chaudry Court noted, the option to choose is unavailable when a mahr-agreement is entered in
128 Charles Douglas, 3 New Hampshire Practice, Family Law § 1.05 at 13 (Lexis Nexis 3d ed 2002).
129 Uniform Premarital Agreement Act (UPAA), § 4.
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a Muslim-majority country such as Pakistan where alternatives to a “prenuptial” do not exist. Stipulating a mahr was the ‘only choice’ the spouses could make. The Chaudry Court ruled that the inability to choose among options was counter to New Jersey public policy and thus refused to enforce the mahr-agreement.130 In other words, measuring the observation of a lack of alternatives against his home-grown expectations that there should have been alternative forms of financial remuneration, the judge concluded that the prenuptial was entered under compulsion and was thus unacceptable due to public policy concerns.131
US courts have yet to encounter a case in which a wife is claiming her mahr before and without a divorce. In 2004, the Berlin Kammergericht (KG) in Germany was faced with the question of whether a wife may claim her mahr without a divorce. That Court held that a wife acquires ownership over her mahr not when the parties are divorced, but when the marriage is contracted. Thus, she may demand the husband’s payment of the deferred portion of her mahr at any time during the marriage.132 The analogy to prenuptials might be difficult to sustain though, if such a case reaches a US court. That is not to say that prenuptials cannot theoretically include stipulations governing an ongoing marriage. However, courts have been somewhat reluctant to recognize causes of action in which a premarital agreement regulates an ongoing marriage.133 The fear is that judicial interference into family life will increase spousal conflicts and present severe challenges with regard to enforcement.134
Another possible litmus test for the prenuptial analogy might arise from the problem of husband-(ṭalāq) as opposed to wife-initiated divorce (khulʿ). Under Islamic law, a wife’s claim to an outstanding mahr-payment is usually forfeited when she
130 Chaudry v. Chaudry, 159 N.J. Super. 566, 571, 388 A.2d 1000, 1002 (App. Div. 1978).
131 Id. at 571. 132 Kammergericht, Beschluss vom 06.10.2004 – 3 WF 177/04, accessed
March 2, 2019, https://openjur.de/u/271640.html. 133 Laura P. Graham, The Uniform Premarital Agreement Act and Mod-
ern Social Policy: The Enforceability of Premarital Agreements Regulating the Ongo- ing Marriage, 28 Wake Forest Law Review 1037, 1043 (1993).
134 Id. at 1043.
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initiates divorce proceedings.135 In Akileh v. Elchahal, the wife’s “Islamic expert” incorrectly testified that the wife’s right to her mahr was sustained despite her filing for divorce.136 Although it could seem particularly harsh or unfair to recommend that the court refrain from enforcing mahr-agreements when a divorce is initiated by the wife, the impression of inequity is contingent on the assumption that wives have no alternative legal recourse in the case of dismissal of their mahr-agreements. If community property and equitable distribution claims were taken into account separately, the concern about inequity would probably fade.
The construction of mahr-agreements as prenuptials is prone to producing bad law. The only similarities that minimally justify the analogy are that (1) both are executed roughly prior to marriage, and (2) that a mahr’s deferred portion (muʾakhkhar), similar to payments that might become due under a prenuptial, is customarily due in the event of divorce. Although both these types of financial arrangements are contracted in the “shadow” of marriage, they differ considerably in terms of their purpose, effect, motive, and even time of execution. Prenups tend to increase the financial burden of women after divorce. Mahr- agreements curb them. Prenups are made in contemplation of spousal assets in order to determine ownership in the case of divorce. Mahr-agreements are often made in the absence of alternative entitlements to a husband’s assets. Prenups tend to be made at least a couple of days before a wedding, but preferably more than 30 days in advance. Mahr-agreements are almost invariably signed on the day of the wedding ceremony.
The analogy to prenuptial agreements presents a real danger because (1) the courts’ understanding of prenups and the interpretive standards used for them do not easily lend themselves to mahrs, (2) the adverse effects of prenups tend to spill over to mahrs, and (3) the legal and cultural rationales underlying mahr-agreements are threatened to be obliterated
135 As previously noted, there are specified grounds based on which a wife can demand a divorce by court order (tafrīq) without forfeiting her mahr-pay- ment.
136 Akileh v. Elchahal, 666 So. 2d 246, 247 (Fla. Dist. Ct. App. 1996).
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so that Islamic marriage as such becomes quite meaningless. A more severe problem that arises from the prenuptial theory is that it invariably imports the logic that state community property or equitable distribution rules cannot simultaneously be applied.137 It thus bears a significant risk for women by making alternative claims moribund.
ii. Theory 2: a mahr-agreement is a simple contract
The simple contract approach may be the most promising theory in terms of balancing out adverse effects on women and preserving their ability to make alternative claims under community property or equitable distribution. Unlike a premarital agreement, when decided that a mahr-agreement constitutes a simple contract, a wife will not automatically forfeit such claims. In addition, the simple contract theory has the advantage of fewer restrictions. It does not need to have been made either in contemplation of or prior to marriage. On the other hand, choosing to opt for the simple contract theory (under US federal or state law) mandates compliance with contract law requirements which include the “meeting of the minds,” conscionability, and the absence of duress. The simple contract-approach was embraced without reservations in Odatalla v. Odatalla (2002) where the New Jersey Superior Court held that:
Clearly, the Mahr Agreement in the case at bar is nothing more and nothing less than a simple contract between two consenting adults. It does not contravene any statute or interests of society. Rather, the Mahr Agreement continues a custom and tradition that is unique to a certain segment of our current society and is not at war
137 See also Lindsey E. Blenkhorn, Notes. Islamic Marriage Contract in American Courts: Interpreting Mahr Agreements as Prenuptials and their Effect on Muslim Women, 76 Southern California Law Review 189, 208 (2002).
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with any public morals.138
But Odatalla could be judged with relative ease because evidence was offered in the form of a videotape of the wedding ceremony showing that the husband made an offer to the wife freely and voluntarily and that the wife accepted the proposal with the same terms.139 The requirements for the validity of the contract could thus be established without any uncertainty.
Obviously not all parties to a mahr-agreement would be able to provide videotape evidence to prove that their contract was entered freely, voluntarily, with a “meeting of the minds,” and show that it was conscionable. In Afghahi v. Ghafoorian (2010), the husband claimed that the marriage contract was unconscionable because it was based on extreme inequity.140 The husband stated that he had never possessed the financial assets that he committed to paying in the mahr-agreement. Failing to present more compelling evidence for ostensible inequity, the Virginia Court of Appeals refused the argument obliging the husband to pay the agreed-on 514 gold coins to his ex-wife.141 It is difficult to tell whether the Court might not have enforced the mahr-agreement if the husband had come up with more compelling arguments that it was indeed based on severe inequity.142
The cases in which courts have applied the simple contract-theory are too few to make decisive statements about its potential implications. In Odatalla, Afghahi, and also Aziz,143 the wives were able to claim their mahrs based on this theory.
138 Odatalla v. Odatalla, 355 N.J. Super. 305, 314, 810 A.2d 93, 98 (Ch. Div. 2002).
139 Id. at 311. 140 Afghahi v. Ghafoorian, No. 1481-09-4, 2010 WL 1189383, 4 (Va. Ct.
App. Mar. 30, 2010). 141 Id. at 4. At the time the 514 Bahar-e Azadi gold coins had a value of
$141,100; id. at 4. 142 Another possibility would be for the court to make use of the Islamic
legal concept of the “fair dower” (mahr al-mithl) in such cases and determine a dower in line with husband and wife’s social standing, profession, etc.
143 Aziz v. Aziz, 127 Misc. 2d 1013, 1013, 488 N.Y.S.2d 123, 124 (Sup. Ct. 1985) (holding that a mahr-agreement is a contract the secular obligations of which can be enforced).
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When compared to the prenuptial analogy, the simple contract- approach seems preferable based on its outcome and because it is less tailored to a particular social situation and thus provides an interpretive framework that is more amenable.
Nevertheless, to qualify as a simple contract, a mahr- agreement will still have to satisfy the US contract law requirements. The theory thus reproduces some of the obstacles inherent in the prenup theory. Given the peculiar cultural format of mahr-agreements, mutual assent, offer and acceptance, and consideration can be particularly hard to prove in the absence of evidence that is not written in the marriage contract itself and court reluctance to admit parol evidence.144 For instance, in Obaidi v. Qayoum, the Court held that there was no meeting of the minds on the essential terms of the contract because the husband Qayoum was supposedly unaware of the contract’s terms until an uncle had explained them to him after the wedding.145 Duress, too, can easily arise as an issue given that many mahr- agreements would be executed at the wedding ceremony only hours before the parties wed.
The overwhelming advantage of the simple contract theory is its non-interference into women’s other claims to communal property. It, therefore, captures the nature of mahr- agreements more adequately in that those agreements are simply not made in consideration of communal or spousal assets and are generally based on the assumption that the spouses retain their separate financial identities.
iii. Theory 3: a mahr-agreement is a marriage certificate
In at least one case of Islamic divorce, a court ruled that a mahr-agreement is neither a prenuptial nor a simple contract, but rather a marriage certificate. This was in In re Marriage of Shaban (2001), a case that was peculiar in some
144 See supra note 79. 145 In re Marriage of Obaidi & Qayoum, 154 Wash. App. 609, 226 P.3d
787, 788 (2010).
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ways. Here, it was the husband who argued for the validity of the government-issued mahr-agreement using the prenuptial theory. His insistence to have the bridal dower enforced was not accidental given that his wife would have been entitled to no more than 500 Piasters ($30). Yet, the Court did not grant the husband’s argument and instead held that the mahr-agreement is a marriage certificate affirming the lower court’s application of state community property law to the parties’ assets.146
For women, a court’s granting of the marriage certificate theory will result in a definite loss of the deferred portion of the mahr. This is only an advantage if one assumes that, as in Shaban, the enforcement of mahr-agreements and the application of state community property or equitable distribution are mutually exclusive. As argued in the previous sections, mahr-agreements should not generally be understood as superseding state property rules.147
In the Shaban case, the marriage-certificate theory prevailed because the California Court of Appeal was struggling with the unusual format of the mahr-agreement. It did not find the husband’s argument that the mahr-agreement is prenuptial persuasive because the terms of the contract did not satisfy the statute of frauds.148 Meanwhile, the Court did not allow the terms it found ambiguous to be clarified at trial by admitting parol evidence. That the Court was consternated by the mahr- agreement’s format becomes apparent in the section where it states that “all three translations of the document provide far more information about the two witnesses to the wedding than they provide about any agreement of the parties.” 149 The Court seemingly felt that a contract stipulating a monetary sum should look more like a “contract” in that its epistemic focus be on the financial transaction. But that misses the point entirely. Although
146 In re Marriage of Shaban, 88 Cal. App. 4th 398, 401, 105 Cal. Rptr. 2d 863, 865 (2001).
147 Also, see Lindsey E. Blenkhorn, Notes. Islamic Marriage Contract in American Courts: Interpreting Mahr Agreements as Prenuptials and their Effect on Muslim Women, 76 Southern California Law Review 189, 208 (2002).
148 In re Marriage of Shaban, 88 Cal. App. 4th 398, 401, 105 Cal. Rptr. 2d 863, 865 (2001).
149 Id. at 407.
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a mahr-agreement indeed stipulates a financial deal, it is also more than that. That is, it is also a certification of the validity of the parties’ marriage and frequently has an aesthetic appeal to spouses. Going forward, Shaban is likely to function as a harmful precedent for Muslim wives getting a divorce. Under its theory, a mahr-agreement is considered void of any contractual obligations binding the husband. This is especially problematic given that a wife performed consideration of the contract by entering the marriage in the first place. Yet the problem with the marriage-certificate theory is more substantial. It fails to attribute any peculiar meaning to the gendered nature of Islamic marriage and the temporal and cultural situatedness of the mahr in the institution of marriage. Islamic marriage, under this theory, is mainly relegated to a cultural footnote without any real consequences. The process of translating Islamic marriage into the US legal system falls through here not because the features of Islamic marriage cannot adequately be imported into the US legal system but due to the marriage-certificate theory’s denying any peculiarity to Islamic marriage. Instead, the approach forges the idea that the spouses’ entering a mahr-agreement is equivalent to a Western-style marriage and even though they did stipulate a mahr, the application of state property rules is assumed to be better for them. The paternalizing assumptions, as well as the sense of cultural hegemony inherent in this approach, can hardly be overlooked.
b. Moving forward: identifying alternatives, enforcing mahr-agreements
i. Spouses
Make better mahr-agreements. Muslim community centers in the US have become increasingly aware of the problems that spouses might face concerning the enforcement of mahr- agreements in US jurisdictions. Responding to these challenges, some initiatives have sought to create awareness among Muslim
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couples that US courts might be charged with adjudicating on bridal dowers in case of a future divorce and ensure the legal recognition of mahr-agreements by encouraging couples to add explanatory attachments to them.150 In those, potentially ambiguous terms are clarified to account for the possibility that a family court might later have to judge on the enforceability of the mahr-agreement. Nonetheless, this is not an option available to all Muslim couples, especially not migrants or refugees who simply may not anticipate that their mahr-agreement would ever end up in an American courtroom. Lindsay Blenkhorn has claimed that “[all] Muslim women can create prenuptials, just as any other woman or man may.”151 However, her claim fails to take into consideration those women abroad who entered an Islamic marriage in a jurisdiction where a prenuptial may have been unavailable due to legal or cultural reasons. These suggestions are no cure-all remedies. They do not necessarily translate the cultural implications of Islamic marriage. But they facilitate the recognition of mahr-agreements in the US legal system by attempting to frame them in legal terms that are legible and more readily accessible to the judiciary.
ii. Imams and other religious authorities
Insist on spouses’ stipulating better mahr-agreements. As wedding officiants and upholders of Islamic marriage, religious authorities assume a central role and responsibility in ensuring that the spouses are aware of the legal consequences a mahr- agreement will have on them and all the potential obstacles those agreements may face in court. That creates a special duty to inform and provide adequate counseling to Muslim women
150 See, for instance, Iman Center, Islamic Marriage Contract, accessed March 16, 2019, http://iman-wa.org/cms/wp-content/uploads/2009/12/IMAN_Mar- riage_Contract.pdf; also see Kahf.net, Prenuptial Agreement, accessed March 16, 2019, http://monzer.kahf.com/marriage/PRENUPTIAL_AGREEMENT_FORM_ REVISED_FEB_2008.pdf .
151 Lindsey E. Blenkhorn, Notes. Islamic Marriage Contract in Ameri- can Courts: Interpreting Mahr Agreements as Prenuptials and their Effect on Muslim Women, 76 Southern California Law Review 189, 208, footnote 108 (2002).
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who bear the primary financial burden in case the court does not honor such agreements.
iii. Lawyers and political activists
Consider creative strategies for ensuring enforcement. In Zawahiri v. Alwattar, Alwattar argued that the trial court’s denial to uphold her mahr-agreement violated her right to equal protection.152 She stated that “the trial court refused to enforce the marriage contract because she is Muslim,” contending that the Court would have upheld a non-Muslim marriage contract.153 The Court rejected her argument, shielding the trial court by referring to the Establishment Clause and stating that the contract was not valid as a prenuptial.154 While precise strategies for action cannot be fleshed out here, it is worthwhile considering whether claims based on the violation of Muslim women’s equal protection rights can be made more persuasively. The court’s regular dismissal of mahr-agreements does give rise to the impression that the legal system is susceptible to more systemic and cultural biases against Islamic laws, the primary victims of which, coincidental or not, are Muslim women.
iv. Courts
Consider enforcing mahr-agreements as simple contracts under Islamic law or defer to Islamic arbitration courts. Implementing mahr-agreements by applying Islamic law under comity would arguably be an effective way to ensure the parties’ contractual obligations are upheld in accordance with spousal intent at the time the marriage was contracted and in line with Islamic legal tenets.155 Yet even where the enforcement of mahr- agreements under Islamic law is legally possible, the question of whether spousal claims under state property rules exist requires
152 Zawahiri v. Alwattar, 2008-Ohio-3473, ¶24. 153 Id. at ¶26. 154 Id. at ¶26. 155 The next section shows that this option has been severely curbed with
the passing of the foreign law ban in 32 state jurisdictions.
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further consideration. Should such claims be considered mutually exclusive with bridal dowers or in addition to them? Case law at least partially offers support to the idea that bridal dowers and state property rules may be reviewed together and balanced against each other. In Chaudry v. Chaudry, the Court used a nexus-test to balance mahr-claims against additional claims that might exist under state property rules:
where there is a sufficiently strong nexus between the marriage and this State e. g., where the parties have lived here for a substantial period of time a claim for alimony and equitable distribution may properly be considered, in the court’s discretion, after a judgment of divorce elsewhere, under N.J.S.A. 2A: 34-23, even though such relief could not have been obtained in the state or country granting the divorce.156
The Chaudrys had been married in Pakistan. After moving to the US, the husband obtained a divorce judgment back in Pakistan. The wife argued that in addition to the mahr, she was entitled to a claim for equitable distribution under New Jersey state law. The Court denied her request on the basis that a sufficient nexus between the marriage and the state of New Jersey did not exist because she had only resided in New Jersey for about two years before returning to Pakistan.157
The nexus test’s achievement, though, was an assessment of whether the spouses’ move from Pakistan to New Jersey and their residing there created an additional entitlement for alimony and equitable distribution. It presumed the gradual acculturation of the spouses to a jurisdiction that might be at odds with their home jurisdiction. The nexus test implied that the more enduring the acculturation (or, the more prolonged the stay), the more sustainable spousal claims under state property rules become, even if that kind of relief does not exist in their jurisdiction of
156 Chaudry v. Chaudry, 159 N.J. Super. 566, 577, 388 A.2d 1000, 1006 (App. Div. 1978).
157 Id. at 577.
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origin. It arguably serves as a useful instrument to counterbalance state property rules against mahr-payments and could provide the grounds for a more equitable distribution of marital assets in cases where the material life circumstances after contracting Islamic marriage and after the spouses’ migration to the US changed significantly.158
An alternative and more systemic remedy would be based on the British model of Islamic arbitration courts (so- called sharīʿa-courts). That model was enacted in 1996 under the U.K.’s Arbitration Act in order to guarantee parties that their disputes be resolved in whatever manner they seek to address them.159 State courts cannot interfere with dispute resolutions in these tribunals except if the Act sanctions such interference.160 Mona Rafeeq argues that Islamic arbitration tribunals could be furnished in the United States in a manner that advances American as well as Islamic ideas of justice.161 She suggests that by applying certain restrictions, Islamic arbitration tribunals can be prevented from abusing their authority or making judgments that would be at odds with American secular notions of justice.162 But, as she also notes, that would first require a meaningful public debate about Islamic laws in the United States.163
In Texas, one Islamic arbitration tribunal was established in 2013. Besides divorce and family matters, the tribunal arbitrates other affairs such as business disputes.164 The establishment of the tribunal was accompanied by a media outcry that rekindled the public fear of Islamic laws. In the absence of a meaningful debate about how the US judiciary can accommodate Islamic laws and how many of the values embedded in Islamic legal
158 See page 92 for a model that shows how bridal dowers can be bal- anced against state property rules in mahr-litigation; Figure 1.
159 Mona Rafeeq, Rethinking Islamic law arbitration tribunals: are they compatible with traditional American notions of justice, 28 Wisconsin International Law Journal 108, 127 (2010).
160 Id. at 127. 161 Id. at 111. 162 Id. at 128. 163 Id. at 110. 164 Islamic Tribunal, accessed March 17, 2019, https://www.islamictribu-
nal.org.
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culture could easily be reconciled with the ambitions of the US legal system, the idea of Islamic arbitration courts remains difficult to imagine. At the same time, there is a much broader liberal value at stake that is not merely or at all about Islamic laws, but rather about the citizen’s ability to choose in what manner and under what laws she wants to execute contracts, respecting the peculiarity of her choice, and the human dignity that is tied to that choice.
figUre 1: PossibLe tests for mahr-Litigations
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v. new oBStacleS on the horIzon: Mahr-agreeMentS In the Shadow of antI-Sharīʿa BIllS
In 2012, the Kansas Senate voted to adopt Bill No. 79. Section 4 of the bill specifies that a contract which is partially or fully governed by a foreign law, legal system, or legal code will be considered void and unenforceable if the substantive or procedural law that would be applied in a dispute between the parties violates Kansas’ public policy. Such public policy violation is deemed to occur where the contracting parties would not be granted the fundamental liberties, rights, and privileges that they hold under the United States and Kansas laws.165
Kansas was not the only state to adopt what is usually referred to in the literature as a “foreign law ban.” Thirty-one other states have passed similar bills, most of them banning either reliance on or enforcement of foreign laws.166 These bills seek to eliminate the court’s discretion to decide whether a specific matter would create a public policy concern by transforming certain groups of foreign laws, particularly Islamic laws, into a general public policy concern.
That Islamic laws were at the heart of legislators’ concerns becomes apparent when looking to the statutory texts and the legislative history surrounding the passing of the anti-foreign law bills. In Oklahoma, the House passed the 2010 Amendment bill to the Oklahoma constitution which explicitly singled out Islamic (Sharia) law as its intended target:
[...] The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the
165 2011 Kansas Senate Bill No. 79, Kansas Eighty-Fourth Legislature 2012 Regular Session (May 15, 2012).
166 Faiza Patel, Matthew Duss, and Amos Toh, Foreign Law Bans. Legal Uncertainties and Practical Problems, Brennan Center for Justice, Center for Ameri- can Progress 1, 18 (May 2013) (clustering states which passed a foreign law ban into four distinct groups based on the ban’s scope).
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respective courts including, but not limited to, cases of first impression.167
In its judicial review of the resolution in Awad v. Ziriax, the Court of Appeals of the Tenth Circuit struck down the Amendment arguing it violated the Establishment Clause.168 A similar situation prevailed in Idaho. But there, after the legislator’s bill had been overruled by the court for singling out “Sharia law,” the House eliminated the explicit mention of “Sharia law” enacting its practically identical foreign law ban in the form of House Bill No. 419.169
In Kansas, the bill was framed as a matter of citizens’ and especially women’s rights under US and Kansas laws. This was made clear during the Senate debates. Senator Susan Wagle encouraged members to vote for the bill in order to protect citizens from the “inhumanness” of Islamic laws. On the Senate floor, she explained that “if you vote to not adopt (the bill), it’s a vote against women” because “[t]hey stone women to death in countries that have Sharia law.”170 Thus, voting for the Kansas bill was, one would infer, supposedly a matter of advancing (Muslim) women’s rights.171
The Brennan Center for Justice predicts that foreign law
167 Enrolled House Joint Resolution 1056, 52nd Legislature, 2nd Regular Session, §1(C), (Oklahoma 2010), accessed March 9, 2019, https://www.sos.ok.gov/ documents/legislation/52nd/2010/2R/HJ/1056.pdf.
168 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012). 169 House Bill No. 419, Legislature of the State of Idaho, accessed Feb-
ruary 24, 2019, https://legislature.idaho.gov/sessioninfo/billbookmark/?yr=2018&b- n=H0419.
170 Groups urge veto of anti-Sharia law bill, Lawrence Journal-World, ac- cessed February 25, 2019, http://www2.ljworld.com/news/2012/may/18/groups-urge- veto-anti-sharia-law-bill/.
171 Such gendered discourses centering on the protection of Muslim women from the inhumane legal and social practices they face in Muslim countries are not a novel phenomenon; Edward W. Said, Orientalism, 207 (Vintage Books 1978) (showing that in Orientalist representations women are usually presented with “unlimited sensuality, […] more or less stupid, and above all […] willing”); Lila Abu-Lughod, Do Muslim Women Need Saving, 32 (Harvard University Press 2013) (arguing that the stigmatization of Muslim women as oppressed in Laura Bush’s radio address on November 17, 2001 justified US military intervention in Afghanistan and the War on Terror).
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bans will create significant disruptions in family life, particularly in the realms of marriage licenses, prenuptial agreements, adoption agreements, divorce decrees, and child custody orders which are likely to be held non-enforceable by state courts.172 The immediate effects of the ban became apparent shortly after the enactment of the Kansas ban. The District Court of Johnson County in Kansas was confronted with the case of Soleimani where the wife asserted that her mahr-agreement qualifies as a prenuptial. The Court dismissed the argument due to lack of evidence produced by the wife’s counsel. But the dictum states that if the court were to interpret the mahr-contract, it would essentially create “a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law.”173 Thus, regarding marriage contracts under Islamic law, the Brennan report might understate the impact of foreign law bans because, as this paper intended to show, such contracts have historically been challenged by US courts and are now even less likely to be honored.
