_full_alt_author_running_head (neem stramien B2 voor dit chapter en dubbelklik nul hierna en zet 2 auteursnamen neer op die plek met and): Jureidini & Hassan _full_articletitle_deel (kopregel rechts, vul hierna in): Kafala as Applied to Migrant Workers _full_article_language: en indien anders: engelse articletitle: 0 92 Jureidini & Hassan Chapter 6 The Islamic Principle of Kafala as Applied to Migrant Workers: Traditional Continuity and Reform Ray Jureidini and Said Fares Hassan 1 Introduction The paper is an attempt to identify the continuities and discontinuities be- tween the religious Islamic notion and practice of kafala (kafāla) and its con- temporary application—with specific reference to the Gulf States where it has been most prominently legislated and practiced. While much research has been undertaken, mostly critical of the kafala as a system of oppression and exploitation of migrant labour in the GCC, there seems to be a consensus that there is no relationship at all between the traditional Islamic concept of kafala and its current application. In other words, it is argued that there is no evi- dence of a “genealogy” that links the Islamic jurisprudence of kafala to its con- temporary forms (Franz 2011, 98). In a recent paper on the origins of the kafala related to migrant labour in the GCC, the historian, AlShehabi (2019), provides documentary evidence showing how the British colonial rulers, first in Bahrain and later other GCC states from the 1920s, introduced what was for them a system of sponsorship and surety, but which was perfectly compatible with and adaptable to the principles of kafala in Islamic law and custom. It was, he argues, a “cheap” means of control- ling foreigners and having local citizens take responsibility for them. Thus, there was no conscious decision on the part of the Muslim rulers of the region to apply the traditional form of kafala under new circumstances in the GCC that required massive numbers of foreign companies and workers. Rather, in this situation, the conflation of colonial rule and Islamic custom came togeth- er serendipitously. Notwithstanding this historical backdrop, we think it is worthwhile to attend to some of the nuances of the “old” kafala and the “new” kafala in order to see more precisely: 1) how it came about; 2) what are the similarities (apart from the name); 3) why the old kafala was modified into its present-day arrangements. It is argued that the modern Islamic state, through the right of the leader (waliy al-amr and his siyāsa sharʿiyya), has the right, the power and authority © Ray Jureidini and Said Fares Hassan, 2020 | doi:10.1163/9789004417342_007Ray Jureidini and Said Fares Hassan - 9789004417342 This is an open access chapter distributed under the terms of the CC-BY-NCDownloaded 4.0 License. from Brill.com10/02/2021 03:34:40PM via free access _full_alt_author_running_head (neem stramien B2 voor dit chapter en dubbelklik nul hierna en zet 2 auteursnamen neer op die plek met and): Jureidini & Hassan _full_articletitle_deel (kopregel rechts, vul hierna in): Kafala as Applied to Migrant Workers _full_article_language: en indien anders: engelse articletitle: 0 Kafala as Applied to Migrant Workers 93 to modify rules and regulations from traditional practices in accordance with the public interest (maṣlaḥa). This is a political dimension that has not been alluded to in previous accounts of the kafala as applied to contemporary man- agement of migration workers in the Middle East. There is a considerable de- gree of criticism of the contemporary use of kafala. One author, for example, considers contemporary practice of kafala as an “insult to Islam.” (Kakande 2015, 15). Others have equated kafala with “modern day slavery” (Chidiac 2014). It may be argued, however, that the contemporary problems of kafala are pri- marily because of the abuse of the principles rather than the principles them- selves. In this sense, is there a continuity of a normative set of social arrangements, but that the exploitative potential has overtaken the ethical guidelines of trust, care, responsibility and obligations in relation to the pres- ence and employment of foreigners? From the law and religious dicta through fatwas, we provide evidence of traditional ethical continuity, some traditional elements in the codified law, but non-compliance in contemporary practice— a perennial problem. 