How Muftis Think Studies in Islamic Law and Society Founding Editor Bernard Weiss Editor Board Ruud Peters A. Kevin Reinhart Nadjma Yassari volume 44 The titles published in this series are listed at brill.com/sils How Muftis Think Islamic Legal Thought and Muslim Women in Western Europe By Lena Larsen LEIDEN | BOSTON The Library of Congress Cataloging-in-Publication Data Names: Larsen, Lena, author. | Moe, Christian, translator. Title: How muftis think : Islamic legal thought and Muslim women in Western Europe / by Lena Larsen. Description: Leiden ; Boston : Brill, [2018] | Series: Studies in islamic law and society ; v. 44 | Includes bibliographical references and index. Identifiers: LCCN 2018012757 (print) | LCCN 2018013523 (ebook) | ISBN 9789004367852 (E-book) | ISBN 9789004367791 (hardback : alk. paper) Subjects: LCSH: Women (Islamic law)–Europe, Western. | Muftis (Muslim officials)–Europe, Western. | Fatwas–Europe, Western. | Islamic law–Interpretation and construction. Classification: LCC KBP526.32.L37 (ebook) | LCC KBP526.32.L37 A34 2018 (print) | DDC 297.082/094–dc23 LC record available at https://lccn.loc.gov/2018012757 Translated by Christian Moe Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill‑typeface. ISSN 1384-1130 ISBN 978-90-04-36779-1 (hardback) ISBN 978-90-04-36785-2 (e-book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. 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Contents Acknowledgements ix A Note on Transliteration xi Introduction 1 Muftis and Fatwas in Europe 3 Three Dimensions of Fatwa 7 A View of the Islamic Legal Tradition 11 The Law: Sharia and Fiqh 13 Islam, Women, Fatwas—and Gender 17 Research on Fatwas 21 History of the Project 24 The Data 26 History of the Data and My Experiences as a Researcher 30 The Structure of This Book 34 Part 1 Women, Fatwas, Actors 1 Continuity and Change: Fatwas and Fatwa-Giving on Women’s Issues in Historical Perspective 39 The Fatwa in Early Islamic History 39 The Fatwa Literature 41 Fatwas and Women-Related Questions 43 Women in Focus—a Twentieth-Century Trend 48 Muhammad Abduh as a Mufti 55 The Salafiyya Movement 57 Muhammad Rashid Rida 59 Rida’s References 60 Rida and Women’s Issues 61 Changing Views of the West 63 Muhammad al-Ghazali 65 Yusuf al-Qaradawi 70 Iftāʾ in Europe: The Concerns of the Mufti 78 Conclusion 82 vi contents 2 The Muftis and the Fatwa Institutions 84 Syed Mutawalli Darsh 84 The European Council for Fatwa and Research (ECFR) 88 Union des Organisations Islamiques de France (UOIF) and Dar al-Fatwa 101 Barkatullah Abdulkadir 122 Conclusion 123 Part 2 The Fatwas 3 Agony Uncle: The Fatwas of Syed Darsh 127 Introduction 127 Muslim Women’s Challenges as Revealed by the Questions 130 The Women in the Questions 133 The Fatwas 135 Within Marriage 139 Sexuality and Reproduction 142 Social Relationships 144 Bodily Care 147 ʿIbādāt 148 Characterizing the Fatwas 150 The Construction of Muslim Women 153 4 Women’s Issues and Collective Fatwas: The Case of the ECFR 156 Introduction 156 The Questions 160 The Women in the Questions 161 The Fatwas 162 Characterizing the Fatwas 183 View of Women and Gender Relations 185 Conclusion 189 5 Fatwa, Legitimacy, and Authority 190 Introduction 190 Concerning Haircuts 191 Women in Mosques 196 A qarār from the ECFR 201 Comparison of the Fatwas and the Resolution 204 contents vii Boundaries and the Borderless 206 Al-mustaftī and the Authority of the Fatwa 207 Conclusion 210 Part 3 The Muftis’ Reasoning in Local Context 6 Fatwas in Context: Muftis and Local Challenges 215 Introduction 215 Syed Darsh 216 Guardianship (wilāya) 218 Polygamy 221 The ECFR 224 Larabi Becheri 234 Barkatullah Abdulkadir and the Marriage Contract 243 Summary and Conclusions 256 7 Maqasid al-shariʿa and Modern Common Morality 260 Introduction 260 Maqāṣid al-sharīʿa 262 Modern Common Morality 266 Common Morality and the maqāṣid 268 8 Concluding Reflections 275 References 285 Index of Quranic Verses Cited 298 General Index 299 Acknowledgements I am grateful to everyone who has given me academic advice, made comments, and discussed the topic with me through the many years I was devoted to the research which resulted in this book. First of all, a warm thanks to my men- tors: Kari Vogt (University of Oslo) has followed my project from idea to book manuscript. I have benefited from her extensive knowledge and sober judg- ment, both in conversations and comments on texts. Jakob Skovgaard Petersen (University of Copenhagen) encouraged me