Wagle’s claim is somewhat ironic. By nature, mahr- agreements defy the rationales of state property rules because they are intended to secure a woman’s livelihood after divorce without consideration of spousal assets. They create predictability, certainty, and fairness because women know what they are entitled to in the case of divorce. The mahr is not only central to Islamic marriage, but its enforcement constitutes the primary Islamic legal recourse for women in the absence of alternative claims that can be made to a husband’s financial assets when a divorce has been granted. When Wagle claims that not voting for the Kansas Bill is a “vote against women,” she underestimates the undue effects the Kansas ban will have on the lives of Muslim women because they are being deprived of that recourse to enforce the contractual obligations their husbands had agreed to. Particularly because these women have already
172 Faiza Patel, Matthew Duss, and Amos Toh, Foreign Law Bans. Legal Uncertainties and Practical Problems, Brennan Center for Justice, Center for Ameri- can Progress 1, 11 (May 2013).
173 Soleimani v. Soleimani, No. 11CV4668, 31 (Johnson County Dist. Ct. 2013).
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performed their contractual obligations by entering marriage. Refusing to implement mahr-agreements systematically threatens to permanently unsettle the ways in which Islamic marriage is crafted as an institution in which the bargaining powers of husband and wife maintained in marriage depend on and are equalized precisely because a dower is stipulated prior to wedlock.
concluSIon
This paper was dedicated to scrutinizing the theories US courts have employed to construe mahr-agreements and the adverse effects these constructions have on Muslim women. Although no approach has yet assumed normative status, the analogy to prenuptials has been applied most often due to the ostensible similarities that prenuptials have with mahr- agreements. But the analogy is not persuasive because apart from being roughly stipulated prior to a wedding, a mahr-agreement differs significantly in terms of intent, effect, motive, and even its precise time of execution. Unlike prenuptials, mahr-agreements are not made in contemplation of marriage, as is defined by US law, nor do they increase the financial burden on women upon divorce. Most importantly, the analogy to prenuptial agreements risks forfeiting women’s claims under state property rules because prenuptials are most commonly made in order to avoid spousal division of assets in case of a divorce. The simple contract theory is a more promising candidate for enforcing mahr-agreements. Under that theory, mahr-agreements are subject to less scrutiny with regard to their particular purpose or time of execution. Yet, providing proof that mahr-agreements satisfy US contract law requirements can create a burden for those seeking enforcement because not only the manner in which mahr-agreements are entered, but also their physical format, can easily create doubt as to whether they were contracted with mutual assent, offer and acceptance, and with spousal consideration. Where there is no videotape evidence from the wedding ceremony such as in Odatalla, a
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husband’s claim that the contract was entered under duress or with ignorance has the potential to be granted by the court. The marriage certificate theory carries no conceivable advantage, except if a woman seeks to prevent the contractual obligations in a mahr-agreement from being enforced by the court. It denies peculiarity to the institution of Islamic marriage by upholding it merely as a cultural practice without any hard consequences. Under these theories, Muslim women’s prospects of getting their mahr-agreements enforced by a US court are dire. Although facially neutral, each theory tends to reinforce substantive inequality between men and women by producing effects that are almost exclusively detrimental to women. In addition, gendered inequality is also entrenched in the legal obstacles that women encounter in mahr-litigations. At least some of these obstacles may be resolved by the courts. For instance, the court’s anxiety to violate the Establishment Clause by getting entangled in religious interpretations is often unfounded. On the one hand, under FRCP 44.1, the court is granted extensive liberties to make use of parol evidence. Thus, where the court first determines what the ambiguous terms in a mahr-agreement are and then hears expert witnesses clarify these terms, such contracts are not necessarily being rewritten. On the other hand, instead of religious interpretations that the court sometimes feels it must judge on, it is most often the sincerity with which spouses contracted a mahr-agreement that should be part of the court’s consideration of whether such contracts are enforceable. This paper also meant to show that the constructions of mahr-agreements, and their regular dismissal, directly impact the institution of Islamic marriage by uprooting the ways in which conceptions of gender and authority in these marriages have traditionally been configured. The construction of mahr- agreements, whatever theory the courts avail themselves of, creates precedents to which other courts, lawyers and Muslim couples will look to in mahr-litigations. The enforcement problems that pertain to the theories that mahr-agreements are prenuptials, simple contracts, or religious marriage certificates
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currently convey the message that mahr-agreements are unlikely to be honored by courts. The foreign law ban, by casting doubts on whether courts should at all tend to such agreements, reinforces that impression. Thus, the sense that mahr-agreements are unlikely to be upheld by US courts increases the real- time bargaining power of Muslim husbands in marriage to the detriment of women because the partners’ bargaining abilities are designed to rest on the predictability that a mahr will be due in case of unilateral husband-divorce (ṭalāq). Against the backdrop of a growing epistemic certainty that mahr-agreements have little to no value in the American courtroom, the lives and livelihoods of Muslim women become more disenfranchised and more susceptible to husband-initiated divorce. Thinking of mahr-enforceability in dynamic terms, one should account for how parties to mahr-litigations may respond if such agreements were more regularly enforced. If that were the case, women could be induced to negotiate higher mahrs. But that argument is discounted by the fact that women currently ending up in mahr-litigations often do not seem to have assumed that their mahr-agreement would not be enforceable upon divorce. Therefore, standardized enforceability would not necessarily change how women approach mahr-negotiations. Things are different for men, though. Because the mahr-litigation market currently sends out mixed signals with a tendency towards non- enforcement, certitude that such agreements are enforceable would likely induce men to more carefully consider whether they can afford such agreements. Such certitude arguably could make men want to avoid such contracts, which might make women more seriously consider other options such as state property rules. These arguments, however, assume that enforceability of a mahr-agreement on US soil is something the parties can anticipate when they get married and would thus exclude Islamic marriages that are concluded without any knowledge or anticipation that the parties will one day find themselves before a US court. There is a more disquieting problem underlying the translation of mahr-agreements into the US legal system. The
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predominant construction of mahr-agreements as prenuptials presumes similarity between mahrs and prenuptial agreements where there is in fact little. By imposing the prenuptial framework onto mahr-agreements, the peculiarities of these contracts tend to be assimilated within a legal philosophy that seemingly defines itself in opposition to and as being incapable of accommodating the needs of the most vulnerable in society. In this process of assimilation, Islamic marriage becomes virtually unrecognizable and meaningless because the very reasons for spouses choosing this particular form of matrimony are relegated into a cultural footnote.
acknowledgeMentS
I want to thank Aziz Huq, Tom Ginsburg, Thomas Miles, and my exceptional peers in the year-long seminar “Canonical Ideas in American Legal Thought” at the University of Chicago Law School for their many suggestions and critical feedback on an earlier iteration of this paper; the two anonymous reviewers at the Journal of Islamic Law for their corrections and suggestions helping me avoid some embarrassing mistakes; Eman Elshaikh for her critical eye and time to work with me on the introduction; and Haider Hamoudi for his encouragement and kind words.
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Published with license by Koninklijke Brill NV | doi:10.1163/22117954-bja10083 © Mahmoud Jaraba, 2023 | ISSN: 2211-792X (print) 2211-7954 (online)
Journal of Muslims in Europe 13 (2024) 1–23
brill.com/jome
Local German Salafists and Saudi Arabia An Unholy Alliance
Mahmoud Jaraba | ORCID: 0000-0003-0423-945X Friedrich-Alexander-Universität Erlangen-Nürnberg (FAU), Erlangen, Germany [email protected]
Abstract
Salafism in Germany is often viewed as a product of Saudi Arabia’s efforts to spread its conservative brand of Islam around the world. In recent years, the Kingdom has attempted to change its image both domestically and internationally by distinguish- ing itself from Salafism. The goal of this article is to look at how local Salafists, who have been supported by Saudi Arabia and religiously and ideologically shaped by Saudi Salafi scholars, are attempting to construct a localised and radicalised version of Salafism that is grounded in the German context, while also being critical of Saudi Arabia’s social liberalisation.
Keywords
salafism – wahhabism – Germany – Saudi Arabia – Muslim rulers – Christians – Jews – hisba
1 Introduction
In Germany, Salafism is often viewed in the media, political discourses and academic circles as a product of Saudi Arabian foreign policy. In December 2015, the then German vice-chancellor Sigmar Gabriel, explicitly and publicly accusing Saudi Arabia of ‘funding Islamic extremism in the West’, called for an end to the Kingdom’s funding of Salafi mosques in Germany and worldwide (Henderson, 2015). In December 2016, the German media cited an ‘interim
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assessment’ by Germany’s foreign and domestic intelligence agencies, which reported that religious organisations from Saudi Arabia and the Gulf states of Kuwait and Qatar were suspected of supporting German Salafists with the approval of their governments. The purpose of increasing missionary activi- ties, including the construction of mosques and training facilities and the dis- patch of preachers, was said to be to spread a fundamentalist version of Islam (Mascolo, 2016).
In fact, Saudi Arabia has used its wealth to promote its version of Sunni Islam, known as Wahhabism,1 both at home and abroad since it became a pow- erful oil-producing state in the 1950s, and especially since the 1973 oil crisis (Meijer, 2009: 8). It provided a variety of religious services and financial sup- port to Salafi organisations and individuals in Europe and other parts of the world as part of its agenda to increase its political and ideological influence and counter the spread of Shi’ism, especially in the wake of the 1979 Iranian revolution (Al-Rasheed, 2007: 105). Since the 1970s, the global assertion of Saudi Salafism has resulted in the establishment of Salafi-oriented mosques and teaching institutes throughout European Muslim communities (Bano, 2018: 12). In Germany, for instance, Saudi Arabia has funded Salafist groups by establishing mosques and cultural centres, sponsoring pilgrimages to Mecca, and awarding full scholarships to students to study at prestigious Saudi uni- versities (Wiedl, 2002: 17–23; Biskup, 2017: 5). When these students returned to their home countries, they became the primary agents for spreading Salafism among the local population (Pall and de Koning, 2017: 79).
Following the 11 September 2001 terrorist attacks, attention was drawn to the Kingdom when it was made known that 15 of the 19 airplane hijackers were Saudi nationals (Weismann, 2021: 272). Since then, much of the litera- ture links the Kingdom’s foreign policies to the rise of radicalism and terror- ism by providing money, resources and legitimacy to fundamentalist Salafi groups that promote a radical and inflexible interpretation of Islam (Gold, 2003). However, Saudi Arabia rejects such accusations, and some Saudi schol- ars claim that the Muslim Brotherhood’s ideology and Syed Qutb’s writings, rather than Saudi Salafi scholars, are to blame for inspiring jihadis (al-Saud, 2021: 176). Recently, Saudi Arabia has attempted to rebrand itself both domesti- cally and internationally. In 2017, Mohammed bin Salman became the crown prince and de facto ruler of Saudi Arabia. As part of his Vision 2030, he intends, by implementing economic and legal reforms in favour of social liberalisation,
1 Wahhabi scholars prefer to be identified as ‘Salafi’ rather than ‘Wahhabi’, as the latter term has been perceived as a derogatory (see Bano, 2021a: 11; see also Commins, 2015).
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to transform the kingdom into a modern nation. In addition, he has advocated a return to ‘moderate Islam’, and this has been extensively covered by Western media and received with both praise and scepticism (Bano, 2021a: 1). The ban on women driving cars, entering stadiums or going to the cinema has been lifted. Guardianship and the prohibition of social mixing between the sexes have also been relaxed. In addition, Mohammed bin Salman has introduced policies to control and weaken Saudi Salafism, which historically played an important role in shaping education, the judiciary, public order, business and finance (Mouline, 2014: ch. 2). Although Saudi Salafi authority has been dimin- ishing since the reign of King Abdullah bin Abdulaziz Al Saud (2005–15), Salafi scholars and actors face a new socio-political reality prompted by Mohammed bin Salman’s attempts to undermine their status and influence on politics and society. Some popular Salafi scholars have been imprisoned, and the power of the mutawa’a (the religious police), who oversaw the application of pub- lic moral regulations and observances such as gender segregation, has been curbed (Bano, 2021a: 47). Some observers have gone so far as to conclude that Saudi Arabia is turning the page on Salafism (Blin, 2021: 50).
Because Mohammed bin Salman is using his political power to show that he is in control of internal criticism and opposition, Salafi scholars and local actors in Saudi Arabia are responding to the recent changes tentatively and with extreme caution (Blin, 2021). The fact that the Crown Prince would not hesitate to use absolute repression to suppress any form of resistance is a clear reason why Salafi scholars are choosing to remain silent about the ongoing changes, no matter how much they despise them (Bano, 2021a: 49; Sinani, 2022: 8). In a place like Saudi Arabia, where political, social and religious dis- courses are firmly under authoritarian control and research activity is often subject to censorship and restrictions (see Al-Rasheed, 2007: 213; Haykel, Lacroix and Hegghammer, 2015: 3), it is difficult to undertake research into how local political and religious actors, especially Salafi scholars, are reacting to the social liberalisation and how it is affecting their ideological and religious discourses.
Local Salafists living abroad are now more autonomous and less reliant on direct Saudi financial support than they were previously (Bano, 2021a), which makes it possible for us to investigate their positions and reactions vis-à-vis the recent changes in Saudi Arabia. The question here is how local Salafists, who have been supported by Saudi Arabia and religiously and ideologically shaped by Saudi Salafi scholars, are attempting to construct a localised and radicalised version of Salafism that is grounded in the German context, while also being critical of Saudi Arabia’s social liberalisation. Using ethnographic data from
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the field and 30 Friday sermons, I argue that local Salafists’ efforts to construct a localised and radicalised version of Salafism in Germany are aimed not only at establishing a distinct identity but also at challenging the perceived reli- gious authority of Saudi Arabia in the global Salafi movement. It is an unholy alliance between local German Salafists and the Saudi state, with the former attempting to assert their own authority within local Muslim communities and the latter attempting to cleanse the past.
I shall proceed as follows. After briefly outlining my methods of collecting the research data, I go on to describe how Salafists in Germany relate to Saudi Arabia. Then, I discuss three topics related to this relationship: the legitimacy of the Saudi regime, the practice of hisba (commanding good and forbidding wrong), and how Salafists promote an anti-Christian narrative.
2 Methodology
Given the dearth of fieldwork research into how Salafists interact with local Muslim communities (Hummel, Kamp and Spielhaus, 2016), I examine here the Salafist community in Germany through its local-level interactions. All the Salafists I met were active in their local communities but had no media pres- ence; none of them assumed leadership roles within the Salafist movement, and none were women. This is therefore very much an examination of the situ- ation from below.
Between January 2016 and December 2017, I conducted ethnographic field- work in Bavaria (Germany) to study, among other things, Salafist networks, ideology and relationships with Saudi Arabia. Much of my research centred on the al-Tawhid Mosque, which I visited regularly between April 2016 and April 2017. The mosque dates back to the mid-1990s when a small group of Salafists came together to establish a prayer room. A decade later, they moved to new, bigger, rented premises, which they turned into a prayer room with two separate parts, one for men and a smaller one for women, a small library, a kitchen and a classroom in which to teach the Qur’an and the Arabic lan- guage. Approximately, 350 to 500 people, the vast majority of whom are men, attend the mosque’s Friday sermons, but at other times the number of visitors rarely exceeds 50 people. It is important to note in this context that not all the visitors to this mosque are committed Salafists, for they include many ordinary Muslims and refugees who do not follow the Salafist ideology.
Penetrating the al-Tawhid Mosque was not easy at first because many Salafists refuse to label or identify themselves as such through fear of the
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possible security consequences that may follow if they talk openly with researchers (Damir-Geilsdorf and Menzfeld, 2020: 142). After several unsuc- cessful attempts to interview Salafists in the mosque, my friend Nayef,2 who happened to be living near the mosque and was friendly with Hasan, the mosque’s imam, came to my rescue. Nayef and I are from the same country and had studied at the same university before coming to Germany to pursue our postgraduate studies. Nayef is not a practising Muslim, but knows Imam Hasan well, and, after introducing him to me, mutual trust was slowly built up between us and, subsequently, other mosque members. In addition, as a native Arabic speaker, it was easy for me to communicate with Imam Hasan in his mother tongue and it was not long before he made me feel as if I were a ‘part’ of the mosque community. I was invited, for example, to participate in various activities such as talks, debates and meals with other mosque members and was even introduced to some of the Imam’s close friends.
I used three basic methods to collect data from the al-Tawhid Mosque. First, once I had built up a trustful relationship with Imam Hasan, I recorded 30 Friday sermons, which I later transcribed and analysed. Second, as a Muslim, I was able to participate in various mosque activities such as praying and attending lectures, seminars, religious lessons and social events, including Iftar (the evening meal to break the Ramadan fast), and several weddings. Third, I conducted 13 semi-structured narrative interviews, as well as dozens of informal conversations, with Imam Hasan and other Salafists who were either actively involved in or regularly visited the mosque. Most of these inter- views were in-depth, face-to-face, and lasted between one hour and, in some instances, more than three hours.
In addition, after Friday sermons or night prayers, Imam Hasan and I used to have tea together in his office to discuss social, political and religious topics that related to Muslims in Germany, Europe and the Muslim world. I found that these conversations, in which other Salafists also often participated, provided valuable insights into the various perspectives on Salafist discourses and ideol- ogy. Because these talks were more open-ended than formal interviews, they provided me with a better understanding of exactly how the Salafists sought to disseminate their ideology in local Muslim communities through informal net- works. These informal networks often rely on personal relationships and trust between individuals, making them a powerful tool for disseminating ideas and beliefs. As Zoltan Pall and Martjin de Koning (2017: 82) correctly point out, informality is an integral part of Salafist networks because
2 All names in this study have been anonymised to ensure privacy.
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The participants of the movement are usually linked to each other via interpersonal ties that develop during events like religious lessons (halaqa, pl. halaqat), Friday sermons or ad hoc meetings. Informality is important to any understanding of how transnational Salafi net- works work.
After completing the fieldwork in December 2017, I continued following and observing many Salafists from the al-Tawhid Mosque, including Imam Hasan, on social media and sometimes had long conversations and chats with them. In addition, I visited the mosque several times after my fieldwork had been completed to follow up with some interviews and to update myself on new internal developments and changes. This is not the first attempt to use ethno- graphic fieldwork to study Salafism,3 but it may well be the first in Germany to use participant observation, interviews and analyses of Friday sermons to establish how narratives about the past and present are being transmitted via face-to-face interactions. Through personal contacts, informal meetings, ser- mons and social activities, local Salafist actors can negotiate how the narratives of transnational Salafi networks and global Salafism are passed down to and received by the local communities. The Salafist groups’ mobilisation mecha- nisms and attempts to explore and define their specific paths towards achiev- ing an ‘Islamic community’ often operate informally and in local contexts.
3 German Salafists and Saudi Arabia
Muslim communities in Germany are ethnically and religiously diverse, with community members hailing from a variety of countries, including Turkey, the Middle East and Africa. Demographic and statistical information indicates that Germany is today home to around 5,300,000–5,600,000 Muslims (accounting for 6.4%–6.7% of the total population) (BAMF, 2021). While many Muslim groups and organisations are fully engaged in political, cultural and social life, Salafists remain one of the most controversial groups. Even though their numbers are relatively small compared to the total population of Muslims, they have been a cause for concern because of their potential to radicalise and increasingly to influence young Muslims in Germany. According to the Federal Office for the Protection of the Constitution, the number of Salafists in Germany increased from around 4,500 in 2012 to around 11,900 in 2021. Islamist
3 For an example of such empirical research in Europe, see de Koning, 2020.
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motivation has led 1,150 German citizens and nationals to travel to Syria and Iraq to join ‘Islamic State’ (ISIS or Daesh) or al-Qaeda-affiliated groups.4
To improve Saudi Arabia’s image in Germany and in the West in general, Riyadh closed the controversial King Fahd Academy in Bonn in July 2017. It also halted the construction of the academy’s nearly finished second campus in Berlin. German media had repeatedly accused the academy, which was using the Saudi curriculum to teach 150 students from kindergarten to grade 12, of spreading extremism among Muslims. After the attacks on the World Trade Center in Washington, DC, on 11 September 2001, the Federal Office for the Protection of the Constitution started to accuse the academy of harbouring known Islamist extremists. In addition, during a sermon in the academy’s mosque in 2003, there was an open call for a ‘holy war’ against non-Muslims. A subsequent investigation into the textbooks used in the academy by the schools’ supervisory authority substantiated the suspicion that fundamen- talist views were being disseminated. The textbooks were found to contain anti-Jewish and anti-Western sentiments, as well as justifications for the use of violence against people of other faiths and the perpetuation of gender inequal- ity (Biskup, 2017: 4).
In an interview with the Frankfurter Allgemeine Zeitung, Saudi Ambassador Awwad Alawwad described the planned closure of the Fahd Academy as part of the kingdom’s Vision 2030 and the improvement in bilateral relations with Germany (Burger and Hermann, 2016). Then, on 31 May 2016, in a Der Tagesspiegel interview on the export of terror to Germany and Europe from Saudi Arabia, Ambassador Alawwad stressed that the kingdom was cooperat- ing with its EU partners to address the terrorist threat via intelligence coopera- tion and the criminalisation of terrorist financing. He added that Saudi Arabia was ‘also working to reach the minds and hearts of young people, to establish the concept of a moderate and tolerant Islam, and to remove the intellectual basis for any rationale for extremism and terrorism’ (Casdorff, 2016).
Despite all this, Salafist ideas and ideology imported from Saudi Arabia continue to be disseminated at local and national levels in Germany, mostly through informal and personal networks that operate to influence the local Muslim communities. To establish the al-Tawhid Mosque and to carry out da‘wa (the call to Islam, mission), Imam Hasan told me that he and his col- leagues had benefited from substantial financial support from Saudi Arabia and other Gulf partners. In one interview (in Bavaria in June 2016), he informed me that external donations were essential for the survival of the mosque and that
4 Bundesamt für Verfassungsschutz, Islamismus und islamistischer Terrorismus, https://kurze links.de/fly3 (accessed 6 October 2022).
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‘without [such] support, the da‘wa would not have continued’. Imam Hasan did not, however, specify the source of that support or whether it was continu- ing. However, he expressed strong loyalty to Saudi Salafi scholars, especially ‘Abd al-Aziz Bin Baz, the grand mufti of Saudi Arabia from 1993 to 1999, and Muhammad ibn Salih al-Uthaymin, one of the greatest Salafi authorities. In his Friday sermons, Imam Hasan has used the religious interpretations and fatwas (legal opinions on a point of Islamic law) of these and other Salafi scholars to guide the political, social and economic behaviour of his Muslim followers, as well as to establish his religious authority within his mosque community.5
In the 1980s, when Saudi Arabia started to promote its Salafist form of Islam to the rest of the world, including Muslim communities in Germany, Imam Hasan was himself swayed by it. He had come from an Arab country to study engineering in Germany in the early 1970s and, within six years, had acquired a degree and was working for a German company. In the mid-1980s, however, Imam Hasan gradually became much more religious. He started to wear a tra- ditional Arab garment jalabiya, grow a lihya (beard), perform the five prayers at the right times of day, fast in the holy month of Ramadan, memorise the Qur’an, make the pilgrimage to Mecca and give alms. He adopted Islamic val- ues and ethics and paid particular attention to gender segregation. Before being ‘born again’ into Islam, Imam Hasan had not been particularly religious, but once his priorities changed, he began to work on spreading what he called da‘wa, by inviting people to return to Allah (God), enlightening their minds and encouraging them to follow the Islamic path (interview, Bavaria, June 2016).
Printed in Arabic and German, the founding documents of al-Tawhid Mosque specify that its main purpose is to spread the ‘Islamic call’ in Germany and promote a correct understanding of risalat al-tawhid (‘the message of the oneness of God’) by following the ‘method of people who adhere to the Sunna and who unite upon it’. The documents also stipulate that the mosque will follow manhaj al-salaf al-salih (the method of the pious ancestors or pre- decessors). The Friday sermons and my interviews made it abundantly clear that the mosque saw its main tasks as making religion triumphant by fighting shirk (idolatry), kuffar (unbelievers) and bid‘a (illicit innovations), and by rid- ding Islam of Sufis and secularism. In my fieldwork, I observed the mosque promoting the Salafist ideology through the sale of religious books and the distribution of brochures and small booklets published by either Egyptian or Saudi Salafist institutions. For instance, Muhammad ibn ‘Abd al-Wahhab’s
5 The establishment and making of Islamic authority among Muslims in Western Europe have been recently discussed in a special issue of JOME; see Sunier and Buskens, 2022.
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The Book of Monotheism is recommended as an important aid to understand- ing the creed and faith of Islam and the mosque bookshelves also contain sev- eral bound copies of fatwas by Salafi scholars such as Bin Baz and al-Uthaymin.
Despite their support, Saudi funding and Salafi scholars appear insuffi- ciently able to determine the religious and political strategies of the al-Tawhid Mosque. This is because Imam Hasan and local Salafists have developed a variety of religious and political positions tailored to their specific local and political contexts. As I shall show in the following sections, they delegitimise the Saudi regime, criticising its social liberalisation and promotion of radical anti-Muslim messages.
