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Adjusting Islamic Law to Migration Caeiro, A Adjusting Islamic Law to Migration Caeiro, A. Citation Caeiro, A. (2003). Adjusting Islamic Law to Migration. Isim Newsletter, 12(1), 26-27. Retrieved from https://hdl.handle.net/1887/16847 Version: Not Applicable (or Unknown) License: Leiden University Non-exclusive license Downloaded https://hdl.handle.net/1887/16847 from: Note: To cite this publication please use the final published version (if applicable). Law & Society Adjusting Islamic Law to Migration ALEXANDRECAEIRO Modern migratory movements within The European Council for Fatwa and Research ECFR religions often raise hopes of a brighter (ECFR), created in 1997, is one of the most The European Council for Fatwa and future. Intellectuals in new diasporas remarkable initiatives in the developing field Research (ECFR), created in London in like to attribute to themselves the of jurisprudence for Muslim minorities living in 1997 to fill up the authority gap in the heroic mission of reforming their reli- the West. Unlike the Fiqh Council of North West, is an example of an institution gion and the world. When Judaism set- America, established a few years earlier, the that presents itself not as a ‘competitor tled in America in the mid-nineteenth ECFR includes scholars from the Middle East, or alternative to the established coun- century, the emerging Reform move- a sign that this particular legal discourse also cils of jurisprudence in the Islamic ment, initiated in Germany, was at its affects believers in Muslim majority countries. world’, but rather as a complement, apogee. Leaders accordingly hoped Many of the issues at hand go beyond the state aiming to ‘contribute to a reflection on that the new context would liberate of post-migration. Consequently, the ECFR has the fiqh of minorities’.6 Members define Jews from ‘the literal and metaphorical to find a balance amongst a variety of views the fiqh of minorities as twofold: a re- ghettos’ of Europe.1 In European Islam, and expectations in Europe and beyond. actualization of old juridical opinions this has been the case too. Very often, (selective ijtihad) and the resolution of the continent is seen as fertile ground for the conceptualization of a the new problems arising from modern societies (new ijtihad). In prac- new ijtihad. In France, in particular, the theme ‘France, une chance de tice, however, the ECFR undermines the authority of muftis in the Mus- l’islam’ dominates the public debate, but the idea finds many echoes in lim world bygiving differentanswers to oldqueries. The thirty member- other countries as well. strong Council issues rulings to questions that are characterized by Soheib Bencheikh, the ‘mufti of Marseilles’, Dalil Boubakeur, rector of eclecticism (talfiq), necessity (darura), and facility (taysir). Five years the Mosquée de Paris and now president of the newly established Con- after its foundation, if the ECFR is still struggling to establish itself as an seil français du culte musulman, and more recently Tariq Ramadan all authority in Europe, it has succeeded in attracting much criticism from share the claim that the Islamic Reform will be thought out here in Eu- the Muslim world. The fatwa issued in 1999 allowing mortgages in cer- rope first and transposed to tain conditions provoked fervent reactions throughout the Muslim the Muslim world later. In world. Though not new, based on classical sources, and even conserva- Britain, the chairman of the tive in regards to some previous rulings,7 the institutional framework Sharia College, Zaki Badawi, provided by the ECFR disseminated the fatwa and weakened the inter- thinks the same. For some, diction stated by numerous imams throughout Europe and supported this new ground offers an by prominent ulema abroad. The ruling issued concerned exclusively excellent opportunity to rid the West, but the rationalization of the idea that economic need ren- Islam of its juridical slant, ders licit previously forbidden practices became very controversial and to free it from its old within Muslim communities, and the hint that bank interest was not a and inadequate reflexes. For form of usury (riba), discussed in the sessions (though finally dropped others, it is an opportunity from the text of the fatwa), raised concerns. to develop a new Islamic ju- In 2001, another question raised in Europe gave the Council further risprudence, purified from world notoriety. In a typical procedure for a Western Muslim, a married centuries of corruption and woman in Ireland who had just converted to Islam went from one mufti traditions.2 to another asking about the status of her marriage (to a non-Muslim), Embodied in the ideology not understanding why this was problematic with respect to Islamic of the Muslim