to write, and gave me precise and helpful feedback on texts. Tore Lindholm (University of Oslo) introduced me to Tranøy’s theory of moden common morality, and supported me throughout the project. Many thanks to Alexandre Caeiro for sharing his reflections with me in fruit- ful conversations on our common field of research; to Ziba Mir-Hosseini for her encouragement, for shaping me intellectually, and for opening her house for me to stay during fieldwork in London; and to Muhammad Khalid Masud for his wise reflections on fatwa-giving and his interpretation of the objectives of Sharia, on which I draw in my discussion. Thanks also to numerous colleagues and friends whom I met during my fieldwork. And not least many thanks to the muftis and other actors in the field who, with their kindness and patience, made it possible to gather the material on which this book is based. A special thanks to Mohammed al-Mansoori for con- versations that opened my eyes to the world of muftis, and gave me a sense of its complexity. The project started in 2001 with the idea of looking at fatwas for women in Western Europe. Thanks to a Ph.D. grant from the research programme “Cul- tural Complexity in the multicultural Norway” (Culcom), led by Thomas Hyl- land Eriksen at the University of Oslo, I was able to be a full-time research fellow from 2006 to 2010. Hylland Eriksen poured from his cornucopia of knowledge and inspired me with his ability to see opportunities and spread enthusiasm. He and the other research fellows made Culcom a special place. The Norwegian Center for Human Rights at the University of Oslo provided me with office space and facilities, as well as financial support for translating the amended manuscript for publication. Thanks to Martha Herkenhoff, who provided excellent library services with unforgettable grace and kindness. Jørgen Nielsen (then at the University of Copenhagen) was in my Ph.D com- mittee and encouraged me to publish the dissertation as a book. Many thanks to the anonymous reviewer at Brill Publishers, whose com- ments helped me to improve the manuscript and turn a thesis into a book. x acknowledgements A big thanks to Christian Moe. He translated the manuscript, and has com- mented throughout the process. His kind, but critical questions have helped me immensely to formulate my ideas in a way that communicates with a reader. The manuscript would not have reached publication without his support and patience. A warm thanks to my husband Basim Ghozlan. Not only has he been at hand to discuss the meanings of Arabic words and sentences, he has also patiently tolerated hearing about new discoveries, enthusiasms and frustrations—and put up with the egoism that may be necessary for completing an academic work, included spending part of our vacations working on the text. I want to share the joy of having this book published with my children Mounir, Karim and Dina. They have often made it clear that they are proud of my academic achievements, even when the topic is far outside their field of interest. Last, but not least: I am solely responsible for the text. All errors and weak- nesses are my own. A Note on Transliteration Transliteration of Arabic words in this book follows the example of the Inter- national Journal of Middle East Studies, with diacritics indicating long vowels (ā, ī, ū) and emphatic consonants (ḍ, ḥ, ṣ, ṭ, ẓ), half circles for ayn and hamza, and commonly used English digraphs. A simplified transliteration without dia- critics is used for names, and words such as mufti, fatwa, Sharia and Quran are treated as common English words. Please note that quotations will differ, as the source transliteration has been preserved. Introduction “I urge you women to revolt!” said the late Dr. Zaki Badawi, head of the Muslim College and the Muslim Sharia Court, during a conference lecture in 2000.1 The suggestion was very well received by the women, but it caused much consternation among the men in the audience. Those who clearly did not accept this challenge argued that it clashed with the Islamic feminine ideal of the good wife and mother. Furthermore, a woman’s place was in the home. When all was said and done, a revolt would be a threat to the family. Some of the women in the room strongly objected that the traditional feminine ideal did not accord with the lived reality of Muslim women in Europe, particularly the fact that many women worked a “double shift,” and that their jobs outside the home were poorly paid.