4 The Legitimacy of the Saudi Regime
Salafists disagree about withdrawing legitimacy from certain Muslim rulers or using jihad against them, including those of Saudi Arabia (Haykel, 2009: 50). Although the Kingdom promotes Salafist ideology around the world, not all Salafists are loyal to its ruling regime. Salafi jihadist groups have been oppos- ing the regime in Saudi Arabia and questioning its legitimacy since its founda- tion (Commins, 2006: 172; Meijer, 2009: 10). Jihadists refuse to legitimate any Islamic government that fails to comply with shari‘a and believe that ‘rebel- lion against these rulers is inevitable, even if it entails the use of force’ (Abu Rumman, 2014: 78). In contrast, the followers of Madkhalism, which the Saudi government promoted in the early 1990s to counter the popular Saudi Sahwa movement (Islamic revivalism),6 believe that all Muslim regimes, irrespective of their politics or behaviour, are legitimate and deserving of loyalty (Bitter and Frazer, 2016: 2). According to them, ‘a ruler’s legitimacy is not suspected as long as he is a Muslim’ (Abu Rumman 2014: 74), and this includes Saudi Arabia’s Muslim rulers. In light of the Arab Spring, they attack and forbid any rebellion against Muslim rulers, even those who are autocratic or authoritarian (El Gomati, 2015: 120).
In the al-Tawhid Mosque, I observed a spectrum of political and ideologi- cal positions among Salafists, ranging from a utopian view to a more radical stance. Some refrain from commenting on or criticising the Saudi regime and its new social liberalisation, as they want to preserve their utopian view of it as the holiest Muslim land on Earth. The Arabian Peninsula, as the birthplace of
6 For an exhaustive history of the Sahwa, its development and impact on Saudi Arabia’s poli- cies, see Lacroix, 2011.
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Islam, has a strong symbolic currency for Muslim youth looking for an ‘authen- tic’ Islamic identity, particularly in Western contexts (see Pall and de Koning, 2017: 93). Bashir, a German convert in his mid-thirties, sees Saudi Arabia as the only state that applies shari‘a and the best place, including Mecca, for a Muslim believer to live and practise his religion. Bashir said that he longed to leave the kuffar state (Germany) and live where shari‘a is dominant (conver- sation, Bavaria, 21 May 2017). In a telephone conversation at the end of 2021, he said that he had started an online BA course in shari‘a and Arabic with a university in Saudi Arabia and that, after he finished his degree, he intended to move to the Kingdom.
However, not all Salafists at al-Tawhid Mosque share the same view; some have formulated a clear and radical position on Muslim rulers, including those of Saudi Arabia. In contrast to the traditional Saudi Salafi scholars’ position, which advocates pledging obedience to the ruler to avoid fitna (civil strife) (Bano, 2021a: 50), Imam Hasan argues that Islamic rulers (wali al-amr, plural wulat al-amr) derive their legitimacy from their practices and beliefs and that it is obligatory to obey them so long as they obey God and His messenger. If a wali al-amr violates or deviates from the law of God, Imam Hasan regards him as a ‘kafir’ (unbeliever). Upholding Imam Hasan’s position, Thabit, who is a member of the mosque administration, quoted the following tradition (hadith) of the Prophet Muhammad (al-Bukhari, 1997: 163):
A Muslim should listen to and obey (the order of his Muslim ruler) whether he likes it or not, as long as his orders involve no one in disobe- dience (to Allah), but if an act of disobedience (to Allah) is imposed, one should not listen to it or obey it.
On the basis of this hadith, Thabit argues that obedience is owed to wali al-amr so long as he obeys God and His Prophet and eschews wrongdoings. One’s obe- dience and loyalty to a wali al-amr, Thabit stresses, do not extend to dynastic rulers (meaning the Saudi royal family) or those who fail to follow Qur’anic and Prophetic guidelines in their judgement; theirs is not total but conditional obe- dience (interview, Bavaria, June 2017). In two Friday sermons (on 21 October and 23 December 2016), Imam Hasan claimed that the Saudi rulers were nei- ther applying shari‘a nor following tawhid (divine oneness, or monotheism). Strict adherence to the concept of tawhid is one of the core beliefs of Salafism, which makes it easy for them to declare fellow Muslims to be outside the fold of Islam (Bano, 2021a: 1). Imam Hasan thus condemned the regime as an ‘unbe- lieving system’ (nizam kafir) and, to support his argument, quoted the follow- ing hadith (al-Bukhari, 1997: 22–3):
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The most hated persons to Allah are three: (1) a person who deviates from the right conduct, i.e. an evil doer in the Haram (sanctuaries of Mecca and Medina); (2) a person who seeks that the traditions of the pre-Islamic Period of Ignorance should remain in Islam; (3) and a person who seeks to shed somebody’s blood without any right.
Although some Islamic scholars understand this hadith differently, Imam Hasan used this interpretation to argue that the rule of the Saudi monarchs, who hold the title of ‘Custodian of the Two Holy Sanctuaries’, is no longer Muslim but a nizam kafir. He defended his argument on two grounds. First, the Saudi rulers have returned to the pre-Islamic age of jahiliyya (ignorance); they have become ignorant of their religion and are practising wrong beliefs. Second, they refuse to defend ummat al-islam (the Islamic community), that is, the Sunni Muslims fighting the Shi‘a influence in Syria and the region. With the battle in Syria intensifying, during a Friday sermon on 21 October 2016, Imam Hasan angrily accused the Saudi royal family of being kuffar, and of conspir- ing with the ‘enemies of Islam’ instead of supporting and protecting ummat al-islam. He then added that:
Those who are serving the Kaaba (in Mecca) are kuffar. … Throughout their rule, Islam has been at war, and yet they never defended Islam. Rather, they have been preoccupied with pursuing their personal inter- ests; starting from the first king up until the current ruler. They neither defend Islam nor worry about Dar al-Islam (the abode of Islam). Blood has been shed in Iraq because of them. Blood has been shed in Syria because of them. Blood has been shed in Egypt because of them. All they ever want is to live in luxury.
Although Imam Hasan stopped short of declaring jihad against the Saudi rulers, his implied message is that rebelling against and ‘excommunicating (takfir) the Saudi state for its close relations with the West’ (Meijer, 2009: 10) are justified and in keeping with the jihadist discourse (see Izquierdo-Brichs and Etherington, 2017: 19).
Rejecting the legitimacy of the current Saudi regime is related not only to its foreign policies but also to recent social changes towards liberalisation in the Kingdom. Muhammad, who is of Egyptian origin and has lived in Germany since the 1990s, opposes the Saudi regime as ‘a system lacking legitimacy’ because recent social liberalisation has ended the historical alliance between the Salafists and the ruling Al Saud family. Salafists at al-Tawhid Mosque believe that the historical alliance between the Salafists and the ruling family has been
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repealed because the Saudi regime is no longer the guardian of religion or the implementor of shari‘a. When I asked Muhammad if he considered the rulers of Saudi Arabia as wulat al-amr who must be obeyed, his definite answer was no. He added (interview, Bavaria, September 2016):
Historically, there was a contract between the Saudi state and ummat al-Islam to preserve religion and spread da‘wa. However, what is happen- ing now? Who ended this contract? Today, Saudi Arabia has become an American state. Those rulers let infidels dominate Muslims. Is this what constitutes a religion? Where is the oil made for the Muslims going? Where is their money going? Why are they putting the ‘ulama (religious schol- ars) in jail? Why are they allowing women to adorn themselves? Why do they open gambling halls and casinos and [host] parties? Is this religion? This is kufr and no Muslim can accept it. The bay‘a (juridico-religious contract) that the Saud family enjoyed ended a long time ago.
To understand better what Muhammad meant by bay‘a, it is helpful to refer to the historical alliance between Muhammad ibn ‘Abd al-Wahhab and Muhammad ibn Saud.7 After the latter succeeded in establishing the first Saudi state in 1744 in al-Diriyya, close to Riyadh, a new chapter of a religious-political alliance began between Ibn Saud and Ibn ‘Abd al-Wahhab. In the early eigh- teenth century, Ibn ‘Abd al-Wahhab started a revivalist movement and founded what is now known as Wahhabism.8 To revive the legacy of the medieval theo- logian Taqi al-Din ibn Taymiyya (1263–1328), he called for a strict interpreta- tion of the Qur’an and a meticulous return to the most literal interpretation of Islamic texts. The interests of Ibn ‘Abd al-Wahhab, which lay in spreading da‘wa, were compatible with those of Ibn Saud, who sought to expand his power base in the region (Commins, 2006: 19; Bano, 2021a: 8). Therefore, a ‘symbiotic relationship’ between the political and religious authorities was established around 1744, which, as Nabil Mouline (2014: 11) explains, ‘allowed each partner to consolidate [his] positions and extend [his] respective spheres of influence’. This contributed to the establishment of the first Saudi state, which the Salafists at al-Tawhid Mosque consider the only legitimate one.
The Saudis assumed political and military leadership of the first Saudi state, while Ibn ‘Abd al-Wahhab and his followers took over the religious leadership. This created clearly-defined spheres of influence, with preaching, guidance
7 For a discussion of Muhammad ibn ‘Abd al-Wahhab’s theology and worldview, see Delong- Bas, 2004.
8 For the development of Wahhabi thought and ideology, see Commins, 2006.
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and enjoining what is good and forbidding what is evil left to the al-Shaykh family (the descendants of Ibn ‘Abd al-Wahhab), and the family of Saud responsible for public matters, politics, defence and foreign relations (Meijer, 2009: 8; Bano, 2021a: 9). This meant that, from its inception, Saudi Arabia was aligned with the spread of Wahhabism/Salafism. Although the al-Shaykh fam- ily has recently lost some of its influence in Saudi Arabia, for many Salafists at the al-Tawhid Mosque, the Saudi Salafi scholars and their religious teaching remain important religious guides in all aspects of life.
Most of the Salafists I interviewed believe that recent social liberalisation in Saudi Arabia has eroded the historical alliance. Consequently, the basis of the agreement, namely ‘spreading da‘wa in return for ta‘a (obedience)’, has also collapsed and, as Samir indicated (telephone interview, 13 September 2018), the legitimacy of the ruler and the duty to obey him have fallen away because those who are ruling today are not only ‘oppressors’ but also murtaddun (apos- tates), and thus infidels.
5 The Hisba: A Role Model
One good reason to oppose Saudi rulers is that they limit the jurisdiction of the community, which is in charge of hisba (literally accountability), known as hayʾat al-amr bi-l-maʿruf wa-l-nahi ʿan al-munkar (the Committee for the Promotion of Virtue and the Repression of Vice). The term hisba ‘refers gener- ally to the duty of all Muslims to promote moral rectitude and more specifi- cally applies to the function of supervising markets, ensuring the honesty of merchants and craftspeople’ (Thielmann, 2017: 63). In other words, its main purpose is to supervise the market, maintain public order and protect society from acts of immorality.9
While hisba existed during the Abbasid caliphate (750–1258), the Salafi scholars and the Saudi state revived and institutionalised it by establishing the religious police in the 1920s to enforce public morality and the punctual observance of ritual prayers (Meijer, 2009: 11–12). By enforcing religious obliga- tions and imposing its conservative moral order, over time the state came to use Salafism as a means of controlling society. Religious police officers would clamp down on any behaviour considered anti-Islamic. They ensured that Islamic rules, laws and ethics were observed, that the five daily prayers were attended and that women and men were segregated in public (Thielmann, 2017: 63). Particular restrictions were imposed to limit the freedom and
9 For a historical reflection on hisba, see Cook, 2004.
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movement of women: they had to stay at home and away from public places, wear a veil and not drive a car. In addition, the religious police would follow up on any infringements and even arrest women for any acts they regarded as transgressions.
However, this all changed in April 2016 when the Saudi government restricted the authority of the religious police to stop, detain or follow people, or ask them to show their identity documents. In addition, their working hours were reduced to comply with the official ones (Bano, 2021a: 48). As Yasmine Farouk and Nathan Brown (2021) put it, perhaps the most striking recent change in Saudi Arabia ‘is one that has left only the slightest formal trace: the near disappearance from public life of the once-prominent religious police’.
Although there is not a single Saudi national among the Salafists at al-Tawhid Mosque, many of them look upon the religious police as a model worth emu- lating in all Muslim areas. They also believe that curtailing its role in Saudi Arabia will result in an erosion of public morals. In a telephone interview in September 2019, Jawad, a Salafist activist who had been living in Germany for more than ten years, argued that curbing the jurisdiction of the religious police would undermine the religious identity of Saudi society. Another Salafist, Bilal, believes that limiting the role of the religious police will eventually encourage the country to adopt ‘secular infidelity systems’, which will encourage ‘nudity, the harassment of women, the consumption of alcohol, and other taboos’ (interview, Bavaria, April 2017).
According to the dogmatic view of Ibn Taymiyya, the practice of hisba, which he considers the ultimate form of jihad (Meijer, 2009: 11–12), cannot be achieved without the state’s power and authority (Jackson, 2013: 53). In the absence of such state power in Germany, however, as many of the interviewees emphasised, Muslim individuals and groups can assume that role. Thielmann (2017: 64) explains that, with the spread of Salafism on an international level,
the understanding of hisba as an obligation incumbent upon every indi- vidual Muslim, and not primarily a collective duty to be fulfilled by per- sons appointed by the ruler, became more widely accepted. That shift has led to moral activism by Muslim individuals and groups worldwide, who urge fellow Muslims to respect, for example, Islamic dress codes, to fast during Ramadan, and to attend prayers.
The Prophetic tradition has established three modes of performing the duty and practice of hisba – namely with the hand, the tongue, and the heart – the last being the minimum compatible with faith (Cook, 2004: 95). This way of thinking was evident in the Friday sermons, for Imam Hasan frequently urged
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worshippers to practise hisba in Germany and he promised those who did that their reward on the day of judgement would be paradise. On 13 January 2017, Imam Hasan explained that there are two steps toward practising hisba. The first is through what he referred to as the ‘softness stage’, which focuses on peaceful da‘wa as a way of freeing Muslims who fail to practise and implement Islam in their everyday lives from sin and immorality.
However, if Muslims reject peaceful da‘wa, they should move to the second stage and practise the hisba by force.10 Imam Hasan did not explain what he meant by ‘force’ but, for those who failed to respond to da‘wa, the implications were clearly serious. The focus of this stage is on Muslims who fail to practise Islam, who commit sins, or who spread evil in the world by drinking alcohol, committing adultery, fornicating or encouraging women to wear revealing clothes. With such people, no mercy or compromise should be shown, for, as Imam Hasan put it, this would indicate a weakness of faith. This could encour- age violence being inflicted on those the Salafists might think had failed to respond to their da‘wa or had continued to practise munkar (evil).
6 Anti-Christian Narratives
As part of its recent diplomacy towards non-Muslims, the Kingdom started to adopt a new religious discourse towards Christians and Jews overseas. In 1962, the Muslim World League (MWL), which subsequently became the Saudis’ most important instrument for exporting and spreading Salafism worldwide (Commins, 2006: 152), including in Germany (Biskup, 2017: 2), was founded in Riyadh. As part of a recent Saudi attempt to promote ‘moderate Islam’, the MWL has a new task. This is to support interfaith work and to engage in dia- logue with non-Salafis and non-Muslims. The head of the League and former minister of justice, Shaykh Mohammad bin ‘Abdulkarim Al-Issa, has become a prominent international spokesperson for promoting coexistence and dia- logue with non-Muslims (Farouk and Brown, 2021). To promote his new inter-faith dialogue, Al-Issa (2021) met Pope Francis at the Vatican and visited Auschwitz for a memorial event. He was the most senior Muslim to mark the anniversary of the liberation of Auschwitz (Al-Issa, 2020) by visiting the site of the interfaith mission.
However, such initiatives ‘from above’ do little to change the ideological ori- entations of Salafists in Germany inspired by the Saudi Salafism discourses of
10 For a discussion on whether and in what circumstances it is permitted to use violence when exercising hisba, see Abdelsalam, 2005.
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hatred towards non-Muslims. The Friday sermons contained strong xenopho- bic sentiments towards Christians and Jews, which my Salafist interviewees reflected, and it became very clear to me that they are strongly opposed to any rapprochement or dialogue with followers of other faiths, which is something they derive from the Saudi Salafi fatwas. Ibn Baz, who drew on the Qur’an to support his argument (Q 3: 85), asserted that Islam was the last of all religions and therefore the only true one that all people should follow – ‘and whoever seeks a way other than submission to God, it will not be accepted from him, and he will be a loser in the world to come’ (Ali, 1990: 60). In other words, Islam has replaced Christianity and Judaism11 and, according to the Salafists, is the only route to salvation.
It is important to note that this view is commonplace in various Islamic circles and is frequently upheld as an accepted theological principle. Although the theological debate is beyond the scope of this study, my aim here is merely to show how Salafists use such narratives to create an image of other religious groups, especially Christians and Jews, as enemies, and that the question of coexistence with them never arises. The Qur’anic verse (Q 2: 120) that says, ‘the Jews and Christians will never be pleased with you until you follow their way’ (Ali, 1990: 26) is frequently cited as evidence of the impossibility of Muslims being able to form relationships with them.
The Salafists at al-Tawhid Mosque refuse to recognise Christianity because they believe that it is a ‘corrupted religion’ and thus contradicts Islam in both matters of faith and the origins of the religion. This is what Imam Hasan was referring to on 23 December 2016 when he said that claiming that the Messiah is the ‘Son of God’ is false and should be rejected. The followers of tawhid should say, ‘There is no deity but God, and I bear witness that Muhammad is the mes- senger of God. .... They worship no prophet and no king, no saint, no tree, and no stone. Muslims worship God alone.’ Imam Hasan mockingly continued his attack on Christians by denying that Jesus’s birthday, which Christians cele- brate at Christmas, was known. He asked, ‘is his birthday in December? Or in January? Is it in winter or in summer?’ He threw these questions into the room to stress the falsehood of the principles of the Christian faith and all the rites and traditions associated with it.
Convinced as they are of the falsehood of the foundations of Christianity, Salafists at al-Tawhid Mosque spurn any idea of dialogue between Christians and Muslims and regard a rapprochement between the two religions as a
11 See a fatwa by Ibn Baz claiming that Islam is the true religion and all other religions are wrong: https://kurzelinks.de/5q2n (accessed 14 February 2022).
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waste of time.12 They see the relationship between Muslims and Christians as only one of rivalry, conflict and enmity. To reassert his position, on 8 July 2016, Imam Hasan equated Muslims who engage in interfaith dialogue with the ‘little children’ whom Church representatives have carefully selected because ‘they are unable to hold a public debate on television with real Muslim scholars’, He added:
the enemies of Islam [Christians] choose some of these children [other leaders of Muslim communities] to participate with them in unheard-of festivities where boys and girls kiss, and they [the Muslim representa- tives] say: we want to show them [Christians] the tolerance of Islam. Is it the tolerance of Islam to rebel against God? Is it the tolerance of Islam to spread corruption? Or that people should be taught decency, dignity, and pride!
By shunning coexistence and refusing to engage in religious dialogue, the Salafists at al-Tawhid Mosque hope to achieve several interrelated goals. First, they want to draw attention to the unequal nature of many of the dialogues that take place between Muslim and church groups, for they claim that the Christians deliberately construct their arguments with the intention of undermining the Muslim position. Second, the Salafists want to delegitimise Muslims who, they believe, by engaging in such dialogue, damage the reputa- tion of other Muslims too. And third, they want to convey that, since Islam embodies everything and is the last of the religions – and to doubt this is to be an unbeliever – dialogue with nonbelievers would be pointless.
There may be some well-known Salafists, such as Yasir Qadhi, who attempt to relate Islam to Western reality (Bano, 2022: 27). This, however, as I discov- ered during my fieldwork, does not apply to local Salafists in Germany. The al-Tawhid Mosque Salafists not only convey their sense of superiority by which they choose to reject dialogue with the followers of other religions, but they also justify misanthropy and isolationist practices. According to their reason- ing concerning the superiority of Islam, any form of human or social coopera- tion between followers of different religions is rejected, which is the traditional Saudi Salafi position. When asked whether shaking hands with a Christian or Jew invalidates ritual ablution, Ibn Baz answered in the negative and
12 Numerous fatwas are disseminated on Salafist websites that reject dialogue and rap- prochement between religions. See, for example, the fatwa ‘on calling for the rapproche- ment of religions’ on the website Islam: Question and Answer: https://kurzelinks.de/mqkj (accessed 14 February 2022).
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issued a fatwa to that effect. However, there are fatwas that prohibit visiting churches and places of worship or attending Christian marriage ceremonies in churches.13 Instead, it is the duty of Muslims to stay away from Christians and to hate them for the sake of God. These viewpoints were reflected in the Friday sermons in which Imam Hasan urged Muslims not to associate with Christians, to isolate themselves from them, not to consider them as friends14 and not to adopt their culture. He advised them to stay away from Christian festivals and social occasions, and even to refrain from greeting Christians. Rather, he encouraged Muslims to be ‘hostile and hateful (to Christians) for the sake of God’, to isolate themselves from them and refuse to integrate. In other words, not only should they keep themselves apart from German society, but they should also actively oppose integration and social harmony every step of the way.
Instead of dialogue and integration, Salafists at al-Tawhid Mosque argue that the historical Crusades, which took place between the eleventh and fourteenth centuries, are still being waged and that Muslims and Christians are engaged in an endless war. In a sermon on 21 October 2016, Imam Hasan reminded Muslims of these cruel wars and their traumatic consequences for Muslims. As he put it, ‘have they forgotten that on the day the feet of the horses sank into the ground in Palestine, after the murder of 70,000 inhabitants of Palestine, the horses’ feet waded in blood? Have we forgotten that already?’ According to his logic, the Crusades have never ended, and the wars in the Middle East are the historical continuation of the religious wars against Islam and Muslims.
7 Conclusion
In this article, I have examined how local Salafists in Germany have developed a type of grassroots activism in which authority and control are decentral- ised from the Saudi regime. I have shown that, while Saudi Salafi teachings continue to provide a core ideological framework for local Salafists, they have managed to articulate critiques of the Saudi regime and its social liberalisa- tion within that framework. Three major findings highlight the complexity of
13 See Abdel Al Hayy Yusuf’s fatwa of 28 September 2009 on the website The Way of Islam: https://kurzelinks.de/pp2k (accessed 22 May 2020).
14 See the related fatwa on Ibn Baz’s official website: https://kurzelinks.de/po90 (accessed 14 February 2022).
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Salafism as a global movement and the need for nuanced analysis of its local manifestations:
First, despite financial and ideological support from Saudi Arabia to the al-Tawhid Mosque, Salafists in local German contexts have adapted their reli- gious practices and political activism to reflect local social and political con- texts. Saudi Arabia has been successful in implanting Salafism in many societies around the world since its efforts to spread Salafism began in the 1970s. This, however, does not imply that Salafists have become an essential component of its soft power. On the contrary, Salafists in local communities express strong opposition to the Saudi regime, even attacking it during Friday sermons. They see the Saudi regime as corrupt and un-Islamic and believe it has betrayed Islamic principles. It is worth noting that they employ the same weapons that Saudi Arabia exported to the world, namely the strict Salafist interpretation of religious texts based on the Wahhabi principles that were promoted by the Saudi regime for decades. The irony of the situation is highlighted by the fact that the same ideology that Saudi Arabia has spread globally is now being used against them.
Second, since its founding, Saudi Arabia has worked to establish a deeply conservative social-religious system. The Kingdom is now attempting to change this by implementing social liberalisation. Salafists in Germany, on the other hand, continue to see the Saudi conservative social model as the ideal system that Muslims can emulate, even in Western societies. This model includes strict adherence to Islamic law and a rejection of Western values and practices, which has led to concerns about the potential for radicalisation and extremism among Salafist communities in Germany. While Saudi Arabia tries to restrict the hisba system, Salafists in Germany are working to implement it among German Muslim communities.
Third, any attempts by the Kingdom to open up to non-Salafi and non- Muslim communities will almost certainly face strong Salafi opposition. As demonstrated by the Salafis at al-Tawhid Mosque, this step is unlikely to per- suade many Salafis who still hold traditional Salafi positions. Friday sermons primarily targeted secular Muslims, Shiites, Sufis and non-Muslims (Christians and Jews). Salafis at al-Tawhid Mosque are staunch supporters of their tradi- tional beliefs and may be resistant to attempts to persuade them to change their minds. They believe that their interpretation of Islam is the only correct one and regard other sects as heretics. This will make peaceful coexistence with other Muslim and non-Muslim communities with differing beliefs and practices difficult, potentially leading to conflicts and tensions in areas where Salafists are active and spreading their ideology.