Brotherhood, law. The question arrived at the doorstep of the Council, which after in- which sees Islamic law as tense debate issued a ruling giving the woman the choice to remain evolving, the elaboration of married or to divorce.8 Importantly, according to the members, this de- a jurisprudence of minori- cision was madepossible by European 'urf: since husbands respect their ties (fiqh al-aqalliyyat) un- wives in the West, and since women have inalienable rights in these derscores one such tenden- countries, they can remain married to a non-Muslim. In the internal dis- cy. Promoted by authorita- cussions it was also argued that, since the Prophet himself did not re- tive figures such as Taha J. marry his Companions following their conversion, marriage in Islam is Alwani,3 president of the not a religious but a civil contract. The implications of this judgment are Fiqh Council of North Amer- wide, but in the aftermath of the uproar that followed, notably from al- Tenth session of the European Council for Fatwa and ica, and Yusuf Qaradawi,4 Azhar, theCouncil tried to minimize them. In public,all the members re- Research, Dublin, January 2003. this fiqh is nevertheless con- main adamant against the possibility of a marriage between a Muslim troversial even among the woman and a non-Muslim man, and deny any possible repercussions ulema. For Said Ramadan al- for the Muslim world.9 Bouti, it is an effort to split the community, and create fitna.5 According It seems thus that the ECFR is playing a greater role in Islamic ju- to the members of Hizb-ut-Tahrir, it is an undisguised attempt to risprudential debates. In a globalized world, the members are deeply change the basics of Islam. Despite repeated claims by Qaradawi that it aware of the media impact of a fatwa, and very explicitly take it into is ‘just another branch’, there are signs that this new jurisprudence consideration.1 0 The relations with the other, older councils of fiqh in may yet have an impact far beyond the minority populations. Strug- Egypt and Saudi Arabia, mindfully established by the Council from the gling to integrate the Europeancontext into Islamic normativity, schol- start, are already under strain.1 1 According to one member, the Council ars engaged in this reflection are forced to search for the elusive dis- is now receiving questions from the Muslim world and, along with that, tinction between tradition and religion, and risk in turn further desta- warnings against issuing fatwas towards the East. In the composition bilizing the edifice of Islamic fiqh, already under pressure in the Muslim of the ECFR itself, the pressure of the Islamic heartland is making an im- world. pact: the number of scholars from the Muslim world, initially conceived 2 6 ISIM NEWSLETTER 1 2 /JUNE 2 0 0 3 O r g a n i z a t i o n s as temporary, then limited by the constitution to one-fourth and later N o t e s that were against, like the Council’s vice increased to one-third of the total number, is now about to reach 50 1 . The influential Rabbi Isaac Mayer Wise went president, Faysal Mawlawi, claimed that these per cent: in a deal to appease the muftis of the Muslim countries who a s far as writing a new prayer book, M i n h a g opinions have never been followed by had been left out, the leadership of the ECFR has pursued Ð not with- A m e r i c a, aiming to reconcile the diverse t h e f u q a h a. out some internal opposition Ð a policy of inclusion to reduce criticism European practices and to create a Judaism 9 . In an interview, Yusuf Qaradawi denied and give the Council weight, in particular in the Muslim world. For the ‘suited to the New World’. See Robinson, t h e possibility of this judgment being used in time being, this policy translates into conservatism in the fatwas, and Essential Judaism (New York: Pocket Books, 2000). t h e ‘completely different’ case of Nasr Abu Zaid, renders the ECFR somewhat ineffective in dealing with European is- 2 . For these two perspectives in dialogue, see divorced from his wife in 1996 after being sues. But led by conservative Muslim figures with credibility both in the L . Babès and T. Oubrou, Loi d’Allah, loi des accused of apostasy by the Egyptian Court of Muslim world and in Muslim communities in the West, the f i q h of mi- hommes: liberté, égalité et femmes en islam Cassation; a verdict upheld by the Court of norities could yet be an opportunity to free Islamic jurisprudence from ( P a r i s : Albin Michel, 2002). Appeals before a last-minute decision nullified some of the constraints of the East. This is, for some, its true meaning: 3 . Fiqh al-Aqalliyyat, Islamiyat al-m a ' r i f a h the decision. the f i q h of minorities, Alwani unashamedly concedes, is in fact a ‘polit- (Washington, Spring 2000).
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