2 Similarities and Dissimilarities The term “kafāla” has a wide semantic scope in Arabic. Its root, kāf – fā⁠ʾ ف ”means to feed, support, vouch for or warrant; hence “kafala ,( ك��� � )ل lām – refers to bail, guaranty, security or sponsorship (Wehr 1994, 976). Accord- ing to Lane’s nineteenth century Arabic dictionary, kafala meant “respon- sibility; answerableness; amenability; or suretyship; the conjoining of responsibility to another” (Lane 1872, 3001). Likewise, the kafīl is “one who is responsible, answerable, amendable, or a sponsor or surety” (ibid.). In the Islamic tradition, Kafala is a significant concept that has its social, moral and business dimensions. In Islamic family law “kafala” re- fers to a formal agreement to provide temporary support for an orphaned child until adulthood. Such support does not confer inheritance rights and is best understood as a form of legal guardianship rather than adop- tion. (Franz 2014, 97) Businesswise, Muslim jurists extend the meaning of kafala to a business contract where someone formally guarantees somebody else in terms of delivering goods or carrying financial responsibilities (e.g., Ibn Rushd 1999, vol.1, 636-ff; Ibn ʿĀbdīn 2003, vol.7, 553-ff). More generally, kafala was intended to provide a framework of social solidarity based on trust and cooperation among people in various realms of their interactions. Ray Jureidini and Said Fares Hassan - 9789004417342 Downloaded from Brill.com10/02/2021 03:34:40PM via free access 94 Jureidini & Hassan Kafala thus originally refers to a contract where a guarantor conjoins a guaranteed person (makfūl) and assumes liability for that person in various specified terms. Kafala is meant to provide an assurance of the fulfillment of an obligation of the guaranteed person. This can be to guarantee the payment of the guaranteed person’s financial liability (kafala bi-al-māl) (as in a surety guaranteeing the repayment of a debt). It could also be to guarantee the pres- ence of a certain person at a specified time and place (kafala bi-al-nafs) or the appearance of a certain person, as in the case of a lawsuit (kafala bi-al-wajh) (as in guaranteeing bail money). It could be a guarantee for the delivery of goods (kafala bi-al-taslīm) or a guarantee for the purchase of goods sold (kafala bi-al-darak). In short, the guarantor assumes responsibility for a certain liabil- ity due by the guaranteed that will include the kafīl as a representative of the guaranteed (makfūl) in front of the state and other government institutions and take responsibly for any breach of the law perpetrated by the guaranteed (see Bālī 2013, vol.1, 970ff; Ibn ʿĀbdīn 2003, vol. 7, Chapter on Kafala). Thus, kafala contracts were used to protect the weak and vulnerable by in- stituting the patronage of a prominent local who provided whatever protec- tion was required—a form of community responsibility for financial, legal or political representation (Franz 2014, 99). These forms or applications of kafala can still function in contemporary times. However, while the Majella (Otto- man codified Shariʿa law) refers to kafala contracts of the various types men- tioned above, there is no mention of kafala in the enactment or employment of labour (ibid.). Similarly, there is no mention of kafala contracts in analyses of Ottoman slavery arrangements (ibid.), although similar practices with non- Muslim foreign labour were evident in the port of Istanbul from the late six- teenth century (see Kanchana 2018, 8). The earliest account of kafala in relation to labour in the Arabian Gulf seems to have been loose arrangements from the turn of the twentieth century to the 1940s (Longva 1997). Pearl divers, for example, were bound to a kafīl who owned the dhow boats that were used. This has been identified more as a “cul- tural legacy” (Hamza 2015: 94; Gardener 2010). As noted for Kuwait, there was no formal legal reference to kafala until the Aliens Residence Law in 1975, de- spite the requirements from the 1950s and 1960s that foreign businesses re- quired a local Kuwaiti partner with 51 percent ownership and that migrants should be “vouched for by a respected citizen of Kuwait” (Longva 1997: 78). As such, the similarity between the classical Islamic usage of kafala and the new form as applied to the management of foreign workers has been seen as a merely linguistic one that lends it a “veneer of legitimacy,” i.e. the presence of a kafīl as guarantor (now sponsor) who would guarantee the legal residency of Ray Jureidini and Said Fares Hassan - 9789004417342 Downloaded from Brill.com10/02/2021 03:34:40PM via free access Kafala as Applied to Migrant Workers 95 the foreigner who will abide by the rules of a contract and the laws of the country. As Franz observes, If the current use of the kafala system for migrant labour did descend from these earlier forms, it diverged dramatically in the context of nation states and neoliberal market forces and transformed into a system whereby non-nationals are bound to nationals for the purposes of work or business. (Franz 2014, 100) The most highly critiqued issues of the contemporary kafala have indeed centered around the power, control and exploitation of the kafīl over foreign employees as well as business establishments. The criticisms have primarily been based on international human and labour rights law and conventions (International Labour Organization 2013a; Kapiszewski 2001). On the other hand, investigating the technical usage and application of the classical Islamic kafala system, it is clear that an essential element of the clas- sical system is that kafala is considered a contract without benefits on the part of the guarantor.