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To summaries, the reaction of the Salafists at al-Tawhid Mosque to Saudi attempts to introduce ‘moderate Islam’ shows that it is not easy to shift, even moderately, a behaviour, ideology and identity that has been reinforced over many decades. My fieldwork reveals local Salafists’ resistance to any attempt to change their traditional beliefs and practices, as they see any form of change as a threat to their religious and cultural identity, which they regard as non-negotiable. The unholy alliance between local German Salafists and the Saudi state exemplifies how the global Salafist movement is not a mono- lithic entity, but rather a complex network of local and transnational actors with diverse interests and agendas. While the Saudi state may initially have viewed Salafism as a means of expanding its influence and promoting its own interests, it is now confronted with the unintended consequences of this strat- egy, including the emergence of a radicalised and potentially dangerous Salafi community in Germany.
Acknowledgements
The author would like to express his sincere appreciation to Thijl Sunier and the reviewers for their valuable feedback and constructive comments, which significantly improved the quality of this article. I would like also to express my special thanks of gratitude to Mathias Rohe and Jörn Thielmann for all of their generous support and unwavering guidance throughout my research project.
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Turkish German Muslims and Comedy Entertainment
CURRENT ISSUES IN ISLAM
Editiorial Board
Baderin, Mashood, SOAS, University of London Fadil, Nadia, KU Leuven Goddeeris, Idesbald, KU Leuven Hashemi, Nader, University of Denver Leman, Johan, GCIS, emeritus, KU Leuven Nicaise, Ides, KU Leuven Pang, Ching Lin, University of Antwerp and KU Leuven Platti, Emilio, emeritus, KU Leuven Tayob, Abdulkader, University of Cape Town Stallaert, Christiane, University of Antwerp and KU Leuven Toğuşlu, Erkan, GCIS, KU Leuven Zemni, Sami, Universiteit Gent
Turkish German Muslims and Comedy
Entertainment Settling into Mainstream
Culture in the 21st Century
Benjamin Nickl
Leuven University Press
Published with the support of the
Popular Culture Association of Australia and New Zealand University of Sydney and KU Leuven Fund for Fair Open Access
Published in 2020 by Leuven University Press / Presses Universitaires de Louvain / Universitaire Pers Leuven. Minderbroedersstraat 4, B-3000 Leuven (Belgium). © Benjamin Nickl, 2020
This book is published under a Creative Commons Attribution Non-Commercial Non-Derivative 4.0 Licence.
The licence allows you to share, copy, distribute and transmit the work for personal and non- commercial use providing author and publisher attribution is clearly stated. Attribution should include the following information: B. Nickl. 2019. Turkish German Muslims and Comedy Entertainment: Settling into Mainstream Culture in the 21st Century. Leuven, Leuven University Press. (CC BY-NC-ND 4.0) Further details about Creative Commons licences are available at http://creativecommons.org/ licenses/
ISBN 978 94 6270 238 7 (Paperback) ISBN 978 94 6166 341 2 (ePDF) ISBN 978 94 6166 342 9 (ePUB) https://doi.org/10.11116/9789461663412
D / 2020 / 1869 / 57 NUR: 717, 732
Layout: Coco Bookmedia Cover design: Paul Verrept
Contents
Preface 7
introduction 13 Finding a Voice of Their Own
chapter i Germanness, Othering and Ethnic Comedy 41
chapter ii Clash Films 61
chapter iii Television Narratives of Ottoman Invasion and Cohabitation 93
chapter iv Bridget Jones’s Halal Diary 119
chapter v Funny Online Kanakism 149
chapter vi Settling into “Post-Migrant” Mainstream Culture 173
conclusion 183 European Muslims’ Issues: Turkish German Comedy in a Global Entertainment and Identity Politics Framework
Notes 191
References 201
CHAPTER I Germanness, Othering and Ethnic Comedy
“I was aware, of course, that Turkish and Arab pupils in German schools cause more (and other) problems than Italians, Russians, or Poles.”
—Thilo Sarrazin (in Hostile Takeover: How Islam Impedes Progress and Threatens Society, 2018, English language edition, original title: Feindliche Übernahme:
Wie der Islam den Fortschritt behindert und die Gesellschaft bedroht)
Summary
Ethnic comedy in Germany has a long and complex history. One can tell it in many ways. I give an account of it in this chapter in direct relationship to Germany’s historical identity as a shrinking nation after WWII, and as a country in identity turmoil after 1989. Divisive ethnic humour, or more specifically anti-multicultural propaganda, has lent itself to German nationalism and cultural politics of Othering. It has allowed bio- Germans to expand and to keep united their imagined sphere of ethnically and racially pure Germanness while factually losing German territory after defeat in armed combat or struggling to redefine German national identity after reunification. Pro-social ethnic comedy, in turn, has enabled Turkish German comedy artists and producers of Turkish German comedy culture to carve out and widen a space for the depiction of their presence in this segregated and nationalist German imaginary.
In and Out of “Heimat” and Germanness: Historical Contexts of Turkish German Living
The history of Turkish German integration is testimony to a push-and-pull dynamic around the acceptance of ethnic Otherness in Germany. This has to do, as I have explained in the introduction, with German mainstream culture’s
turkish german muslims and comedy entertainment42
preoccupation with German space as “Heimat”, a home to belong to locally and at the same time nationally. It is inherently imbued with trans-historical Germanness and expansionist desires (Eigler and Kugele, 2012: 1-4; Blickle, 2004).1 It is crucial to understand that “Heimat” links the definition of what is German to who can be German and hence may be allowed to reside in the country and call it their home. For this, Joseph Goebbels’ invocation of “Heimat” through Nazi-sanctioned films in the late 1930s and Hermann Goering’s propagandist call to arms to protect the German “Heim” as the last refuge of all German-speaking individuals are instructive. As Von Moltke has found, the Nazis’ persistent uses of “Heimat”, the German Home, on screen and in the mass media are revealing for their modern bio-politics. Nevertheless, they also relied heavily on anti-modernist sentiments around German homeland (Von Moltke, 2005: 58-62). The Third Reich’s national-socialist agenda depended on proto-Fascist ideologies of national inclusion and expulsion, which were already deeply engrained in Germany’s literary canon and mainstream culture (see the introduction). Turkish German comedy had and still has to go up against precisely this specific feature of German national culture. That is why Turkish German comedy makers and writers frequently employ the German Home as a shorthand. Whether it is a German neighbourhood, a German family home or the country’s cultural institutions, landscapes and major cities, Turkish German comedy frequently starts out by showing Germany on film, in books and on the small screen or on stage as a restrictive and, ultimately, anti-Muslim space.
Nowhere has the German Home moved into greater prominence than in discussions about the suitability of non-traditional German Others to live in it as a national community. Islam, which offers an identity deeply embedded in religious beliefs and social practices and the language of the Quran, is therefore seen as a disturbance because it offers another, worldwide community of belonging: that is ummah, or Muslim community, a fundamental concept in Islam expressing the essential unity and theoretical equality of Muslims from diverse cultural and geographical settings (Roy, 2013). A vast diaspora of Muslim communities knows what it means to be part of Islam, which fosters an identity beyond a specific space or place or national culture. It is for this reason that German anti-immigration voices like that of Thilo Sarrazin try to frame Islam as anti-“Heimat” and anti- German. This segregationist identity discourse implies that the German Home and Islam cannot coexist or make for congruent, Muslim-German identities. The PEGIDA movement, which is short for Patriotic Europeans against the Islamisation of the Occident, made this thinly veiled form of anti-ethnic and
germanness, othering and ethnic comedy 43
anti-Muslim hate speech its mission when the organisation formed mob-like in October 2014 on the streets of Dresden in East Germany. Head of PEGIDA at the time, Lutz Bachmann, declared that Muslimness could not be separated from local regions in the Middle East or certain political domains, languages and ways of life diametrically opposed to “Heimat”. Berman has proven that this divisive rhetoric is not new and in fact has a long history (Berman, 2014). “Heimat” in Germany can mean inclusive of difference, though it has consistently functioned as a perfidious identity marker in recent years (Vieten, 2016: 110). The German Home remains ridden with much polarising trepidation about being an ethnically open civil society. It is “one of the main elements in contemporary German renegotiations of what it means to be German and to live in a German-speaking environment” (Blickle, 2004: 154).
One implication of the regressive qualities of the German Home is that attitudes towards non-ethnic Germanness are fickle. The embrace of diasporic Muslimness, of ummah, can dissipate quickly if it is seen as a subversive, disruptive element outside the control of Germany’s ethnocentric nationalism. The German and Austrian mainstream press and news media, for instance, were quick to talk about the fairy tale of September 2015. It relates to an immense wave of sympathy towards Syrian refugees arriving to the cheers of locals at Vienna and Munich central stations. A few months later, Vieten and Valentine note, management of those Muslim Others who came to Germany as refuges and asylum seekers in the new century took on quite a different tone. “Problems arise where structural asymmetry with respect to power and resources is underestimated. […] Resentments—and even arson attacks—in some of the more rural areas of Germany, both in the east and west, remind us that cosmopolitanism(s) means plurality and complexity” (Vieten and Valentine, 2016: 2). Turkish German labour migrants found themselves in the same situation some few decades earlier. Coming to the country from several areas and different ethnic communities of Turkey to rebuild war-ravaged West Germany, many faced indiscriminate harassment in cross-cultural contexts and negative treatments at the workplace (Chin, 2009). However, the notion of working guest rather than permanent resident was even more consequential for the Turkish German community. Turkish Germans encountered a defensiveness after most of them chose to stay instead of returning to Turkey. In 1973, the number of Turkish Germans had risen to 605,000 in West Germany. It was at that time that the West German government introduced a total halt to all foreign labour recruitment. In 1974, the Turkish German community consisted of 60 per cent of working individuals
turkish german muslims and comedy entertainment44
and 20 per cent of non-working spouses, while another 20 per cent were second- generation children. German mainstream culture looked at these numbers with concern, as they meant that Turkish German families had replaced single labour migrant households. Turkish German population growth had become sustainable. The community would not leave.
In both these situations, the skewed fairy tale and the permanent guests’ rejection point to the dilemma of the German Home. Otherness is welcomed until it threatens the established population’s material, cultural and social interests. Political movements, or at least public demands, to oust Turkish and Muslim Others from Germany have grown in number and visibility over the past couple of years. This development suggests that the post-cosmopolitan narrative of “Heimat” is still as poorly understood in 2020 as it was 60 years ago when Turkish labourers were invited to come. As part of the efforts to understand, I discuss the discriminatory aspect of xenophobic thought in, and through, German “Heimat” around WWII and German reunification. Anti-immigration thinking and xenophobia were cultivated during the aftermath of one war and leading up to another, and after a split country was reunited. Whether essentialising ideas about Turkishness sit on the excessively racist or the subtle end of the spectrum, Turkish German comedy entertainment engages them through filmic, literary, performance-based or televised representations. It is bound up with the local and the national German Home, the present and the past, Self and Other, and so links to the specific as well as the general realities of life in multi-ethnic German society.
Ethnic Bias in Jewish German and Turkish German Lives: WWII and “Wende”
An Important Historical Continuity It is essential to understand that the discrimination against Turkish Germans is no isolated phenomenon in German culture’s historical dealings with ethno- nationalism. WWII (1939-1945) and the immediate reunification period (1989-mid 1990s) in Germany demarcate two intellectual battlegrounds in German history, which illustrate an ongoing connection between Germanness, ethnicity and religion. Though for different reasons, the two periods overlap in their hostility against non-Christian and non-ethnic German cultures. WWII and “Wende” map the contours of the function of ethnic bias, which German
germanness, othering and ethnic comedy 45
majority culture used to deflect responsibility for its warmongering and the cost of its capitalist restructuring. Yet again, those were not entirely new or modern occurrences of racism and religious bias in German culture, nor should they be considered in geo-political isolation, as I expand on in chapter six and the conclusion. Like anti-Semitism, anti-Turkism is one of Germany’s oldest institutionalised hatreds. Both discriminatory practices date back in much of Europe to the early Middle Ages. One can trace the theoretical and doctrinal context for these phobic developments while finding that, compared side by side, it took anti-Semitism and anti-Turkism at their height only decades to penetrate the general stock of political thinking and undermine liberal values in the German public. There are also similar patterns of continuity between the cultural and intellectual rooting of anti-Jewish depictions in public discourse in the lead-up to WWII and Islamophobic representations of Turkish identities in reunified Germany. It is important in this respect to stress that the killing of millions of Jewish people across Europe stands in no comparison to localised attacks at Turkish German communities. What matters here though is the aggressive propulsion of hate against alleged non-Germanness and that hate’s continuation over such a long period of time. The discrimination against Jews and Turks, or those perceived as Jewish and Turkish, is marked by denigration, dehumanisation, subjugation and definition of racial lineage; most notably, this form of bigotry has usually been sanctioned by the state or national elites. It has also been characterised by readily available ethnic derision as a means of public ridicule of the supposedly wrong kind of Germanness in newspaper comics and in propaganda posters (Pratt Ewing, 2008).
Another factor in the repeat cycles of public hatred against Jewishness and Turkishness is the nation. A cataclysmic development in the narrative of hate against Jews and Turks came about when Germany turned to modern nationalism. Incidents against Jewish communities in German-speaking territories were in the main sporadic outbreaks of anti-Jewish hate up to the 18th century (Mack, 2003). The conditions enabling a systematic grouping of political ideologies around anti-Semitism had not existed before the late 1870s (see the introduction). However, with a sense of homogenous Germanness upon which to build the national German identity at the turn of the 19th century came the suggestion that Jewishness could not blend in with Germanness. Then, shortly before the height of the Nazi Holocaust, Jewish German people were denied their citizenship rights and forced to live in ghettos. “Indeed”, Pulzer points out that “the word anti-Semitism itself - with its attempt to draw on the support of science - made
turkish german muslims and comedy entertainment46
its first appearance [only] in 1879” (Pulzer, 1988: ix). Equally contemporaneous was the idea that Jewish Germans had a transnational and diasporic subjectivity similar to Muslim ummah and that it was seen by the secular establishment as a non-homeland-related source of identity (Geller and Morris, 2016: 3-8). Due to the difference in its social and religious organisation, Jewishness was characterised increasingly in Germany by political and community leaders as the opposite of what the members of a modern nation should desire; a Self, which was primarily linked to the new political image of a self-contained nationalism and an ethno- centric Germanness. German elites projected it as a national vanguard. They regarded themselves as members of a European society, who believed that non- Christian religions would necessarily lead to flawed forms of state governance. The construction of Turkish alterity in reunified Germany thus occurred by the same means of ethno-cultural dichotomy as Jewish Othering in the early 20th century. That is, according to Schneider, as oppositional structures and binary central terms: German and Other (Schneider, 2002: 14-16). There was accepted Germanness and German sociality on one side, and there were Jews and Turks with their allegedly anti-national identity attachments beyond the German “Kulturstaat” or culture, religion and language as definition of statehood on the other. That boundary was and is to this day more efficient than any physical border to separate majority from minority communities in Germany, as the resurfacing right-wing rhetoric of AfD and PEGIDA suggests.
Expulsion from Mainstream Culture The modern age of the German nation state and two of its most crucial events in recent history have worked fundamentally against ethnic minorities. Jewishness was presented as incompatible with Germanness for allegedly having cost Germans a loss of territory after WWI. Later, in the early 1990s, Turkishness was blamed for Germany’s loss of economic dominance despite regaining the GDR as Federal Germany’s national territory. Also echoing the Jewish German case during WWII, the German majority society collapsed varied Turkish groups into a Muslim Other after 1989. And they did so decidedly rapidly (Kaya, 2007: 483). The reduction of different forms of Turkish identities to a clichéd image of The Turk revolved around a functional discourse of anti-Ottoman hostility. It goes back to the allegedly despotic Sultans of the Orient, who were transforming their subjects into lazy and anti-intellectual slaves on the back of an Islamic doctrine. Such negative images of Turkish forms of governance helped to create the ethno- cultural trope of the so-called Turkish menace. Along with the trope of the lazy
germanness, othering and ethnic comedy 47
dumb Turk, it had served Latin Christianity to define itself as a pan-European Christianity since the First Crusade, during which Jerusalem was conquered in 1099 (Berman, 2011). The 14th century saw an effort to strengthen Europe by proclaiming Muslims as an external threat to European countries. The process aided in the construction of European Christendom and an ethno-German, Christian Self. That kind of Christian would work hard so that the nation could thrive as a stand-in for a collective body of Germanness and Christianity and its interior be safe because it was homogenous. This ethnic and religious bias planted the seeds of an exclusionary identity practice. From the mid-15th century onwards it became the custom in German-language texts to equate Muslims with Turks. When early modern German texts mention a person having turned Turk, the meaning is that they have converted to Islam, hence making the ethnic category Turk identical with the religious category of Muslimness. Consequently, with Germany’s economic downturn after German reunification, the prejudice of the anti-European, non-Christian and lazy Turk returned. Dissatisfied Germans, especially in cities and regions with high unemployment numbers and little previous contact with Muslimness and Turkish German communities, reproduced a well-rehearsed bias against Turkishness. In East German cities and areas where socio-economic trauma and the fear of instability in the country were especially high, communities developed an even more heightened sense of anti-Muslimness by projecting the German East’s frustrations on The Turk.2
However, the exclusion discourse around Turkish Germans did not stop there. If a new national German identity was to be created, a new political order to be legitimised after the fall of the Berlin wall, it could happen only by ethnic “boundary maintenance” (White, 1997: 754-769) of some kind. Dissatisfied right-wingers sought to externalise and essentialise, and thus de-territorialise, the Turkish German community within the re-drawn borders of Germany. All the while, Germany’s new federal government axed many of its infrastructure projects while the country bled manufacturing jobs. This meant that thousands of Turkish German blue-collar workers, especially those located in the reunified city of Berlin and the suburban areas around it, lost their employment in the short few months following official reunification in October 1990. “When the wall fell, it fell on us”, was a common wisdom circulating among the Turkish German community at the time. The “Dolchstoßlegende“, or stab-in-the-back legend, attributing insidious internal betrayal to Germany’s defeat in WWI, had similarly put blame on Jewish Germans as the ethnic Others in Germany responsible for the majority society’s problems. Entirely untrue, of course, and
turkish german muslims and comedy entertainment48
impossible because of their miniscule proportions of the general population, both groups still drew hate and fault for the consequences of German majority society’s policies (Schneider, 2008). Jewish German and Turkish German Others instantly became less German, whether they had fought alongside German troops or were working on the same assembly lines.
The Janus Face of Ethnic Humour in Germany
“Oppressed groups often use humor as a form of attack on the value of a dominant society or social” (Charney, 2005: 3-4), writes Charney. I have laid out the reasons for and subjects of attack by Turkish German comedy in the new century, though an exhaustive overview of all contemporary forms of that comedy would require several books. Following on from here, this book establishes the general function of contemporary Turkish German comedy in several mass media types, which is impressive because a wider variety of comedic fictions by Turkish Germans exists. The popularity of these cultural products is also exciting, as the following chapters are going to detail. However, there is that history of “Türkenwitze“ or anti-Turkish German humour which denigrates the Turkish minority for the amusement of the majority culture. To know more about it and to understand it better means an improved understanding of the pro-social agenda of contemporary Turkish German comedy entertainment and from where its makers draw inspiration.
Ethnic humour has several important qualities. One is that the story of its social functions opens a unique window into societal dynamics such as those laid out in the first part of this chapter. In Germany, the way ethnic humour worked was to separate, to hierarchise and to deride ethnic minorities, seemingly validating claims about their inferior identities. It helped German elites, the government and the wider public to turn a blind eye when ethnic minorities were mistreated, hurt or even killed. This divisive humour is a precursor to the narrative of how communities like the Turkish Germans fought back. They were the target of anti-social ethnic humour before re-appropriating its hostility, aggression and degradation. Islamophobic humour was widely consumed in German mainstream media, which illustrates the pervasiveness of certain negative stereotypes about Turkish German people. That Turkish Germans could take on centuries of demeaning jokes and racist slurs with their pro-social ethnic comedy is astonishing. Even more impressive, however, is the fact that they could use this
germanness, othering and ethnic comedy 49
comedy to facilitate a widening of ethnic identity discourse in Germany via the arena of popular culture entertainment.
Islamophobic humour in Germany, which one can just as well call racist propaganda, is well documented. Studies of it connect the fear of the transnational to the fear of the non-German Other, first to divisive ethnic humour and later to racialising ethnic comedy sketches and ethnic drag skits (Sieg, 2009). Those racist entertainment performances are very similar to American Vaudeville and blackfaced or brownfaced stock characters in unscripted plays in the tradition of Italian commedia dell’arte. Long-running jokes about Turks, appearing as visual propaganda artefacts in daily German newspapers and on television and in the cinema, go back to popular print-press comics. They were co-opted as an essential means of disseminating race-based humour by the German yellow press after the first wave of Turkish German labour migration in the 1960s and after reunification in the early 1990s. Again, none of this was entirely new and applied before to anti-Jewish German and antisemitic humour in Germany. A dearth of research studies on anti-Jewish stereotyping in racist WWII comic strips, funny stage plays and nightclub skits confirms as much for readers interested in historical ethnic comedy racism in Germany (Chapman, 2000; Dundes and Hausschild, 1988).
What was new in the case of Turkish Germans, or at least contradictory on the face of it, was that the two post-war Germanies had carefully constructed their narratives of national de-Nazification around multi-ethnic diversity. West Germany had done so by aligning itself with a pro-capitalist market economy under the leadership of the USA’s so-called melting-pot multiculture. The wider public in West Germany embraced symbols of that melting-pot US culture, for example by buying American brand products and consuming American entertainment culture on German television and in German cinemas. All the while, the GDR regime was eager to construct a national story of East Germany as a utopian socialist home for and by all state workers regardless of skin colour or religious beliefs (Habermas, 1988: 3; Müller, 2000: 124). The return of seemingly racist imagery and comedy in East German and West German entertainment emphasises how short-lived the ideals of racial tolerance were within German culture. Several of the political cartoons about Turks living in Germany for the last 50 years point this out. Some of them were collected for a travelling exhibition (“50 Years, 20 Cartoons: Turkish People from the Perspective of German Cartoonists”) and first put on display in 2012 at Ankara’s German
turkish german muslims and comedy entertainment50
Cultural Centre. Viewing them gives one an idea of how German cartoonists critiqued the pseudo-liberal perception of Turkish migrants.
Figure 2: “Döner-Centre”, Heiko Sakurei, political newspaper cartoon, first published
in Berliner Zeitung, 2004, part of “50 Years, 50 Cartoons: Turkish People from the
Perspective of German Cartoonists” (Erdogan, 2009). The text in the speech bubble
reads: “Ok, so then please recite for me the first 20 Articles of the German Basic Law
charter!”. Credit: Berliner Zeitung/Heiko Sakurai, reprint with permission by artist.
Anti-social and Pro-social Ethnic Comedy: “Sword” and “Shield”
Racialising comedy and ethnicity-based humour have long been a part of German culture. Their potential for varied interpretation has led to a wide range of interpretations of their effects on society, which have only recently become an area of investigation in psycho-social research into humour (Saucier and O’Dea and Strain, 2016). There are several competing opinions on the finer nuances of the subject. Existing literature on ethno-racist humour, and particularly its conceptualisation according to the “sword and shield metaphor” (Rappoport, 2005), though, suggests two primary outcomes associated with racial and ethnic humour. When ethnic comedy, that is ethnicity-based humour used in
germanness, othering and ethnic comedy 51
mainstream entertainment, is anti-social in intention it is used as a sword or means of attack and interpreted as such. This means that it may reinforce existing social hierarchies and divisions between certain groups along lines of ethnicity tropes and ethnic identity bias. Stereotypes about the target or targets of the humour may be reproduced, potentially giving the impression that it is socially acceptable to articulate racist prejudice and ethnic bias openly for amusement. When ethnic comedy is pro-social in intent, used as a shield and understood as such, it may serve to challenge and protect against prejudice and connect members of communities within and across group boundaries. It moves people closer together instead of separating them further.
Davies makes the point that almost all humorous approaches to ethnicity and national identities, fictional as well as in real life, inevitably involve communication about a notion of social mobility (Davies, 2002: 148-149). For example, with ethnic jokes in nation states there is always an allusion to a sense of change within and between ethnic communities and their assumed places in society: societal, occupational, cultural, educational and political. It is the very notion of the possibility of social change, upward and downward movement, Davies argues, which provides the springboard for ridicule between and even within ethnic communities. Therefore, he writes, “ethnic humor in general [and regardless of its social intent] is a relevant and important part of our modern popular culture” (Davies, 2002: 136). But it would be inaccurate to overemphasise here just two categories of ethnic humour to restrict or mobilise cultural identities in the social imaginary of a country’s mainstream culture. There is a possibility that some pro- socially motivated ethnic comedy may be perceived as anti-social, presenting the possibility of unintentional reproduction of the status quo rather than subverting it. Rappoport also warns that supposedly clear-cut taxonomies and overly narrow definitions in humour theory often do not equip scholars of ethnic humour to deal with the many finer nuances of it and that which is still unclear about it: “[c] onventional analyses often just brush over the subject by referring to the humour theories summarized earlier and emphasizing the superiority theme—that by ridiculing others, people enhance themselves. Freud’s psychoanalytic concepts are also frequently cited, since so much of racial, ethnic, and gender humor involves sex and aggression. This is not wrong, and much of it is useful, but the aim [should be] to show there is a great deal more to be said about humor based on stereotypes” (Rappoport, 2005: 31).
Researchers in ethnic humour studies argued until the late 1980s that ethnic humour functioned primarily to describe only the relationship between ethnic
turkish german muslims and comedy entertainment52
communities. Yet theorists like Giselinde Kuipers, who examine stereotype humour in the specific cultural contexts of Canada and America, argue that humour based on the identity of ethnic communities has more important functions within rather than between groups of people, as I suggest in chapter four (Kuipers, 2006: 140-142). Conspicuous examples of this can be found in most, if not all, societies around the world. Kuipers makes the point that in some societies older migrant communities or older inhabitants refuse to acknowledge and accept the values of the current mainstream culture, as indicated in chapter three (Kuipers, 2006: 144). Poking fun at themselves as perceived minorities outside the dominant community allows, for example, so-called rednecks in the United States or French Canadians in Canada confidently to mark their lifestyles as different from those of the majority, yet not as somehow lesser. The minorities can take pride through ethnic humour in forming a particularistic narrative of their cultural identity at the periphery of a multicultural society. As a reverse form of cultural assimilation, outsiders need to accept the qualities of this identity as superior to theirs in order to gain access to it (Kuipers, 2006: 145).
Is Turkish German comedy entertainment in the new century driven by similar anti-social or pro-social mechanisms? Does it present an opportunity to embed prejudice and ethnicity in self-aware discussions of contemporary Germanness? In this book I claim that it does and that Turkish German comedy productions also foreground the issue of tokenism in the representation of ethnic diversity in Germany. Neither the alt righter nor the liberal lefty, nor the comfortably neutral middle-of-the-roader, is safe from the critique of Turkish German comedy artists. They all question the identity politics of Germanness as a discrete culture complex, whose opening towards a decidedly transnational, hybrid aesthetic is at the centre of my analysis. Moreover, one can see the different mass media types of Turkish German comedy as a collective platform. It is widely accessible across multiple creative channels to interrogate normative assumptions of a white, Christian Germany. Turkish German comedy filmmakers, screenwriters, performers and authors work off it by sharing “experiences of diasporic subjects and by telling stories about the dynamics of cross-cultural encounters and postmodern multi-culturalism” (Berghahn, 2013: 6). The attentive reader will thus notice in subsequent chapters that I privilege in this book the social functions of Turkish German comedy fictions instead of reading them as representations of factual reality. It is not just about “getting” the humour which may or may not lead to a positive or negative affective response. Instead, I talk about how Turkish German comedy participates in the
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dissemination of ethnic communities’ internal workings and how they deal with other ethnic groups.
In related aspects of modern usage, Kuipers has shown that ethnic humour functions primarily to clue in audiences on the position of ethnic identities in relation to each other. Conspicuous examples of this function appear in ethnic humour based on prevalent tropes of national, religious or regional and gendered identities. Kuipers puts forward the argument that one can read jokes about the lazy rednecks in America mentioned before as a distillation of the essence of all social interactions, namely hierarchy and ordering (Kuipers, 2006: 140-142). Proceeding on this basis, Kuipers considers this joke by US redneck comedian Jeff Foxworthy: “You might be a redneck if the stock market crashes and it won’t affect you one bit.” This example cites several possible ingredients of ethnic humour and its function to understand the social order through stereotyping of group identities (Kuipers: 144). In such examples identities and social mobility are inherently linked. Jackson develops the point further by arguing that humour theorists have made productive use of humour to touch on taboos or sensitive topics in society. The link between identity and mobility expresses the relationship between who we are and where we can go in life. Because of this, jokes about ethnic stereotypes show us where certain communities sit in the greater context of a society’s social imaginary ( Jackson, 2012: 2). Similarly, a comedic reading of popular fictions about minority characters, for instance Turkish Germans in Germany, can deliver new perspectives on the complex relationship between ethnicity, marginalisation and the novel definition of identities in German society.
Another implication of this is to place Turkish German comedy in wider research environs. Formulating a new approach to Turkish German comedy means being part of the formulation of a burgeoning field of transnational popular culture studies in the new century. Much of the scholarship in this academic project relies on established theoretical terrain. There is immigrant transnationalism (Schiller et al., 1995), which looks at the act of transfer between source and destination points and the inherent social actions and reactions migration networks generate. In the age of globalisation, diasporic and other types of trans-ethnic culture have formed new power structures (Gupta and Ferguson, 1997), cross-pollinated by anthropological sensibilities of space and the politics of representing difference (Banerjee, 2005). Between transnationally produced and consumed comedy fictions lies the centrality of mainstream entertainment, whose study has been approached from the perspectives of
turkish german muslims and comedy entertainment54
audience taste, commercialisation and intercultural values (Göktürk, 2004; Higbee and Song Hwee, 2010). By now, too, the recurrent crisis of German nationhood in transnational Europe has attained canonical status (Risse, 2015; Brubaker, 1996).
Studying humour, as one has seen by now, is a challenge in any domain. Interpreting the way humour emerges, which contexts it references, how its many structures and uses play out in specific settings, can be a daunting task. Comedy research is “complex and demanding—even unlimited” (Roach Anleu and Milner Davis, 2018: 6). This reality of doing humour studies may help to explain why scholars working on Turkish German culture have largely avoided a confrontation of humour styles or styles of humour with frameworks of applied social pragmatics. Even those who study the funny in Turkish German works of film, television, literature and performance have found that the things which are in and of themselves comedic or humorous are difficult to judge as inherently funny. The flavour or tone of a comedy film or a video piece can vary from being utterly sarcastic to light-heartedly warm and playful. Knock-about slapstick actions in a romantic comedy may be drawing on complex and multi-faceted, multi-dimensional notions of humour. Physical gags in online sketch reels can contain subjective, situational, multi-ethnic and plural markers for ethnic humour about multiple ethnic communities. Some think it is hilarious, some find it lowbrow garbage. It could be the reason why even Göktürk, who was the first to take on Turkish German comedy, has come to think it impractical to discuss comedy fictions just on the subjective grounds of audience perception. She has concluded as much in her numerous discussions of humorous representations of hybrid cultures in Turkish German cinema. Göktürk suggests that it is more useful to determine which aspects of identity a comedy fiction presents; and which it presents in more ways than one to propose that there are different ways of being authentically German or Turkish (Göktürk, 2000: 4-5).
But what remains absent, first and foremost still, is a systemic investigation method to merge scholarly discourse on popular entertainment culture with transnational migrant comedy. The social pragmatics of humour play a key role in responding to this gap. To question when and how humour works, where it is applied and to what end produces complex and multi-faceted examinations of subjects, situations, shared realities of living and social meanings. There are multi-dimensional strategies to the authorship of funny fictions and scripted performances. They reveal how certain cultures differ while retaining a sense of commonality, which is essential in understanding why specific jokes and puns
germanness, othering and ethnic comedy 55
are funny without being anti-social. In discussing Turkish German identities and Turkish German comedy, research must include a discussion of linguistic elements, verbal structures, situational elements, physical actions, a dissection of wit, and how scripted comedy in general elicits specific meanings on the textual level. This approach can be categorised as an established form of social contextualisation within the classical structure of pragmatic humour research. I would note, however, that this approach is new to analyses of Turkish German culture and Turkish German comedy. Scholars of humour, though, will recognise that I employ the classical tripartite formation of humour theory. I use it to speculate in the next chapters on how humour creates intended messages in support of Turkish German comedy’s overarching agenda: pro-social, affective meanings which model positive interventions between Turkish German and other German communities in the context of everyday living and the actual reality of living in German society.
Aspects of social control as well as unbridled freedom of expression will underpin all critical thinking about Turkish German comedy as social commentary. The wealth of ethnic comedy entertainment in genres and media types is evidence enough of both a need and an opportunity to understand a hybrid form of Turkishness and Germanness as creative power, a form of new artistic labour. It questions whether the burden of uniting Islam with Western majority societies falls squarely on Muslim minority communities or groups re-Muslimised after decades of living in Germany in the wake of 9/11. I develop this point further in my analysis of inter-communal and intra-communal exchanges of Turkish Germans and other Germans in fictionalised German society through the lens of three types of humour: superiority, incongruity and relief.
Superiority, Incongruity and Relief Humour
Kuipers (2008: 388), Meyer (2000), Olin (2016) and Scheel and Gockel (2017) all agree on three broad “categories of theory or classical approaches to explaining the phenomena of humour and laughter” (Roach Anleu and Milner Davis, 2018: 6). These are the theories of superiority, incongruity and relief. With superiority one finds humour in the lowering of another’s social station through momentary misfortune or intentional actions and speech acts. Examples of this can be found in situational comedy scripts for television sitcoms, the physical
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comedy of slapstick in action-driven goofball or romantic comedy films, and the quick-witted dialogue of chick-lit and dick-lit novels. Incongruity turns on the perceived difference between expected outcomes of specific situations or assumed knowledge about reality and the actual state of things or behavioural patterns of people. This mismatch is perceived by the brain as a positive stimulus of a learning experience. Incongruity generates laughter in sudden identity reversal scenes of screwball comedy and is increasingly popular with punchline pundits to elicit laughter in their stand-up routines. Finally, relief means that humour and laughter allow the sudden release of pent-up emotions or re-routing of nervous energy, thereby producing pleasure from negative sentiments and anti-social predispositions. This type of humour occurs during confrontations and stand- offs between characters, thus offering alternatives to the physical escalation of conflict and resolving contrasting viewpoints without violence. Of course, these theories overlap and intersect. They are not clear-cut paradigms. Frequently, any given instance of scripted comedy fiction and scripted comedy performance “will contain elements of incongruity, superiority and relief as well as other factors” (Roach Anleu and Milner Davis, 2018: 6).
Superiority Superiority, incongruity and relief each have their own histories of usage and theoretical criticism in the areas of philosophy, sociology, linguistics and literary studies. Prominent supporters have repeatedly attempted to use them in different disciplines to explain laughter from the viewpoint of an intentional stimulus and a desired response to it. In the 17th century, philosopher Thomas Hobbes advocated superiority as the dominant model to explain how laugher was an individual’s response to feeling superior to others. He defines laughter in Human Nature (1640) as a “sudden glory arising from some sudden conception of some eminency in ourselves, by comparison with the infirmity of others, or with our own formerly” (Hobbes, 1905: chapter 9, sec. 13). More recently, Arthur Asa Berger sees it as an important theory on “how humor involves some sense of superiority that people feel about those (people, animals, objects) they laugh at” (Berger, 2010: 105).
Different scholars have produced different interpretations of what the humour theories about superiority, incongruity and relief mean. Berger writes with a greater emphasis on everyday social contexts than Hobbes, “A person slips on a banana peel and we laugh because, for a moment, we who have not lost our balance feel superior to him” (Berger, 2010: 105). In contrast to incongruity
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theory and relief theory, laughter in the context of superiority humour is overtly directed at someone or something and looks down at the position of perceived inferiority. Berger explains this point further with a critical look at the general aspect of superiority humour defined by Hobbes. He argues that “[from] a cultural theory perspective we can extend [Thomas] Hobbes’s notion of humor involving a sudden recognition of some kind of eminency in ourselves relative to others and say we may find this eminency not only in our persons but in our cultures” (Berger: 105-106).
Despite their different interpretations, Hobbes and Berger highlight several features of the same tendency of superiority humour, which is to obtain authority over certain aspects of a person’s identity or a culture through ridicule. The general idea is that the emphasis of difference can position one’s social status higher than that of another person. But while Hobbes remains vague about the ambivalent social mechanism of superiority humour, Berger describes it as a way of actively fighting for societal primacy. He argues that the act of reproducing perceived differences between two socio-culturally determined positions and highlighting them with humour is nothing short of an act of social aggression (Berger: 106). Berger claims further that it is undeniably also a form of aggression if the entity in the allegedly inferior social position relishes in turn the fall of a person or object from its supposedly higher place in society.
Exploring the aspect of social ordering through humour in greater detail, Sullivan makes the point that superiority humour can be perceived as a negative as well as a positive form of cultural identity politics. Superiority humour can be interpreted as a negative strategy if a majority mocks a minority, or as a struggle for social equality if the minority fights back with it. In the second case, it encourages people to fight for a better place than the one awarded to them by those in power (Sullivan, 2004: 87-88). Sullivan writes, “[A] belief in superiority produces a type of equality, albeit a particularly noxious type [because] the pervasive belief in superiority encourages violence” (Sullivan: 88).
It is the message about identities in relation to social change and society which challenges theorists not to dismiss superiority as a retaliatory practice or the one- sided form of humour defined by Davies as ethnic ridicule. But Berger argues that the ridicule in superiority humour is part of a recognition process of social contexts and subject positions, which he reads as a test of alleged differences (Berger: 107). I have described above that cultural differences are the main themes of Turkish German comedy, which suggests that superiority humour can shed new light on them as a theoretical approach. The stories I analyse start out
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by reproducing social differences and reifying them as potential dividers between communities. Yet, as their plots unfold, the narratives examine and comment on those dividers, they interrogate and sometimes destabilise them, and in some cases even dis-locate and re-place them to stress their artifice as makers of ethno- cultural superiority.
Incongruity Put forward by Francis Hutcheson’s writings about aesthetic diversity in the mid-18th century, incongruity is now the most accepted transcultural model of explaining laughter as an expression of positive surprise in the face of an unexpected situation or the experience of mismatch ( Jackson, 2012: 9). Similarly, Arthur Berger defines incongruity humour as “based on some kind of a difference between what people expect and what they get. We can also look at incongruity in more specific terms as far as culture theory is concerned and say it suggests some kind of difference between what is and what is not normative” (Berger, 2012: 105). In other words, incongruity occurs where there is a mismatch, by evoking it either willingly through some semiotic stimulus or unwillingly through some other means. The stimulus activates knowledge about two diverging, incompatible frames of reference and thereby evokes an element of opposition. Laughter indicates here the realisation of an incompatibility between a concept and certain assumptions involved in a situation or thought process and the real objects thought to be related in some way to the concept or assumption (Berger: 108).
Despite its common acceptance, theorists lament the inherent lack of precision in this definition. Berger for instance finds incongruity problematic when it comes to determining in greater detail the cultural positions which are involved in the act of laughing about a perceived clash. He says: “Although incongruity theories tell us that incongruous differences in humorous texts elicit laughter, […] usually in the form of polar opposition, forcing them into unspecified models of binary opposition is too vague as a research approach for informed inquiry” (Berger: 106). Vandaele makes a similar point. He argues that the analysis of referential conflict alone does not yield contextual results about the critical study of clashing meanings. One must rather ask how, for instance, the shock value of clashes between stereotypical knowledge and completely unexpected meanings plays out in a specific narrative (Vandaele, 2002: 223-224).
Berger and Vandaele draw explicit parallels between incongruity humour and fictions about migrant identities. Laughter emerges as the result of someone
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learning something new from an otherwise common situation or context in the theory of incongruity humour. The reconfiguration of the expected can happen either by people behaving suddenly differently from how they would normally or by meanings which are contradictory to their usual communicative purpose. Moreover, John Morreal points out that “expectation is a key word here” (Morreal, 2009: 60), in that what any given person may find incongruous depends largely on his or her individual knowledge about and experiences in a cultural context (Morreal: 60-61).
Ultimately, in humorous fictions about migrants and natives where the context is one in which immigration has resulted in a variety of meanings and cultural identities, the concept of incongruity becomes a question of how competently members of different groups deal with the unexpected. The comedic focus on a specific society can also indicate whether the social setting has imposed boundaries on the members of different ethnic backgrounds so that they do not share enough cultural meanings or knowledge to avoid unexpected misunderstandings. The limited knowledge and experience of their own group might not allow community members to avoid incongruent situations within the culture, much less so between cultures. If this aspect of incompetence is the humorous focus of the narrative in a film, a television show or a novel or a digital skit, the fact that both minority as well as majority members are faced with the same feeling of unexpectedness may become central to understanding difference as a shared quality in a society.
Relief The most recent explanation of what provokes laughter is relief theory. The theory emerged in the mid-19th century and was later informed by Freud’s psychoanalytical understanding of the human psyche and most recently updated by scholars in the field of neuro-medical science. The basic premise of relief is that “humor is tied to psychic economies and to aggression, often of a sexual nature” (Berger, 2012: 106-107). Berger writes that it is also “described as a rerouting or suspense theory of suppressed and suddenly released energies of the psyche” (Berger: 107-108) in the larger body of literature on humour research.
Berger’s description indicates that relief theory shares several features with incongruity as well as superiority humour. Focusing on social functions of humour, Morreal notes that the homeostatic mechanism of relief humour serves much like a safety valve to release built-up pressure. It ensures that humour as a positive feeling and laughter as a non-violent reaction replace an otherwise
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anti-social and volatile outcome when a person is put under significant pressure (Morreal, 2009: 115). Morreal adds that the humorous outcome is “not only more enjoyable to human beings than the dissonance caused by the aggressive alternative or actual physical violence; it also presents the socio-cultural benefit of laughter” (Morreal: 115) to share in the fun as a group.
The concept of humorous relief is vital to this study because it suggests that humour is conducive to inter-communal as well as intra-communal relations by connecting people socially through their laugher. Although relief appears less frequently than superiority and incongruity in contemporary humour studies, it can be considered very useful, in that an individual constantly experiences identity pressures within a group. The role of affinities and affiliations which ethnic communities develop to foster a notion of cohesion are crucial in multicultural societies. This is particularly relevant for people who are required to indicate their social belonging through language or a certain behaviour despite a dislike of either or both.
The notion of a sudden discharge of accumulated tensions of the psyche also plays a central role as far as repressed groups in society develop an acute sense of belonging, which humour helps them to advocate. According to Russian literary critic Mikhail Bakhtin, who published most of his work under a repressive authoritarian regime, the social ritual of carnival demonstrates this vividly. Bakhtin writes in his study of the medieval European novel, “during no other time more than at carnival, and even though only for a short while, the carnevalesque parody and self-parody of one’s outwardly-projected and/or internalized identity display to the world that folk laughter is knowing resistance to oppression from above” (Bakhtin, 1965: 2). He explains that the oppression is exercised by elites, who impose their dominant views and values on the oppressed under their rule (Bakhtin: 3-5).
What can be inferred from Bakhtin’s connection between fictional carnival and a form of relief in actual reality is that cultural insiders need to adhere to the normative ways of their groups to benefit from the community’s social status or to signal loyalty. Any departure from the norms means a rejection of the authority over a cultural identity and is usually penalised. Yet, if a rejection of authority is not feared but instead intended because it elicits laughter temporally in the fictional realm as the expression of a constantly changed actual reality, then relief is the sign not of social suppression but of social progress. The different instances of Turkish German comedy I analyse in this book demonstrate this.
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11
Debating Sharīʿa in Egypt’s National Courts1
Brian Wright Independent Scholar
Abstract This article explores debates about the role of Islamic law (sharīʿa) in the early development of the native courts in Egypt, established in 1883. Current literature focuses on the impact of European influence, arguing that the na- tive courts and the codes they implemented broke away from a past dominat- ed by Islamic law, sidelined pre-modern juristic (fiqh) understandings, and reflected an importation of European norms in service of a growing modern state. Using periodicals published within the first ten years following the es- tablishment of the native courts, this article argues that, for both supporters and detractors, the question was not whether the sharīʿa was being imple- mented but how it should be understood and utilized. Ideas informed by ex- ternal influences, such as the rule of law and the creation of an independent judiciary, were significant and helped to shape the development and oper- ation of the native courts. However, these ideas were viewed by observers through a broader conceptualization of the sharīʿa that included the work of the political authority to achieve a central goal: to nationalize the sharīʿa and establish justice in a rapidly changing social and legal environment.
Keywords: Egyptian law; judiciary; native courts; nineteenth century; sharīʿa
1 Funding for the research that led to this article was provided by a post-doctoral fellowship from the United States Department of State’s Bureau of Educational and Cultural Affairs (ECA) at the American Research Center in Egypt (ARCE) in July–December 2022. I want to thank ARCE for their continued support.
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Journal of Islamic Law | Special Issue 2023
introduCtion
In December of 1883, Khedive Tawfīq of Egypt proclaimed the formation of a new court system in Cairo, Alexandria,
and select cities in the Nile Delta. Dubbed the native courts (al- maḥākim al-ahliyya), these venues applied to all subjects of the local government. They adjudicated most matters related to civ- il, criminal, and trade law.2 Accompanying the new courts was a collection of codes, including a Penal Code (1883), a Code of Criminal Procedure (1883), Civil Code (1883), and Commercial Code (1883), created by a committee led by the then Minister of Justice, Ḥusayn Fahkrī Bāshā (1843–1910).
For its supporters, the introduction of the native courts marked the beginning of a new era. At a meeting with the Khe- dive celebrating the appointment of the native courts’ first cadre of judges, Fahkrī Bāshā stated,
From the day you [Tawfīq] sat upon the throne of your forefathers, you have given great care to reform Egyp- tian courts. Your government has organized laws that ap- ply, as much as possible, to the conditions and traditions of the country . . . I am happy to present to you [here] the men you have entrusted to fulfill this truth in your courts.3
Khedive Tawfīq then addressed the gathering, stating,
It is known that the foundation of civilization and the increased wealth of its citizens and residents is to follow the path of justice and truth according to the rule of legal texts. Through this, justice reaches its peak; rights are given to those who deserve them, aggressors are halted, and other potential aggressors are deterred.4
2 Unnumbered order of June 14, 1883 (Lāʾiḥa tartīb al-maḥākim al-ah- liyya [Order to Establish Native Courts]), art. 15 (Egypt).
3 Quoted in ʿabd al-raḤMĀn al-rĀFiʿī, Miṣr wa’l-sudĀn Fī awĀʾil ʿahd al-iḤtilĀl 66 (1983).
4 Id.
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Debating Sharīʿa in Egypt’s National Courts
The Egyptian government considered the native courts the culmination of a reform process that would end the corrup- tion and disorganization that had plagued the country’s legal system throughout the nineteenth century. By providing the collection of codes applicable to all Egyptians regardless of status, the courts guaranteed justice and put the country firmly on the path of progress.
However, others were concerned that the native courts were disconnected from Egypt’s legal past, particularly Islam- ic Law (sharīʿa). In April of 1883, while the legal committee was finalizing the codes, press reports from Istanbul reached the offices of the popular daily al-Ahrām, worried that the gov- ernment’s recent removal of the Mālikī muftī position and the preparation of the codes were a sign of “disrupting Islam.”5 Al-Ahrām dismissed these concerns and responded, “Egypt reg- ularly follows the rulings of the Caliphate and all areas ruled by the Ottoman Sultan, i.e., the Ḥanafī School . . . The most im- portant thing to the Khedive is the protection of the principles of the Holy Sharīʿa. Nothing will be accepted which touches it, no matter what the source.”6
Despite al-Ahrām’s reassurances, the codes for the native courts did rely heavily on French influence in their organization and content, a point that has led several later historians to sug- gest that Islamic law had been left in the past. In criminal law, Rudolph Peters states, “In 1883/1889, Islamic criminal law was abolished in Egypt.”7 Peters’ view is part of a broader argument in Islamic legal historiography that the influence of the sharīʿa ended with the creation of modern legal systems in the Muslim world. At the core of the standard view is the conceptualization of pre-modern sharīʿa as a transnational “jurists’ law,” described by Wael Hallaq as mediated by a class of traditionally educated jurists (fuqahāʾ, sg. faqīh).8 The political authority and the laws they created were external to the sharīʿa as, according to Aharon Layish, jurists “were not integrated as a professional class in
5 al-ahrĀM, April 24, 1883. 6 Id. 7 rudolPh Peters, criMe and PunishMent in islaMic law 141 (2009). 8 See, for example, wael hallaq, sharīʿa: theory, Practice, trans-
foRmaTionS 443 (2009).
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Journal of Islamic Law | Special Issue 2023
the [political] establishment.” Likewise, the methodology of the sharīʿa “did not leave the political ruler any leeway, except by means of administrative decrees, to control the formulation of the legal norm.”9
Following the work of Layish and Hallaq, Baudouin Dupret argues that the nineteenth century was a breaking point for Egypt and other jurisdictions in the Muslim world. Through a process he calls the “positivization of the law,” the modern state in this period used codes to “completely and systematical- ly organize the world, societies, and men.”10 The introduction of positive law marked an epistemic shift in the sharīʿa where the jurists’ role in forming the law was systematically removed. National codes were implemented whose ideological roots and content were alien to the legal and social fabric of the Muslim world. For Talal Asad, positive law signified the rise of secular- ism, creating a division between secular public law and religious morality limited to the private sphere.11 As a result, the sharīʿa, as it operated in the pre-modern period, succumbed to the ex- panding modern state.12
Other research has modified the jurist-centered approach to the sharīʿa. While accepting that the modern state is critical to understanding the nineteenth century’s legal developments, revisionist scholars argue that the state’s increased role in shap- ing the law has not interrupted the functioning of the sharīʿa. For example, Khaled Fahmy suggests that focusing on jurists leaves out the vital place law created by the political authority (siyāsa) occupied in the pre-modern Islamic system.13 The state assuming a more dominant position by introducing codes in the second half of the nineteenth century indicated change but not a divergence from the past.
9 Aharon Layish, The Transformation of the Shari’a from Jurists’ Law to Statutory Law in the Contemporary Muslim World, 44 Die welT DeS iSlamS 86 (2004).
10 baudouin duPret, Positive law FroM the MusliM world: JurisPru- dence, history, Practices 54 (2021).
11 talal asad, ForMations oF the secular: christianity, islaM, Mo- DeRniTy 205–6 (2003).
12 Wael Hallaq, Can the Shari’a Be Restored?, in iSlamic law anD The challengeS of moDeRniTy 24 (Yvonne Haddad and Barbara Stowasser, eds., 2004).
13 khaled FahMy, in quest oF Justice: islaMic law and Forensic Med- icine in moDeRn egypT 279 (2018).
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Debating Sharīʿa in Egypt’s National Courts
Applying Fahmy’s view, Mina Khalil, in his work on criminal defendants and the Egyptian public prosecutor’s of- fice, has argued that case law does not support the argument that the codes developed for the native courts opposed the sharīʿa.14 In civil law, Samy Ayoub shows how the Mecelle-i Ahkâm-i Adliyye, the Ottoman Civil Code of 1877, represented new so- cial and legal norms of the late Ottoman Empire but was also “a faithful synthesis of late Hanafi jurisprudential norms.”15 Iza Hussin suggests that the codes developed in the Muslim world during the nineteenth century resulted from an interaction be- tween local and colonial elites and continue to represent Islam within the state accurately.16
Building on these emerging approaches, this article ex- plores Egyptian debates regarding the role of the sharīʿa in the native courts. Using periodicals from the first ten years follow- ing the courts’ establishment, the article examines the place of the sharīʿa in Egypt’s modernizing legal system, the purposes of the law in punishing homicide, and whether Christians could adjudicate matters previously subject to courts staffed by clas- sically trained Muslim jurists. The article supports the theory of continuity and argues that the question of the native courts’ connection to the sharīʿa was not one of whether the sharīʿa was being applied in Egypt. Rather, the more pertinent concern for local reformers was how the sharīʿa should be utilized to realize a broader goal: the creation of an independent judiciary that would dispense justice equally amongst all Egyptians. The centrality of the modern state and the use of positive law were critical to achieving this goal. Yet, reformers of the time adopt- ed a comprehensive view of the sharīʿa as a legal system that included the participation of the political authority. The rules created by pre-modern jurists did not limit them. Both the rules
14 Mina Elias Khalil, A Society’s Crucible: Forging law and the criminal defendant in modern Egypt, 1820–1920, 18 (2021) (Ph.D. dissertation, University of Pennsylvania).
15 Samy Ayoub, The Mecelle, Sharia, and the Ottoman State: Fashion- ing and Refashioning Islamic Law in the Nineteenth and Twentieth Centuries, 2 JouR- nal oF the ottoMan and turkish studies association 123 (2015).
16 iza hussin, the Politics oF islaMic law: local elites, colonial au- thority, and the Making oF the MusliM state 19 (2016).
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constructed in fiqh and the codes developed by the political au- thority for the greater good fell within the scope of the sharīʿa. They could be used in the development of modern Egyptian law.
Additionally, for both supporters and detractors of the native courts, ideas informed by European norms such as the rule of law were important influences that shaped the nature of reform. However, reformers understood these ideas through the lens of the sharīʿa and employed them to meet the needs of a rapidly changing nation. By synthesizing foreign ideas with pre-modern interpretations that best fit local circumstances, re- formers infused the sharīʿa into the modern Egyptian context.
The nationalization of the sharīʿa and the codes made by the political authority were not universally accepted. By the middle of the twentieth century, revivalists began to view what they perceived as the importation of European law as “an affront to Egypt’s religious, cultural, national, and transnational Mus- lim identity.”17 As a result, they envisioned a reapplication of the sharīʿa as a body of positive law that would stand superior to “man-made” law.18 Wood’s observations accurately represent the Egyptian legal environment in the 1920s and 30s. However, for writers in the first decade after the introduction of the na- tive courts, these concerns were largely absent; the pre-modern sharīʿa remained intact and formed a critical part of the ideolog- ical foundations of a new national justice system.
Before discussing the content of the codes and their application in native courts, it is necessary to understand what concerns Egyptian reformers perceived in their legal system and what types of influences they used to address them. Were the native courts the result of a native desire to reduce corruption or the direct implementation of foreign norms? To answer this question, the following section briefly describes the Egyptian legal system before the introduction of the native courts.
17 leonard wood, islaMic legal revival: recePtion oF euroPean law and transForMations in islaMic legal thought in egyPt 1875–1952, 4 (2016).
18 Id. at 5.
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Debating Sharīʿa in Egypt’s National Courts
building thE nativE CourtS
Before the issuance of the country's first Penal Codes (1830) by Muḥammad ʿAlī (r. 1805–48),19 the Egyptian legal system con- sisted of four institutions. First were the sharīʿa courts staffed by judges (quḍā, sg. qāḍī) trained in Islamic jurisprudence (fiqh) who adjudicated the affairs of Muslims and non-Muslims who agreed to have their cases heard there. Second, non-Muslim councils (majālis, sg. majlis) handled cases between Christians and Jews. The non-Muslim councils could be headed by a judge trained in the sharīʿa courts or a mediator appointed by the ruler. Third was consular courts held in foreign embassies and ruled in matters where at least one party was a foreign national. Finally, there was the court of the governor (wālī), which addressed appeals from Muslim or non-Muslim courts, handling cases brought directly to them and intervening in issues where there was a prevailing state interest, such as homicide.20 Following the 1854 Ottoman orders establishing state judiciaries outside the existing religious venues, the wālī tribunals evolved into a collection of local courts (niẓāmiyya or siyāsiyya) staffed by government officials.21
The development of the local courts in Egypt closely mir- rored reforms undertaken in the wider Ottoman Empire where, following the Gülhane Rescript of 1839, Sultan Abdülmecid I (r. 1839–61) announced his intention to embark on a series of legal and social changes called the Tanzimat. In law, the Tan- zimat culminated in the middle of the nineteenth century with the creation of a system of state courts called the Nizamiye.22 Although the Nizamiye courts and the laws they applied are of- ten described as a step towards the secularization and western- ization of the law, Avi Rubin suggests that individuals working in the courts did not believe they were working in a legal system
19 laṭīFa MuḤaMMad sĀliM, al-niẓĀM al-qaḍĀʾī al-Miṣrī al-Ḥadīth 26– 28 (2010).
20 JaMes baldwin, islaMic law and eMPire in ottoMan cairo (2017). 21 sĀliM, niẓĀM, supra note 19 at 28–52. 22 See Roderic Davison, Tanẓīmāt, in encycloPedia oF islaM, sec-
onD eDiTion (P. Bearman, Th. Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs, eds., 2012), available at http://dx.doi.org/10.1163/1573–3912_islam_ COM_1174; avi rubin, ottoMan nizaMiye courts: law and Modernity 23 (2011).
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divided between secular and religious influences.23 Instead, the plurality of legal venues in both the Ottoman Empire and Egypt functioned, according to Khaled Fahmy, to uphold and comple- ment the sharīʿa.24
As the nineteenth century progressed, elite circles be- gan to believe that Egypt’s pluralistic system needed consolida- tion. There was a growing perception that, for many everyday Egyptians, the sharīʿa courts and local councils were despotic, inefficient, and easily corrupted.25 Writing in the legal journal al-Aḥkām in 1889, the attorney Iskandar Tūmā described how a typical civil or criminal case was handled in the first half of the nineteenth century:
Disputing parties usually raised their matters in the sharīʿa courts. However, a strong complainant could approach the local director or governor to avoid the lengthy trial process and associated costs. If we were to conduct a sim- ple study of the sharīʿa court records, we would find that they have only a minor impact. [In reality], the director or governor would adjudicate matters administratively, following what they would call “political authority.” The judgment would trickle down to lower-level government officials until it reached the village elders [mashāyikh al- bilād] and their supporters, with every level acting as a judge. These individuals could [exercise such power] due to the country’s state at that time. Even the state appel- late court [majlis al-aḥkām] could only review the activ- ities of directors and governors, and only if an issue was brought before them or the ruler requested a review.26
23 rubin, ottoMan, supra note 22 at 81. 24 FahMy, quest, supra note 13 at 126. 25 The reality of whether the Egyptian legal system before 1883 was in-
efficient in practice has been subject to criticism. See Rudolph Peters, Murder on the Nile: Homicide Trials in 19th Century Egyptian Shari’a Courts, 30 Die welT DeS iS- lamS 98 (1990).
26 Iskandar Tūmā, Majālis al-wajh al-qiblī, aw ṭarīqa al-muḥākamāt al-sālifa fī’l-qaṭr al-miṣrī, al-aḤkĀM, January 1, 1889.
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Debating Sharīʿa in Egypt’s National Courts
From Tūmā’s analysis, the problem with the Egyptian legal sys- tem was apparent: government administrators have too much authority to manipulate the law. While the existence of a plural- istic court system might seem attractive, the lack of organization inherent in such a system left the door open for corruption. As a result, judgments issued by the courts were unpredictable. What oversight existed was ineffective as appellate courts could only be called upon by a litigant with the resources and societal con- nections to request a review.
The lack of organization and resulting corruption in the local courts remained even after they were reformed in 1876, with Tūmā continuing:
The [post-reform] councils were ineffective due to the corruption of their foundations for several reasons, the most important of which are: (1) they were not orga- nized by a legal order like that of the [later] native courts . . . (2) the rules created for the councils did not set a deadline for the issuance of judgments . . . (3) judgments were to be announced to the parties through governors and directors without specifying a timeline . . . (4) the implementation of judgments was left to governors and directors . . . and (5) councils issued inconsistent judg- ments because there were no comprehensive laws. Who- ever wanted a judgment in their favor could agree with the court employees to introduce an administrative order that matched the ruling they wanted or state that an order had been annulled.27
Again, Tūmā stressed the local courts’ lack of organization and unpredictability. If the councils remained without a guiding set of rules and regulations, they were susceptible to the interfer- ence of government officials.
In the eyes of Tūmā and other reformers, the best way to cut out corruption, organize the Egyptian legal system, and guarantee predictable outcomes was to create a uniform set of laws and courts operating at arm’s length from the executive
27 Id.
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authority.28 Although some progress towards uniformity be- gan with the establishment of the mixed courts (al-maḥākim al-mukhtalaṭa) in 1875, only with the native courts did the ideal of a single independent judiciary for Egyptians come to frui- tion. For example, the author of the first draft of the Khedival Order organizing the native courts in 1881, the legal translator and Minister of Justice from 1879 to 1881, Muḥammad Qadrī Bāshā, took great pains to emphasize the separation of judicial and executive powers. Rulings of the courts, although issued in the name of the Khedive, must be justified by referencing spe- cific articles from the codes. Judges could also not be removed from office arbitrarily but could be replaced by someone more qualified within the first three years of their service. Finally, if the government wished to transfer a judge to another jurisdic- tion, it could only do so with their approval, according to a Khe- dival Order requested by the Minister of Justice and approved by the Appellate Court.29
Reforming the courts by providing uniformity was driv- en by an increased interest in ideas such as the rule of law. An Islamic concept of the rule of law, or that no individual is above God’s decrees, has existed since the beginning of the religion’s history. At the level of implementation, Muslim thinkers focused on the virtuous character of the individual who held a position of power rather than the nature of the institution itself.30 For ex- ample, a ruler or judge may be deemed “good” because they regularly pray, issue just rulings, and are morally sound. For re- formists in nineteenth-century Egypt, Islamic conceptions of the rule of law evolved as the result of encounters with European liberalist thinkers such as John Locke (1632–1704) and Mon- tesquieu (1689–1755), as well as the Federalist Papers from the United States (published 1787–88). For these writers, the focus was on the place of institutions. When it came to the courts,
28 byron cannon, poliTicS of law anD The couRTS in nineTeenTh-cen- TuRy egypT 126–28 (1988).
29 rĀFiʿī, Miṣr, supra note 3 at 61–62. 30 Lawrence Rosen, Islamic Conceptions of the Rule of Law, in The
cambRiDge companion To The Rule of law 88 (Jens Meierhenrich and Martin Lough- lin, eds., 2021).
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Debating Sharīʿa in Egypt’s National Courts
creating an independent judiciary was a central concern as it act- ed as “the best barrier against lawless governmental actions.”31
Many essential works on modern evolutions in the rule of law were not published in Arabic until later in the nineteenth century. For example, Montesquieu’s main work on legal the- ory, De l’espirit des lois, was only translated in 1891 by the Lebanese attorney Yūsuf Āṣāf.32 However, many Egyptian offi- cials encountered liberal European ideas when studying abroad. For example, several members of the native courts committee, including its head, Fakhrī Bāshā, completed their undergrad- uate education in France. Fakhrī had also worked in the Paris Public Prosecutor’s office from 1867 to 1874, before returning to Egypt.33
Considering the influence of European thought, the ques- tion arises as to whether the Egyptians working on and in the na- tive courts acknowledged that foreign influence had fundamen- tally altered their legal system. Did observers of the time believe that the norms presented by the sharīʿa, which had formed the basis of Egypt’s legal system for centuries, were secondary to imported legal norms and the will of the modern state?
iS Egyptian law iSlamiC?
Although several Egyptian newspapers and journals discussed the evolution of the Egyptian legal system, the first periodical es- tablished with the exclusive purpose of observing and comment- ing on the native courts was al-Ḥuqūq. Al-Ḥuqūq was founded in Cairo in March 1886 and headed by the Lebanese Christian businessman and attorney Amīn Shmayil (1828–97). Shmayil hailed from the village of Kafr Shīmā, now a southern suburb of Beirut. During his childhood, he received his primary education in English at the American Missionary School in Beirut. He also
31 brian taManaha, on the rule oF law: history, Politics, theory 52 (2004).
32 charles-louis de secondat, baron de Montesquieu, uṣūl al- nawĀMīs wa’l-sharĀʾiʿ (Yūsuf Āṣāf, trans., 1891).
33 yūsuF ĀṣĀF, dalīl Miṣr 223 (1890).
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frequented the traditional fiqh circles of Muḥī al-Dīn al-Bakrī al-Yāfī, a prominent Ḥanafī scholar.34
From an early age, Shmayil was recognized for his problem-solving skills. When he was only twenty-one, he was asked to mediate a dispute between Christian sects in Syria, necessitating years of travel between Rome, Istanbul, and Leb- anon. During this time, he developed strong friendships with- in Ottoman diplomatic circles. In 1854, Shmayil left Lebanon to travel to London and Liverpool, where he would spend the next twenty years building a successful trading company with the support of the Ottoman ambassador in England, ʿAbd Allāh Adablī. In 1875, he decided to liquefy his assets and move to Egypt, hoping his commercial success in England would be re- peated in Alexandria. He was ultimately unsuccessful and de- cided to return his attention to the law, working as an attorney in Cairo and founding al-Ḥuqūq. He remained the editor-in-chief of al-Ḥuqūq for the next twenty years until he retired following the sudden death of his daughter in 1896, staying at home until his own death a few months later.35
For Shmayil, Egypt’s post-1883 legal system resem- bled the Tanzimat system adopted in the Ottoman Empire, of which Egypt was a part. The Tanzimat was a “dual system” of law in which sharīʿa and state (niẓāmiyya) operated simultane- ously.36 Shmayil outlined this division in an article from March 1888, writing:
Our country is composed of several religious groups, and for each is their statement [of law]. For example, the religion of the Kingdom [of Egypt] is Islam. Islam’s civil, commercial, and criminal laws are based on or- ganized rules and principles that are entirely just if fol- lowed correctly. The center of adjudication, according to Islam, is the sharīʿa court. The Kingdom also has state laws [sharāʾiʿ niẓāmiyya], derived from general princi- ples and rules appropriate for the time and introduced
34 JurJī zaydĀn, tarĀJiM MashĀhīr al-sharq Fī’l-qarn al-tĀsiʿ ʿashr 2:245 (1903).
35 Id. at 2:245–48. 36 See rubin, ottoMan, supra note 22.
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Debating Sharīʿa in Egypt’s National Courts
by the great Sultans and governors. The venues for state law are the native courts in some areas and local councils in others.37
Shmayil acknowledged the impact of European influence on the Egyptian legal system, stating in an article from 1887 that the country had taken its cues from “the most appropriate constitu- tions of civilized nations.”38 Later, in 1889, Shmayil would fur- ther state that Egypt had composed its new codes by “translating the laws of the West and their constitutions, choosing from them the best and most agreeable with the Holy Sharīʿa. However, the greatest reliance was on French law, even though others were more appropriate for modern times, such as Italian, Belgian, German law, etc.”39 Shmayil accepted that foreign influence was critical to developing modern Egyptian law. He also held reser- vations that Egypt had primarily relied on the French system. More consideration should have been given to other sources of inspiration to provide more useful practical solutions. However, when selecting the content for the codes, Shmayil emphasized that the law committees only chose rules compatible with the sharīʿa and Egyptian circumstances.
Shmayil also acknowledged differences in how the sharīʿa and state courts functioned and believed that state law complemented the rules of earlier Muslim jurists. An example of the complementary functioning of state and Islamic norms can be seen in a case from Cairo in 1887. In this instance, a woman lost an appeal to annul a land sale conducted by her deceased husband’s estate manager. Her attorneys argued that the contract was incorrectly recorded in the mixed courts and should have been recorded with the sharīʿa court. The native court judges sided with her husband’s agent, stating that although there was a requirement to register the contract with the sharīʿa courts, the fact that it was handled in the mixed courts did not immediately render it invalid.40
37 Al-Qism al-ḥuqūqī: fī taʿaddud al-maḥākim wa ikhtilāf anwāʿ al-qa- ḍāʾ, al-Ḥuqūq, March 17, 1888.
38 Al-Muḥāmūn wa’l-maḥākim al-ahliyya, al-Ḥuqūq, June 18, 1887. 39 Al-Qism al-ḥuqūqī: al-ḥaqq al-jināʾī, al-Ḥuqūq, April 27, 1889. 40 Al-Qism al-qaḍāʾī, al-Ḥuqūq, August 7, 1887.
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When explaining the legal importance of the case, Shmayil stated that according to Islamic law (al-sharʿ), contracts occur when parties make an offer and acceptance with proper legal capacity. However, the existence of administrative orders, such as those requiring that a contract be registered, must be fol- lowed to prevent the contract from being annulled.41 Even if all the fiqh requirements for the contract’s validity had been met, an agreement would be invalid and could not be enforced as it did not comply with state law. Shmayil’s view here echoes Khaled Fahmy’s observations about the “coupling” of jurist-made law with siyāsa.42 Through his analysis of the case, Shmayil showed he was not concerned about the implications of applying posi- tive law from the state in concert with the fiqh on the functioning of the sharīʿa.
Shmayil’s writings also exemplified the evolution of the judiciary’s role. When writing about judges in the native courts, he provided that they should follow principles entirely extracted from classical Islamic works of fiqh and judicial etiquette (adab al-qāḍī). Shmayil reflected the importance of individual judges holding to a solid moral character by citing these principles.43 However, he accepted that the judiciary’s role had changed to being “agents of political authority and servants of justice,” who held an additional responsibility of assisting in the efficacy of broader systemic reform by “revising corrupt laws and [correct- ing] injustices in their application.”44 Interestingly, Shmayil’s insistence that judges actively participate in the reform process contradicts the positivist view of the law. Instead of merely ap- plying state codes, a common element of the French system, Shmayil acknowledged that Egyptian judges played a vital role in their rulings. When a case is brought before the native courts, judges should seek the outcome that most closely serves the needs of justice.
Regarding the law’s content, Shmayil emphasized the connection between the codes and pre-modern fiqh rulings. For
41 Al-Qism al-ḥuqūqī: fī al-bayʿ, al-Ḥuqūq, August 7, 1887. 42 FahMy, quest, supra note 13 at 124. 43 Al-Qism al-ḥuqūqī: fī al-sulṭa al-qaḍāʾiyya wa ādāb al-qāḍī, al-
Ḥuqūq, March 16, 1889. 44 Id.
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Debating Sharīʿa in Egypt’s National Courts
example, al-Ḥuqūq regularly received questions from readers on unclear points of law. In the first set of questions received in May of 1886, a reader asked what the consequences were if an individual were to discover that a product they purchased was defective.45 Shmayil’s response referenced the right to return a product found in the Egyptian Penal Code and the relevant ar- ticles from the French Civil Code.46 After these quick citations, he wrote, “The sharīʿa agrees with the civil code in this area.” As proof, he directed his readers to the section on sales from the seventeenth-century Ḥanafī work Majmaʿ al-Anhur, written by ʿAbd al-Raḥmān b. Muḥammad al-Kalībūlī (d. 1078/1667).47
Shmayil’s view that the fiqh and modern codes were compatible can also be seen in his commentaries on case law. In one instance from 1860, a man named Ḥusayn Dassūqī lent twenty-three thousand silver piastres (qirsh) to several members of the al-Malījī family and registered the transaction with the sharīʿa court. The family never paid him back, and on December 20, 1884, Ḥusayn filed a lawsuit in the native courts demanding that the debt be repaid. The lower court rejected the claim in May 1885, stating that too much time had passed since the initial agreement. Ḥusayn then appealed the case, and the Cairo Appel- late Court issued its final judgment in February 1886. The court agreed with the defendants, stating that a claim for a debt that was now twenty-five years old was too late to be heard.
When justifying their ruling, the court stated that before the introduction of the Civil Code in 1883, there was no code or royal order governing commercial promises. The law in place was “the texts and rules of the Holy Sharīʿa” (nuṣūṣ wa aḥkām al-sharīʿa al-gharrāʾ). According to those rules and practice confirmed by the Khedives and the mixed courts, no civil claims (outside of matters of inheritance and endowments) that were more than fifteen years old should be heard unless the claim- ant could prove that there was a valid legal reason for the de- lay. Shmayil praised the ruling and stated that Article 208 of the 1883 Egyptian Civil Code, which set the statute of limitation for
45 al-Ḥuqūq, May 1, 1886. 46 Al-Qism al-adabī, al-Ḥuqūq, June 5, 1886. 47 Id.
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civil cases at fifteen years, was “nothing more than confirming that which had come before [i.e., the sharīʿa].”48
From his analysis of the sources, content, and operation of the native courts, Shmayil saw that introducing new norms into the Egyptian legal system posed few epistemological chal- lenges and believed that the sharīʿa continued to form the basis for the new system. Although heavily reliant upon the form of the French system, the courts and their codes were either direct- ly compatible with the pre-1883 legal environment or represent- ed a necessary, even inevitable, development that would allow Egypt to modernize.
Shmayil and al-Ḥuqūq’s view of the law were not with- out their detractors, and there were significant questions about how the sharīʿa should operate in the native courts. The most important of these early debates surrounded the issue of homi- cide. As will be seen in the following section, controversial con- ditions in the Egyptian Penal Code were debated regarding their impact on realizing justice. Both sides used arguments grounded in the sharīʿa to justify their positions.
dEfining thE purpoSE of Qiṣāṣ
According to the Egyptian Penal Code of 1883, courts could only issue an order for execution in homicide cases if two sets of conditions were met: (1) that the defendant developed a specific intent to murder and waited for the opportune moment to com- mit the crime (sabq iṣrār wa taraṣṣud)49 and (2) that there were two eyewitnesses to the act or the accused confessed to commit- ting the murder.50 If these conditions were not fulfilled, the pun- ishment would be a prison sentence with hard labor (al-ashghāl al-shāqqa) for fifteen years, which could be altered at the court’s discretion.51 The first condition was an importation from the French Penal Code of 1810, while the second was adapted from pre-modern fiqh rules of evidence.52
48 al-Ḥuqūq, November 19, 1887. 49 Penal Code 1883, art. 208 (Egypt). 50 Id., art. 32. 51 Id., art. 213. 52 hallaq, sharīʿa, supra note 8 at 348.
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Debating Sharīʿa in Egypt’s National Courts
From the moment the Egyptian Penal Code of 1883 was implemented,, the condition of eyewitnesses or confession was the subject of debate. For some, this requirement ensured that execution was only carried out in rare circumstances when full culpability was guaranteed. Muḥammad Yāsīn, one of the earliest commentators on the Penal Code, wrote that eyewit- nesses or confessions were necessary because “execution is a great matter and cannot be ordered simply with the presence of logical or circumstantial evidence.”53 For others, requiring eye- witnesses or a confession was an unnecessary barrier to punish- ment. Amīn Afrām al-Bustānī, a Lebanese lawyer who penned another commentary on the Penal Code, remarked, “this strange restriction in the law resulted in few judgments for execution against the violent murderers who deserve it, allowing evil and threats to security to spread.”54 Al-Bustānī, along with many elites in Egypt in the late nineteenth century, believed that an increase in violent crime plagued Egypt. Murderers who would typically be executed if they were proven to have committed their crime intentionally could utilize the conditions in the code to escape the harshest penalties of the law. The requirement of eyewitnesses or a confession was a loophole in the system that needed to be corrected.
In 1887, the Interior Ministry (Niẓāra al-Dākhiliyya) took the first concrete step to address concerns that the Penal Code placed too many restrictions on the courts and sent a for- mal report to the Justice Ministry suggesting that these condi- tions be removed. In their view, any individual proven to have committed a crime intentionally (al-qatl ʿamdan) should be ex- ecuted. The daily al-Qāhira al-ḥurra, headed by Muḥammad ʿĀrif, welcomed the report as it would “remove the germ of these incidents [homicide and grave bodily injury], which do nothing except upset the peace and shake the foundations of se- curity in the country.”55 By allowing the courts to sentence mur- derers to death more easily, ʿĀrif believed that they could more effectively perform their role in deterring potential offenders.
53 MuḤaMMad yĀsīn, sharḤ qĀnūn al-ʿuqūbĀt 29 (1886). 54 aMīn aFrĀM al-bustĀnī, MukhtĀrĀt aMīn al-bustĀnī al-MuḤĀMī
143 (1919). 55 ʿIqāb al-mujrimīn, al-qĀhira al-Ḥurra, February 27, 1888.
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A reduction in murders would reflect positively on the stability of Egyptian society.
Writing in al-Ḥuqūq, Amīn Shmayil rebutted the min- istry’s recommendation and al-Qāhira al-ḥurra’s praise. He framed his argument historically, opening with the phrase, “Laws should adapt to the time and place [they are applied to].” Shmay- il argued that the rules of retaliation (qiṣāṣ) were necessary in the past to prevent individuals from taking the law into their own hands and perpetuating blood feuds. Today, such methods are no longer required, and advanced societies worldwide have seen the importance of valuing individual life. The legal principle of “choosing the lesser evil” (yukhtār ahwan al-sharrayn), men- tioned by scholars of fiqh and outlined in the opening section of the Ottoman Civil Code of 1877, the Mecelle, dictated that prison with hard labor was a more logical and appropriate course of action than execution. After all, murderers were still faced with eternal damnation should they fail to repent.56 “Which is more acceptable to reason and more [effective] in preventing evil,” Shmayil questioned, “executing a murderer and taking his valuable life, or keeping him alive and tortured through hard labor, the end of which is also death? We, of course, choose hard labor.” 57 Like ʿĀrif, Shmayil agreed that serious steps needed to be taken to ensure that courts dealt harshly with offenders. However, he felt that the status quo of the Penal Code fulfilled this need. Egypt had moved beyond its more violent and uncivi- lized past, and new circumstances meant that older norms had to change. Removing the conditions in the Penal Code, specifically the requirement of eyewitnesses or a confession, would reverse Egypt’s progress.
For Shmayil, the purpose of punishment is to reform the individual (iṣlāḥ). By subjecting perpetrators to hard labor, so- ciety can access a greater benefit and avoid the harm of losing a member. A murderer could potentially “compensate society through his [continued] presence,” turning a “wild branch” into one that “produces fruit,” he writes. Although this is only a “mi- nor benefit” (manfaʿ a ṭafīfa), it is better than “no benefit at all”
56 ʿIqāb al-mujrimīn, al-Ḥuqūq, March 17, 1888. 57 Id.
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Debating Sharīʿa in Egypt’s National Courts
(al-lāmanfaʿiyya kuliyyan).58 This element of Shmayil’s argu- ment shows his focus on the societal impact of homicide over its effect on the individual. Even if a person commits the most serious crimes, their lives should not be thrown away unless it is guaranteed that there is no possibility for them to be reformed. Avoiding punishment except in the most extreme circumstances was a prominent principle within fiqh discussions on criminal law. For pre-modern jurists, avoiding punishment was neces- sary because of an assumed failure of evidence to determine an individual’s criminal intent.59 Shmayil took the principle of avoiding punishment further by adapting it to modern Egyptian circumstances. Instead of a way to prevent executing potentially innocent defendants, avoiding punishment now provided a ben- efit to a society that prioritized reforming rather than punishing wayward members.
Finally, Shmayil pushed back against textualism, stat- ing that religious texts have always been subject to abrogation (naskh) and reinterpretation based on circumstances. “Is it not the case,” he argued, “that there are abrogating and abrogated verses in a single religious text?” Even if a divine commandment is not entirely abrogated, Shmayil emphasized that humanity’s job is to find the most appropriate methods to reach its intended goal. For example, the execution of murderers is a religious ob- ligation (amr wājib). However, the methods used to fulfill that obligation in one time and place may no longer be effective and should change so long as both achieve the same purpose.60
Responding to Shmayil’s position was Shaykh ʿAlī Yū- suf (1863–1913). Although he later would gain fame for his anti-colonial newspaper al-Muʾayyad, Yūsuf’s first foray into journalism was with the weekly literature journal al-Ādāb. Yū- suf published two pieces rejecting Shmayil’s arguments, taking its title from the Qurʾānic verse, “There is life for you in the law of retaliation” (wa-lakum fī’l-qiṣāṣ ḥayā).61 Yūsuf suggested
58 ʿIqāb al-mujrimīn, al-Ḥuqūq, March 3, 1888. 59 For more on the avoidance of punishment in Islamic criminal law, see
intisar rabb, doubt in islaMic law: a history oF legal MaxiMs, interPretation, anD iSlamic cRiminal law (2015).
60 ʿIqāb, supra note 56. 61 qurʾĀn, 2:179.
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that Shmayil’s argument of historical change was invalid, as the Qurʾānic commandment of retaliation “has existed for centu- ries in a place of respect.” In contrast to Shmayil’s argument of civilization leading humanity from its more violent past, Yūsuf argued that every society, state, and legal system throughout his- tory has expressly confirmed the rules of qiṣāṣ, despite the many changes that they have undergone. This “guides us to the neces- sity that these rules [qiṣāṣ] should remain in place.”62 In Yūsuf’s view, the rules of qiṣāṣ carried a normative value because they were mentioned explicitly within the Qurʾān. The value of the Qurʾān was not subject to historical circumstances. No differ- ence in practical reality could justify a total deviation from its norms.
For Yūsuf, Shmayil’s reliance on principles was mis- placed, even though the principles he cited were valid. According to the fundamentals of jurisprudence (uṣūl al-fiqh), the principle of choosing the lesser evil utilized by Shmayil was too general. Some pre-modern scholars frowned upon applying general prin- ciples to cases, citing the maxim “there is no general statement that has not been specified” (mā min ʿām illa wa kuṣṣiṣ).63 Yūsuf employed this maxim to argue that nothing is more specific than a clear verse of the Qurʾān, and no other form of evidence can override a Qurʾānic commandment. When Shmayil posited that texts may be abrogated or their application modified using prin- ciples, Yūsuf claimed that he had failed to realize that, despite all the instances where principles have been used to abrogate or modify a text, “every religious law and holy text has confirmed the continuity of the law of qiṣāṣ.”64 Yūsuf’s argument here re- flects his dedication to textualism in interpreting Islamic law. The Egyptian government had gone too far in the Penal Code by taking evidentiary conditions from fiqh out of their proper context. The conditions in the code should be removed, and the
62 Wa-lakum fī’l-qiṣāṣ ḥayā, al-ĀdĀb, March 22, 1888. 63 This maxim was controversial for pre-modern scholars, with the four-
teenth-century jurist Aḥmad b. ʿAbd al-Ḥalīm Ibn Taymiyya criticizing it as invalid. See MaJMūʿ al-FatĀwĀ 6:444–45 (Medina: Mujammaʿ al-Malik Fahad li-Ṭibaʿa al- Muṣḥaf al-Sharīf, 2004).
64 Wa-lakum, supra note 62.
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Debating Sharīʿa in Egypt’s National Courts
original Qurʾānic rules maintained to allow judges to apply the harshest punishments more easily.
Finally, Yūsuf believed that the purpose of the law was not to reform individuals but to deter potential offenders (radʿ). He argued that there is no rational or scientific proof that Shmay- il’s “wild branches” can be reformed, and his call to apply the “lesser evil” to society confirms the necessity of executing the most violent criminals rather than having to deal more harshly with them if (and when) they choose to strike again. With qiṣāṣ present, Yūsuf wrote, “murderous criminals find themselves faced with an absolute, unquestionable limit” that they must not cross, receiving an “appropriate punishment” if they do.65 Yūsuf believed that the role of the government was to protect against the spilling of innocent blood. The Interior Ministry’s sugges- tions did precisely that. They reflected the government’s desire to secure the interests of the Egyptian people, ridding them of terrible crimes.
There are apparent ideological differences between the positions of Amīn Shmayil and ʿAlī Yūsuf regarding the pur- pose and necessity of qiṣāṣ. Shmayil relied on history, legal principles, and rational argument to justify the preference for hard labor and maintain the status quo of the Egyptian Penal Code. In contrast, Yūsuf focused on the authoritative power of the Qurʾān to reject the condition introduced by the Penal Code and encourage broader use of the death penalty as a deterrent.
What is interesting in the exchange between Shmayil and Yūsuf is that both writers were able to ground their arguments within the realm of the sharīʿa, and neither suggested that their opponent was using imported or non-sharīʿa ideas. Whether it was Shmayil’s principles of fiqh that the Ottomans had codified in the Mecelle or Yūsuf’s reliance on uṣūl and the texts of the Qurʾān, both found support in positions that had existed long before the introduction of the 1883 code and the establishment of the native courts. Likewise, viewing the purpose of qiṣāṣ to either reform or deter offenders also finds roots in pre-modern juristic discourses. However, reform is more commonly associ- ated with later thinkers and European Enlightenment.
65 Wa-lakum fī’l-qiṣāṣ ḥayā, al-ĀdĀb, March 8, 1888.
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At the same time, both writers also acknowledged that Egypt’s legal and political circumstances had fundamen- tally changed. For example, they called for the modern state to create and apply laws to improve society. Departing from pre-modern fiqh discussions of qiṣāṣ that located the right to punish solely with the victim’s family (awliyāʾ al-damm), both believed that it was the state and the native court judges who were to fulfill the objectives of the sharīʿa through their judg- ments.66 Allowing the state to punish offenders also finds its home in pre-modern juristic discourse, albeit amongst a minori- ty of scholars. For example, the Shāfiʿī ʿAlī b. Muḥammad al- Māwardī (d. 450/1058) and the Mālikī Shihāb al-Dīn al-Qarāfī (d. 684/1285) argued that the political authority retained the right to punish offenders outside of the will of the victim’s family because homicide included “rights of the public good” (ḥuqūq al-maṣlaḥa al-ʿāmma).67 Shmayil and Yūsuf adopted the pre-modern approach most appropriate for Egypt’s circum- stances by placing the right to punish with the state. They were interested in how the courts could best resolve the problem of an increase in criminal activity.
A case presented to the court of Banha in February of 1889, approximately one year after the exchange between Amīn Shmayil and Shaykh ʿAlī Yūsuf, brought to center stage the question of which sharīʿa norms should matter in the na- tive courts. A Bedouin named Khalīl Ḥusayn, who was most likely in his late teens, was arrested and accused of commit- ting the premeditated murder of another Bedouin named Nadhīr al-Mayār. Upon his arrest and during the initial investigation, Khalīl openly confessed to having committed the murder, stat- ing that he was carrying out his duty to take revenge (thaʾ r) against Nadhīr for killing his father when Khalīl was only four months old.68
The trial court judges found themselves torn between the two approaches to punishment expressed by Shmayil and
66 hallaq, sharīʿa, supra note 8 at 320. 67 ʿalī MuḤaMMad al-MĀwardī, al-aḤkĀM al-sulṭĀniyya 346 (Cairo:
Dār al-Ḥadīth, 2006); shihĀb al-dīn al-qarĀFī, al-Furūq 1:257 (Beirut: Dār al-Ku- tub al-ʿIlmiyya, 1998).
68 al-Ḥuqūq, March 30, 1889.
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Debating Sharīʿa in Egypt’s National Courts
Yūsuf. On the one hand, there was the option of execution pro- vided by the 1883 Penal Code. Khalīl fulfilled all the conditions required by the law: he committed homicide, developed spe- cific intent, and waited until the opportune moment to murder his victim. He had also confessed and, even when questioned by the judges in the court, repeated and confirmed his confes- sion. Following the approach of Yūsuf, Khalīl was a product of the lawlessness that plagued Egypt. The state should execute Khalīl, using its power to enact the strictest punishments to de- ter others. On the other hand, Khalīl firmly believed that his acts were justified, as his Bedouin culture of preserving family honor dictated that he must take revenge for his father’s murder. He was, as Shmayil had argued, a “wild branch” that should be educated, reformed, and encouraged to become a more produc- tive member of society.
In its final judgment on March 9, 1889, the court fol- lowed the view that Shmayil would embrace. While acknowl- edging that there is no legitimate excuse for murder and that revenge killing should never be accepted, the court also stated that “the conditions of this case, the evidence presented, the age of the defendant, his strongly held belief based on ignorance and the environment in which he was raised, and the strong moral leanings of the Bedouin community towards revenge ne- cessitate that the court exercise compassion and mercy.” Khalīl was sentenced to only seven years of prison with hard labor, the shortest period possible for homicide in the Penal Code.69 The judges of the native courts adopted the sharīʿa norm of acting in the interests of the public good by utilizing the state’s power. Executing Khalīl would have provided no deterrent to future offenders, as Bedouin culture firmly held to the right of victims to take revenge. The best option for Khalīl was to be punished for his actions but allow him the opportunity to continue his life and, possibly, learn from his actions and be reformed.
The debate about qiṣāṣ and the conditions controlling the application of the death penalty in Egypt continued. The rec- ommendations from the Interior Ministry that sparked this de- bate in the press were not immediately adopted. It was only in
69 Id.
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December 1897, after the murder of a British official, that the situation changed. In a Khedival Order, the article outlining the condition of eyewitnesses or confession was annulled, allowing judges to order the execution of murderers more easily.70
Interestingly, it was al-Muʾayyad, run by Shaykh ʿAlī Yūsuf, that published opinion pieces defending the article and demanding that it be retained as a “defense of the sharīʿa, which would rather have evildoers and thieves declared innocent rather than execute an innocent defendant.”71 Standing against al-Muʾayyad was Amīn al-Bustānī, writing in the periodical al-Muqaṭṭam, who had long argued that the article requiring eyewitnesses or confessions was a barrier to punishment. For al-Bustānī, the article’s removal was a victory for the “hand of truth” and that “justice, the sharīʿa, and the wisdom of the ju- diciary are now at a consensus [that the article is abhorrent].”72 Even though the tables had now turned, both supporters and de- tractors of the conditions of qiṣāṣ still located their positions within the sharīʿa.
Beyond debates regarding the content of the law, the im- plementation of the native courts, a singular court system for all Egyptians, opened questions about who would apply the law. Could Coptic Christians, the largest non-Muslim minority in Egypt, adjudicate in matters of the sharīʿa? The following sec- tion discusses a similar debate that evolved regarding Christian judges in the native courts.
Can ChriStianS JudgE aCCording to iSlamiC law?
One of the core characteristics of the sharīʿa courts, both before and during the nineteenth century, was that the judges and sup- port staff were Muslims trained in fiqh. When a royal order set up the appointment of judges in the sharīʿa courts in 1880, the Shaykh of Egypt’s Islamic University, al-Azhar, and the grand
70 al-bustĀnī, MukhtĀrĀt, supra note 54 at 144. 71 Eugene Clavel, Mashrūʿ al-tawassuʿ fī’l-iʿdām: al-mādda 32 min
Qānūn al-ʿuqūbāt al-miṣrī, al-Muʾayyad, December 8, 1897. 72 Amīn Afrām al-Bustānī, Khitām al-kalām ʿ ala al-mādda 32, al-muqa-
ṭṭaM, December 18, 1898.
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Debating Sharīʿa in Egypt’s National Courts
muftī had to approve the candidacy of any judge before they were referred to the Ministry of Justice and the Khedive.73
In the native courts, the situation was quite different. Judges were to be selected based on the recommendation of the Minister of Justice and approved by the Cabinet, with no in- volvement of the religious authorities.74 Judges were expected to have “sufficient knowledge of the law” (dhā dirāya kāfiya bi’l-qawānīn) and could serve so long as they were more than twenty-five years old (for lower courts) and promised to hold no other official position while acting as judge.75 Native court judg- es could come from almost any intellectual background. They did not need to know the rules of fiqh or be well-versed in the pre-modern Islamic tradition.
Following these regulations, the judges of the native courts were drawn from a pool of existing government officials. Their selection was essentially a political decision. For exam- ple, one of the judges of the Cairo Appellate Court, ʿUmar Bek Rushdī, was a military expert with no legal experience until his appointment to the Alexandria Appellate Court in 1884. His bi- ography mentions Rushdī’s support of Khedive Tawfīq during the Urabi Revolution of 1879–82 that had sought to depose the Khedive due to perceived British and French influence. Accord- ing to the entry, Rushdī“was never responsive to the calls to rebel” and “advocated for the support of the Khedive for better or worse.”76 However, appointments based on political loyalties should not indicate that the government ignored previous legal expertise when choosing judges for the native courts. The head of the Cairo Appellate Court in the 1890s, ʿ Abd al-Ḥamīd Ṣādiq, had an extensive legal education and had served as a judge in the state councils since 1862.77
Nevertheless, the shadow of political favoritism persist- ed. In October of 1887, Muḥammad ʿĀrif penned an article in
73 Order 12 of 1880 (Lāʾiḥa al-maḥākim al-sharʿiyya [Sharīʿa Courts Or- der]), art. 5.
74 Unnumbered order of June 14, 1883 (Lāʾiḥa tartīb al-maḥākim al-ah- liyya [Order to Establish Native Courts]), art. 32.
75 Id., art. 36. 76 ĀṣĀF, dalīl, supra note 33 at 289. 77 Id. at 277.
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al-Qāhira al-ḥurra questioning the judicial appointments made by the Minister of Justice, the Coptic Christian Buṭrus Ghālī. Ghālī was no stranger to controversy nor was he short on po- litical enemies, as he had sided with Aḥmad ʿUrābī during the 1879 Revolution and published a manifesto with the Coptic Pope Cyril V opposing Khedive Tawfīq’s rule and British sup- port.78 According to ʿĀrif, Ghālī had used his position to appoint Christians “in the appellate courts who know nothing about the sharīʿa, with one being a station assistant in the railways and another who was in the military marching band.” The same sit- uation had occurred in the office of the Public Prosecutor, with Ghālī “appointing his friends who are not qualified,” a matter that was rumored to have led to Shafīq Manṣūr, the Prosecutor’s secretary, to resign in protest.79
Responding to ʿĀrif’s attack was another Cairo daily, al- Waṭan, managed by a Christian named Mikhāʾīl ʿAbd al-Sayyid. He took issue with ʿĀrif’s characterization of Copts as unable to participate in the country’s legal system. “He [ʿĀrif] writes that Coptic judges are unqualified . . . [However,] we have heard from their trustworthy Muslim brothers that they perform their duties with integrity, humility, transparency, and skill.”80 According to ʿAbd al-Sayyid, ʿĀrif’s statements were merely due to his ignorance of Egyptians, who had stood shoulder to shoulder in military conflicts and participated equally in soci- ety, regardless of their faith. ʿAbd al-Sayyid also accused ʿĀrif of threatening the stability of Egypt’s national harmony. “[This kind of criticism] creates hysteria and concern between Muslims and Copts,” he wrote, “causing one to look at the other with jeal- ousy as if the Copts hold the proverbial Keys to the Kingdom.”81 ʿAbd al-Sayyid was wary that ʿĀrif’s statements could ignite communal conflict and disrupt Egypt’s nascent nationalism. The concern of sectarian strife was fresh on ʿAbd al-Sayyid’s mind in the aftermath of the Urabi Revolution.
78 Samir Seikaly, Prime Minister and Assassin: Butrus Ghali and Ward- ani, 13 miDDle eaSTeRn STuDieS 112 (1977).
79 Saʿādat Buṭrus Bāshā Ghālī, al-qĀhira al-Ḥurra, October 27, 1887. 80 al-waṭan, October 29, 1887. 81 Id.
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Debating Sharīʿa in Egypt’s National Courts
A few days later, al-Qāhira al-ḥurra published ʿĀrif’s response. “Our [publication’s] investigation into the function- ing of the native courts is only a desire to see their organiza- tion perfected and to protect them from those who spread dis- information. We have never discussed forbidden matters that threaten the foundations of society. Rather, we seek to break the backs of the enemies of truth.”82 ʿĀrif was also furious about the accusations against his patriotism, writing, “The native courts belong to Muslims, Christians, Jews, and every Ottoman born under the crescent flag [of Egypt] without any discrimina- tion.”83 According to ʿĀrif, Egypt’s national integrity was not up for debate. All members of society, regardless of faith, were equal participants in the country’s progress. What was at stake for ʿĀrif was the truth.
It was in the next section where ʿĀrif elaborated on this vital point: “It is shocking to hear that this snitch suggests that our investigation seeks to promote the Islamic element [al-ʿunṣur al-islāmī] to cause strife between our Coptic brothers and us,” he wrote. “Our paper only seeks the triumph of the truth [al-ḥaqq]. If we are to support the country, what is our country other than an Islamic one that embraces the Copt? Should our paper be la- beled Islamic if it seeks the clear truth [al-ḥaqq al-ẓāhir]?”84 As will be seen in more detail below, ʿĀrif’s response used the truth as a universal value connected to the goal of achieving justice inherent within Islam. ʿĀrif meant to turn the tables against his opponent. When hinting that ʿĀrif was promoting the “Islamic element,” it was ʿAbd al-Sayyid who engaged in sectarianism by suggesting that ʿĀrif believed Islam held a monopoly over the truth. In reality, ʿĀrif argued that the native courts applied a universal truth for Muslims and Christians.
Feeling that the argument had reached a boiling point, Amīn Shmayil intervened to calm the debate by responding to both ʿAbd al-Sayyid and ʿĀrif. “We sympathize with the editor of al-Waṭan from what he has seen in the attacks of al-Qāhira al-ḥurra against his co-religionists,” he wrote. However, “conflict
82 Radd wajīz, al-qĀhira al-Ḥurra, November 1, 1887. 83 Id. 84 Id.
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within the Arabic press should not be to humiliate the people of this country. Rather, it should be to support their rights and pre- vent the causes of sectarian strife.” He then described several historical contributions of Coptic Christians to Egyptian military victories and listed prominent Coptic figures in the native courts, the Public Prosecutor’s Office, and other ministries.85
Shmayil also agreed that those who had received gov- ernment appointments based on favoritism should be removed. Positions in the courts should be given “without discrimination based on their religion, but rather based on their qualifications to serve the nation.” The vital point for Egypt’s development was the growth of its institutions. Egypt had preceded the world’s developed countries for centuries but was now in a race to compete. “If we only focus on [criticizing each other],” wrote Shmayil, “we will find ourselves isolated and unable to catch up with them [Europe].”86 Shmayil’s reference to “catching up” reveals much about his approach to reform. As mentioned ear- lier, Shmayil acknowledged that France heavily influenced the native courts’ form and content. He felt that Egypt was “behind” Europe in its legal development. However, Shmayil’s focus on France should not be understood to mean that Shmayil advocat- ed for a wholesale importation of European norms. Instead, he felt that France and other European jurisdictions had made sig- nificant progress in achieving the universal goal of justice that must be applied considering each nation’s practical reality. In Egypt, justice could only be served by drawing inspiration from its native legal tradition, the sharīʿa.
The argument launched by Muḥammad ʿĀrif in al-Qāhira al-ḥurra can be placed against the backdrop of sectarian fears that appeared during the Urabi Revolution. The debate also re- flects political differences between the authors and questions of national independence. Indeed, ʿAbd al-Sayyid suggested that ʿĀrif’s criticisms of the native courts were made partly to “give cause to prevent the British from leaving the Nile Valley.”87 The British occupation, although limited in its interference in the
85 Al-Qāhira wa’l-waṭan, al-Ḥuqūq, November 5, 1887. 86 Id. 87 al-waṭan, October 29, 1887.
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Debating Sharīʿa in Egypt’s National Courts
daily affairs of the Egyptian government, was always present in the background of reformist thought. More overt calls for inde- pendence, like those hinted at by ʿAbd al-Sayyid in his criticism of ʿĀrif, would become important as Egypt’s political environ- ment flourished in the twentieth century. For the exchange dis- cussed here, local concerns about the nature and necessity of reform in areas of Egyptian society like the legal system were more pressing.
ʿĀrif’s response to al-Waṭan also reflects an essential point in the conceptualization of the sharīʿa. With the devel- opment of the native courts and the new codes, the sharīʿa was being drawn into the Egyptian context, adjudicating matters between individuals based on national and not religious affili- ation. As a result, the courts’ activities would naturally include Muslims and non-Muslims. The presence of non-Muslim judges created a problem for ʿĀrif, as fiqh limited the construction and application of the law to Muslim jurists.
For Shmayil, a Christian, the sharīʿa was not bound to a particular religious class. Instead, it was a legal system not unlike British common law or French civil law. Anyone could access it. When he studied with Ḥanafī scholars during his childhood in Lebanon or wrote about the sharīʿa in al-Ḥuqūq, Shmayil did not feel that he was interfering in a discourse that was not his own. Quite the contrary, he actively participated in the Islamic legal tradition, using it as a basis for the Egyptian legal system.
ʿĀrif seems to have partially accepted Shmayil’s argu- ment that the sharīʿa was not bound to Muslims when speaking of the native courts as aiming to apply “the truth” (al-ḥaqq). By doing so, ʿĀrif equated the realization of the sharīʿa to the more general idea of establishing justice, a concept that per- meated local discourse throughout the second half of the nine- teenth century. Even for a critic like ʿĀrif, the native courts still reflected an application of the sharīʿa and had no impact on the “Islamic” nature of the modern Egyptian state so long as they continued to push towards their goal of providing justice in their application.
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Perhaps one of the most significant shifts of the legal reforms in the modern period was the universality of the native courts and the fact that Egyptians would no longer be classified upon religious grounds in matters of public law. The following section shows how the sharīʿa, through the native courts, formed the core of a new national legal system.
thE Sharīʿa aS national JuStiCE
In 1881, two years before the establishment of the native courts and amid the Urabi Revolution, one of Egypt’s most prominent scholars of the Arabic language and a founding member of the Dār al-ʿUlūm Academy, Shaykh Ḥusayn al-Marṣafī (1815–90), published a text entitled The Eight Words. His work was directed to the “young intelligentsia,” stating that it would clarify “some of the most popular terms of this age.”88 Although scholars identified al-Marṣafī’s book as a foundational text of Egyptian nationalism and modernism, I argue that it is also representa- tive of the reformist view of the sharīʿa.89 Through his writing, al-Marṣafī promoted an equivalency made by several reformers between sharīʿa and achieving national justice.
In his opening section on the nation (al-umma), al- Marṣafī wrote that a prosperous nation is one in which every level of society respects one another yet is not afraid to speak up when the truth (al-ḥaqq) is threatened. Regardless of status, “no one should be afraid to respond [to something unjust], nor should anyone sneer at being rebuked.” This was because, in al- Marṣafī’s view, “the developed purpose for all [members of a society] is the realization of truth, determining what is right [al- ṣawāb], and gaining what is good [al-ṣalāḥ].”90 To bolster the importance of upholding the truth, al-Marṣafī referred his read- ers to pre-modern fiqh and a debate between two eponyms of the classical schools of Islamic law: Mālik b. Anas (d. 179/795) and his student Muḥammad b. Idrīs al-Shāfiʿī (d. 204/820). Mālik,
88 Ḥusayn aḤMad al-MarṣaFī, risĀla al-kaliM al-thaMĀn 28 (Khālid Ziyāda, ed., 2019).
89 tiMothy Mitchell, colonising egyPt 136 (1988). 90 al-MarṣaFī, risĀla, supra note 88 at 31.
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Debating Sharīʿa in Egypt’s National Courts
whom al-Marṣafī termed “the first great scholar of the nation,” was famously reported to have said, “Every one of us rebukes and is rebuked.” In one instance, al-Shāfiʿī, although he was only a student of Mālik, openly questioned his teacher’s ruling re- garding the validity of the sale of a slave. Once presented with the appropriate evidence, Mālik backed off, stating that al-Shāfiʿī was correct on the law.91 Al-Marṣafī’s reference to these early Muslim jurists shows he believed that the goal of the sharīʿa to promote truth was universal. The truth is not bound to a particular context. Examples of scholars seeking truth through the sharīʿa can be found in both the pre-modern and modern periods.
Amīn Shmayil echoed al-Marṣafī’s equivalence of sharīʿa and truth in the first year of al-Ḥuqūq. For Shmayil, the concept of al-ḥaqq was “the science of building knowledge of legal systems and their distribution.” The sharīʿa “was the con- trolling factor of human activity. Whatever agrees with it is just, and whatever does not is unjust. [Therefore,] the science of law is to distinguish the just from the unjust.”92 Shmayil would later elaborate on the connection between divine sharīʿa and posi- tive law by stating that “The source of all legal systems is di- vine and natural truth [al-ḥaqq al-ilāhī wa’l-ṭabīʿī]. However, there must be a positive and manmade law that completes the structure of justice [al-binya al-ʿadliyya]. The civil law [of the Ottoman Empire and Egypt] is the product of divine and natural law and composed of it.”93 Shmayil’s “structure of justice” add- ed to al-Marṣafī’s definition of truth and established the sharīʿa at the core of Egypt’s legal system. The sharīʿa constituted the inspiration and source for the law but needed further elaboration by positive law to ensure its implementation given the changing social circumstances of nineteenth century Egypt.
The proper application of the sharīʿa for al-Marṣafī and Shmayil meant achieving justice within the national con- text, extracting the specific rules necessary for the time from the sharīʿa’s commandments and principles. Creating practical
91 Id. 92 Al-Qism al-ḥuqūqī: fī’l-ḥaqq wa-ʿilm al-aḥkām wa mā li-ʿulamāʾ
al-muslimīn min ṭūl al-bāʿ fī dhālik, al-Ḥuqūq, June 31, 1886. 93 Al-Qism al-adabī: fī taqaddum al-ʿuthmāniyya baʿd sana 1856, al-
Ḥuqūq, August 30, 1890.
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Journal of Islamic Law | Special Issue 2023
rules has been done in the past through fiqh. However, it was now essential to “widen the meaning of the sharīʿa to make it agree with the time, place, and people [it is applied to]. To do so, the gates of interpretation [ijtihād] must be opened, and the reform field expanded for the people of knowledge, who are the ultimate guardians of all legal systems, no matter their source.”94 By calling on ijtihād, a term usually applied to Muslim jurists, Shmayil showed that he and the Egyptian committee that creat- ed the codes used in the native codes were performing the same task as those in the past. Like al-Marṣafī’s search for the truth, the process of ijtihād was universal and needed to continue to create effective law.
In al-Ādāb, Shaykh ʿAlī Yūsuf concurred that national justice was the goal of Egypt’s modern legal reforms. For ex- ample, he praised the criminal system’s development and its transparency. Before 1883, “administrators managed criminal cases without any established rules or foundations . . . cases were brought before judges who had no independence and is- sued rulings in the shadows against defendants they had never seen or heard a word from.” With the introduction of the native courts, judges “follow the path of legal investigation, transpar- ent hearings, and give defendants every opportunity to defend themselves with representation.”95 For Yūsuf, the success of the native courts was relevant because they applied the procedures necessary to realize justice. Yūsuf added the critical element of procedure to Shmayil’s overall structure. He confirmed that the realization of the sharīʿa occurred when evidence was presented and defendants could respond to accusations against them.
In practice, the image of national justice through trans- parent court procedure can be seen in a murder case from the Upper Egyptian oasis of Fayoum, adjudicated in 1888. A retired military general named Muṣṭafa Wāṣif Bek, who served with the Egyptian army’s ill-fated campaign into northern Ethiopia, had acquired a large plot of land from the government in the Fayoum Oasis village of Ihrīt in place of his pension. One evening during
94 Id. 95 Al-Tārīkh al-usbūʿī, fī al-qaḍāyā al-jināʾiyya, al-ĀdĀb, March 30,
1889.
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Debating Sharīʿa in Egypt’s National Courts
Ramadan, Muṣṭafa and two acquaintances, Muḥammad al-Jaʿīdī and a Bedouin named Saʿd Ḥatwīsh, were invited to break their fast at the home of Khalīl and Khayr Allāh al-Dahshān, a promi- nent family of landholders. As the evening progressed, residents of the village heard shots fired from inside the house. When they rushed to see what had occurred, they reportedly found Muṣṭa- fa dead and one of the brothers, Khalīl, injured with a gunshot wound in his arm.96
In 1888, the native courts only functioned in Lower Egypt. Local administrative councils initially managed the in- vestigation and trial in Fayoum. When the case was brought be- fore the council, the al-Dahshān brothers testified that they heard an unidentified Bedouin man yelling outside the home and began to fire. They were not sure of the motive behind the crime but suggested that there was a blood feud between the anonymous attacker and Muṣṭafa’s companion. Khalīl and Khayr Allāh were innocent bystanders caught in the crossfire.97
As the case involved the murder of a high-ranking for- mer military officer, the local investigative report was sent to Cairo, where it eventually reached the office of the Prime Min- ister, Muṣṭafa Riyāḍ Bāshā. The Prime Minister ordered special- ists from the police and the Cairo Public Prosecutor’s Office to go to Fayoum and conduct a more comprehensive investigation. When they reported back to Cairo, they expressed concerns that the local council had failed to conduct their investigation accu- rately. They suggested that the al-Dahshān brothers had inten- tionally murdered Muṣṭafa.98 In response, Riyāḍ Bāshā ordered a special tribunal be set up in Fayoum to retry the defendants. The tribunal would be staffed by prominent judges from the first instance and appellate sections of the native courts in Cairo with no option for appeal, and each party would have full legal rep- resentation. The state was represented by Aḥmad Ḥishmat, gen- eral counsel for the native courts. The two defendants had three attorneys: Aḥmad al-Ḥusaynī, Khalīl Ibrāhīm, and Akhnūkh Fānūs, each with a high public profile. Finally, the family of
96 Al-Qism al-qaḍāʾī: muḥākama qātilī al-marḥūm Muṣṭafa Bek Wāṣif, al-Ḥuqūq, October 6, 1888.
97 Id. 98 Ḥāditha al-fayūm, al-aḤkĀM, November 1, 1888.
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Muṣṭafa Wāṣif was represented by Saʿd Zaghlūl, who would go on to become one of Egypt’s most famous lawyers and revolu- tionary politicians.99
The tribunal began its work on the first of October 1888 in the Khedival court of Fayoum city. The trial lasted two full days and included sixty-four witnesses for the prosecution, med- ical reports, and even geographical surveys of the al-Dahshān home and surrounding area. In response, the defendants provid- ed no additional witnesses beyond those presented in the initial investigation. Their attorneys argued that the public prosecutor had mistreated the brothers, that witnesses had been pressured to give false testimony, and that they deserved to be treated with mercy.100
During the trial, the tribunal found that shots could not have come from outside the home. The al-Dahshān residence was set against a hill, and the trajectory of the bullet wounds found in both Muṣṭafa and Khalīl were inconsistent with an ex- ternal attack. The court also examined the testimony of one of Khalīl’s neighbors, who stated that Khalīl had come to him after the incident and asked him to help fake a bullet wound in his arm and cut his clothes, making it seem he was injured.101
Through the testimony of several other witnesses, the tribunal discovered that during the evening in question, Khalīl had asked to examine an old war revolver that Muṣṭafa carried with him. After Muṣṭafa told him that the pistol was rusted and probably would not work, Khalīl aimed it at him and shot him in the arm. Muṣṭafa cursed at the brothers and yelled, “This is treachery, and what people say about you is true. May God de- stroy your home!” The other brother, Khayr Allāh, then blocked the exit, aimed a carbine rifle at Muṣṭafa, and fired into his chest, killing him instantly. The brothers then tried to hide Muṣṭafa’s body and lied to the gathering villagers. Only when the body was found, and questions raised about Muṣṭafa’s death, did the brothers use their influence to pressure the villagers into testify- ing that they had seen Khalīl injured and Muṣṭafa dead, setting
99 Al-Qism al-qaḍāʾī: muḥākama, supra note 96. 100 Al-Qism al-qaḍāʾī: tābiʿ al-ḥukm fī qaḍiyya al-dahāshana, al-Ḥuqūq,
November 1, 1888. 101 Id.
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Debating Sharīʿa in Egypt’s National Courts
up the story of an external attack.102 After the proceedings, the tribunal sentenced Khalīl and Khayr Allāh al-Dahshān to exe- cution and ordered them to pay the hefty sum of three hundred Egyptian pounds as restitution to the victim’s family. They were publicly hanged one week later.103
As seen from the level of attention and detail the local press provided, the al-Dahshān brothers’ trial was a spectacle of the new Egyptian court system in action. According to some re- ports, the proceedings were attended by no less than 2500 mem- bers of the public who had come from all parts of the country.104 The trial was designed to show off the competency of the native courts, push back against critics, and confirm that the courts rep- resented a new standard of justice that applied to all areas of the country. A reporter writing in al-Ahrām remarked, “This trial was a pinnacle of organization, perfection, fairness, and justice. The voices of the local population cry out for the native courts to be extended to Upper Egypt due to what they have seen in their procedures compared to the local councils.”105 In al-Qāhira al-ḥurra, its reporter wrote,
As justice is the basis for all power and dominion, spread over all areas of the country under the authority of the Khedive, and flowers amongst his subjects, not a day has passed where we have not seen new efforts in establish- ing justice from members of his government . . . I have seen a significant difference between the organization of the native courts and the Upper Egyptian councils that function according to the old ways.106
The tribunal and the praise it received had their desired ef- fect. The native courts were expanded to the Upper Egyptian
102 Id. 103 Id. 104 Al-Ḥukm fī qaḍiyya al-marḥūm Muṣṭafa Bek Wāṣif, al-ahrĀM, Octo-
ber 4, 1888. 105 al-ahrĀM, October 4, 1888. 106 Al-Fayūm li-makātibinā, al-qĀhira al-Ḥurra, October 6, 1888.
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districts of Beni Sueif, Asyut, and Qena just a few months later, in January 1889.107
For Amīn Shmayil in al-Ḥuqūq, the al-Dahshān trial was not only a victory for Egyptian law but one for the sharīʿa as well. “There is no doubt,” he wrote, “that the result of this trial will be the spread of calm and peace over general Egyptian so- ciety and a terrible deterrent to criminals, who will not dare to commit similar acts.” He rebuked critics of the trial who ques- tioned the evidence presented and that the court did not follow the conditions of qiṣāṣ–requiring two eyewitnesses or a confes- sion–turning in his defense to the broader view of the sharīʿa that included the right of the political authority to make law (siyāsa). He wrote, “The ruler [walī al-bilād] may legislate in extraordinary circumstances such as these. We must also con- sider the competency of the investigating committees, the court, and the testimony of witnesses in confirming the charges lev- eled against the defendants [as more valuable] than these tawdry claims.”108 Holding a public trial and presenting evidence were sufficient guarantees for Shmayil that the sharīʿa, in both form and process, had been achieved.
By 1889, the idea that the native courts represented a modernized and nationalized venue for applying the sharīʿa to all Egyptians was firmly established. Even ʿAlī Yūsuf, writing in al-Muʾayyad, agreed that the native courts were, despite their shortcomings, “the best way to preserve the rights of Egyp- tians.”109 The trial of the al-Dahshān brothers was an important example of the success of the native courts. Its result confirmed for most observers that accessing the sharīʿa to create rules rel- evant to current circumstances that were then applied by a trans- parent process was the only way the country could solve past problems and guarantee justice.
107 Tūmā, Majālis, supra note 26. 108 Al-Qism al-qaḍāʾī: muḥākama qātilī al-marḥūm Muṣṭafa Bek Wāṣif,
al-Ḥuqūq, October 6, 1888. 109 Maḥkama Miṣr al-ahliyya, al-Muʾayyad, December 10, 1889.
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Debating Sharīʿa in Egypt’s National Courts
uSing Sharīʿa for thE publiC good
As noted at several junctures, the reformers and commentators in late nineteenth-century Egypt did not conceive of the sharīʿa as a set of fixed laws. Likewise, they did not view the works of jurists as having an intrinsic authoritative or normative value. Instead, the discussion of which rules should be chosen for the Egyptian codes was open-ended. Reformers viewed the sharīʿa as a legal system (niẓām qānūnī), a body of guiding principles, viewpoints, and substantive rules that could be accessed by classical jurists and non-jurists alike to create law. Muḥammad Sirāj has elabo- rated on the idea of the sharīʿa as a holistic legal system, argu- ing that the methodology of the Islamic system consists of “the science of extracting the rules of the sharīʿa (al-aḥkām) from their sources”–the traditional definition of the fundamentals of jurisprudence (uṣūl al-fiqh)–combined with “the mechanisms for implementing these rules in practical reality through legislation and the judiciary.”110 Sirāj’s definition of the sharīʿa can be help- ful as an alternative framework to the jurist-centered approach present in the current literature on Islamic legal history. Like the work of Fahmy, Sirāj removes the sharīʿa from its pre-modern barriers and integrates the role of the political authority.
More importantly, Sirāj’s conceptualization of the sharīʿa accurately reflects the sentiments of reformers in the nineteenth century. Reformers like Shmayil and Shaykh ʿAlī Yūsuf were most interested in the idea that the law should apply to “practi- cal reality” or, as the German historian of Islamic law Mathias Rohe put it, the idea that every legal system is “integrated within a social context and influenced by it to a significant degree.”111 When Amīn Shmayil and Shaykh ʿAlī Yūsuf debated the pur- pose of punishment for homicide, they were both fully aware of the pre-modern groundings of their positions in the sharīʿa and fiqh. Their concern was which of these approaches would most appropriately fit the specific needs of the time. However, the fiqh
110 MuḤaMMad aḤMad sirĀJ, Fī uṣūl al-niẓĀM al-qĀnūnī al-islĀMī: dirĀsa MuqĀrana li-ʿilM uṣūl al-Fiqh wa taṭbīqĀtihi al-Fiqhiyya wa’l-qĀnūniyya 29 (2020).
111 Mathias rohe, islaMic law in Past and Present 5 (2015).
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was not discarded entirely. The rulings of classical jurists could remain applicable, but only so long as they continued to fulfill the needs of modern Egyptian society.
The focus on practical reality refers to a concept in pre-modern juristic discourse known as the “public good” (maṣlaḥa). Developed in classical legal theory during the elev- enth century ce,112 maṣlaḥa became a tool for adapting Islamic law to changing circumstances. Mohammad Fadel has suggest- ed that maṣlaḥa reflected “the political or social dimension of the law.”113 Maṣlaḥa, as a technical term, was rarely explicitly mentioned in al-Ḥuqūq, al-Ādāb, or al-Muʾayyad. Nevertheless, maṣlaḥa played a critical role in justifying the sharīʿa legitima- cy of the codes used for the native courts. For example, when the draft of the Egyptian Penal Code of 1883 was presented to a committee of jurists from each of the four Sunnī schools of jurisprudence, their final report stated that “the articles of these laws either match what is found in a text from one of the four schools of law, do not oppose them, or are considered part of the public good [al-maṣāliḥ al-mursala] in which interpretation [ijtihād] is permissible, taking into consideration the needs of the population.”114
Many conservative intellectuals were concerned that the broader definition of the sharīʿa and the use of maṣlaḥa to meet the needs of Egyptian society carried with it a tinge of utili- tarianism.115 If the sharīʿa was no longer an end, subsidiary to pursuing broader goals such as justice and modernization, the legal system could stray too far from its foundations. Writing in al-Ādāb in 1887, ʿAlī Yūsuf argued that more attention should be paid to the sharīʿa as a “controlling factor” than had been accepted by Shmayil in al-Ḥuqūq. Defining the term “freedom”
112 Felicitas Opwis, Maṣlaḥa in Contemporary Islamic Legal Theory,12 iSlamic law anD SocieTy 182 (2005).
113 Mohammad Fadel, Maṣlaḥa as “Flourishing” and Its Place in Sunni Political Thought, 7 JouRnal of iSlamic eThicS 1 (2023).
114 Quoted in ʿalī ʿalī Manṣūr, khaṭwa rĀʾida naḤw taṭbīq aḤkĀM al-sharīʿa al-islĀMiyya Fī’l-JuMhūriyya al-ʿarabiyya al-lībiyya 32 (1972).
115 For more on the question of utilitarianism and its impact on the sharīʿa in modern Egyptian law, see clark loMbardi, state law as islaMic law in Modern egyPt: the incorPoration oF the sharīʿa into egyPtian constitutional law 78–85 (2006).
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Debating Sharīʿa in Egypt’s National Courts
(al-ḥuriyya), Yūsuf wrote that “there is no human power that can bring such just laws [as the sharīʿa] that provide a barrier to the [uncontrolled] desires of individuals and bind the general legal system.”116 Allowing public opinion to define the contours of the law or moving beyond the restrictions provided by the sharīʿa in favor of unrestrained human reason was the greatest threat to the progress achieved with the creation of the native courts.
The concerns expressed by Yūsuf would fuel the narra- tive that Egypt’s legal reforms transformed the divine sharīʿa and subjugated it to man-made state law. However, these ideas flowered later and should be seen as a product of Islamist move- ments that find their ideological home in the circumstances of the twentieth century.117 For reformists writing during the late nineteenth century, the native courts were a step towards the re- alization of a national system of justice, albeit imperfect and debated, with the sharīʿa still operational at its core.
ConCluSion
Whether Egypt’s modern legal system is an authentic representa- tion of the sharīʿa and whether the influence of European norms has fundamentally changed the nature of Egyptian law remain contentious issues for Islamic legal historians and practitioners alike. The activities of the native courts and the periodicals that followed their early development demonstrate that reformers had little concern that the sharīʿa continued to operate in Egypt. Ideas informed by European movements, such as evolutions in the rule of law, the separation of powers, and the creation of an independent judiciary, helped shape the reforms. However, commentators from different ideological orientations debated and understood these ideas as comfortably placed within the realm of the sharīʿa and believed in a more holistic approach that included the state’s role in creating law. Similarly, pre-mod- ern juristic approaches to law continued to matter, reshaped to find the best sharīʿa-guided path to reform the Egyptian legal system and provide justice for all.
116 Al-Ḥuriyya, al-ĀdĀb, February 17, 1887. 117 For more on this period, see wood, islaMic, supra note 17.
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Significant work remains to develop a clearer picture of the legal reforms in the Muslim world during the colonial period and how evolving norms were synthesized into modern Muslim legal systems. Further observations should be centered around the perspectives of those living and working at the time, allowing for a more accurate understanding of the complexities, differences of opinion, and ideologies at work.
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- Cover
- Title
- Copyright
- Contents
- Chapter I: Germanness, Othering and Ethnic Comedy
1
Lost in Translation? Mahr-Agreements, US Courts, and the Predicament of Muslim
Women
Zelun Kang
UCSB
RG ST 2
2023/10/21
2
Response Paper: Lost in translation?
The text brings out an interesting aspect of law worth discussion: when the religious law
conflicts with the general customary law. The US law advocates for equitable distribution of
marital property upon divorce, often by splitting it in half. In Islam, a wife is entitled to a certain
amount of mahr payment from the husband if divorced (Scheunchen, 2021). Muslims will contract
their marriage under Islamic law and traditions. However, when this goes sour, and they bring their
cases to the civic court, it's always hard to establish how to solve disputes with a law that was not
used while engaging the contract. Most courts may not be exhaustively acquitted with the many
religious law requirements. Furthermore, some religious laws may be clearly unlawful according
to civil law and thus cannot be recognized. Unfortunately, when the two laws collide, there is a
victim, and in this case, it's primarily Muslim women.
In as much as our constitution gives the right to religion and religious law, they should
never be above the general civil law that guides all netizens. It is advisable to include religious
courts that can resolve minor conflicts and divorces that are amicable. When either party is not
satisfied, they should consult the ordinary court, where they should be ready for civil law to solve
their conflict. In a Muslim divorce case, the court should go to equitable sharing of property among
the divorcees and ignore the mahr agreements because most of these agreements are not
formalized and are subject to distortion. It would be complicated for the courts to solve every case
depending on their religious affiliations, which are often biased and chauvinistic. Community
property law property, where marital properties are shared equally, is the most reasonable
approach. In case any couple does not find the customary law fair, then they should work on
solving issues at the religious law level. Public law should be senior and the final say to ensure
that no one is segregated and oppressed by religious law.
3
References
Scheunchen, T. (2021). Lost in translation. Journal of Islamic Law, 2(1), 36–90.
https://doi.org/10.53484/jil.v2.scheunchen
