Law’s Making, Unmaking, and Remaking of Religion? Middle Eastern and Comparative Perspectives

Essaouira, Morocco | 17-19 October 2023

About Conference

 

Has the 19th century seen the consolidation of a new legal paradigm in the Global North and its expansion in the Global South? Legal positivism had long been in the making, and some draw its conceptual roots all the way back to Thomas Hobbes or John Locke, but it is with Jeremy Bentham and John Austin in the Anglo-Saxon context and later Hans Kelsen in the European continental context that legal positivism has been theorised in its current form. Quite attached to the notion of autonomy of the legal system, legal positivism adopts a definition of law that heavily centres around the state and is anchored in the constitution for its ultimate justification. As such, legal positivism relegates other forms of normativity outside the confines of (state) law.

This shift in legal paradigms has been described as a ‘great divide’—with all the profoundimplications of Michel Foucault’s use of the concept—between an old and a new legal order(Dupret & Halpérin 2022). Yet, as momentous as this paradigm shift may have been, it did notalways eliminate or replace existing structures, practices and hermeneutic traditions; sometimes,it transformed them and sometimes it amalgamated with them. After nearly two centuries of on-going transformations, the conference intends to revisit some of the debates that accompaniedthe establishment of the new order, and in particular analyse not only the impact it had and is stillhaving, but also the multi-faceted encounter between positivist and non-positivist normativities.Specifically, the conference will focus on how positive law and state law have shaped andtransformed the religious domain(s) in Muslim-majority contexts, where legal positivism not onlyintersected with colonial exploitation but also worked as a social engineering tool in the hands oflocal elites.

The conference aims at questioning, testing, and assessing the effects of legal positivism –from the ‘invention of Islamic law’ all the way to the development of a new vocabulary forgovernance; from the regulation of religious authorities all the way to the shaping of inter-confessional relations; from the shaping of religious imaginary, all the way to crafting of newadjudication practices. Participants at the conference will thus aim to interrogate the various formsin which legal positivism has shaped and is shaping religion in the broad region that stretches fromNorth Africa to South-East Asia, from the Balkans and Central Asia to East Africa. The focus onMuslim-majority countries comes, however, with a desire for comparison with similar experiencesin other contexts.

 

The conference will consist of six panels:

(1) Defining; (2) Reforming; (3) Regulating; (4) Imagining; (5) Commodifying & Objectifying ; (6) Adjudicating;

 

Panel 1: Defining

The new legal order centred around the state has engaged and keeps engaging with a complex process of boundary demarcation between its ‘law’ and other normative orders. Is religion merely a passive object in this operation? Given the close connection between law and language, this panel also intends to explore how ‘defining’ operates in a very visible way on the level of vocabulary. How was a new vocabulary articulated? And how does it relate to existing vocabularies of other normative orders? Does the appropriation and dislocation of these competing vocabularies generate tension in the public sphere?

 

Religion, the Policy State, and the University

Nathan Brown, The Georges Washington University, United States.  

Understanding the intersection, definition, and separation of law and religion in the modern era generally draws attention to the state as the agent or site of change—or both.  As agent, the state is generally viewed as a collection of senior state officials or as a set of structures of discipline. Both operate through law and imposition. As site, the state consists of courts and a few other structures (such as schools). 

A more global view is needed in which the rise of the policy state is examined itself, with great attention not only to the commonalities (mass education, law codes, demarcation of religion as a clear field) but also to the variations in the way states, law, and religion were structured—variations that can hardly be subsumed by the term “nation state” or explained as diffusion from or imposition by Europe.  The rise of policy states can be taken for granted, personalized, or almost anthropomorphized in a manner that misses this variation, especially in the field of religion.  Policy states are that operate through multiple, overlapping, and far depersonalized structures, each with a direct contact with individual inhabitants. They are marked by a series of common activities, many of them so mundane as to be overlooked in their cumulative significance: issuing individual identification cards, regulating electrical wiring, requiring food expiration dates, and monitoring all retail transactions.

In this paper I will explore focus on one specific realm--higher education, probing how universities arose along with a policy state and its need for trained professionals in the newly demarcated field of “religion;” for standardization in curriculum and credentialing within the territory controlled by a state but which varied in fundamental ways from one state to the next with that variation anchored firmly in institutional developments and decisions made as the policy state was built.

 

Deconstructing the effects of legal positivism on biblical law

Jonathan Patrick Burnside, University of Bristol Law School, United Kingdom

Legal positivism has had profound effects not only on the “invention of Islamic law” but also on the invention of biblical law. Positivistic ideas are frequently projected onto biblical law by popular writers, legal philosophers and biblical scholars. These have had predictably distorting results. The time is therefore ripe to deconstruct the influence of legal positivism on biblical law. Although there is some justification for seeing aspects of the Giving of the Law at Sinai in positivist-friendly terms, it remains the case that narrative accounts of this event present a challenge to legal positivism. By exploring the modalities of law-giving at Sinai we can see afresh that biblical law is not only an icon of revealed law, it is also an icon of concealed law. Redefining biblical law as a normative order means giving full weight to the ways in which biblical law understands and presents itself in terms of wisdom. Semantic, linguistic, cognitive, and semiotic studies point towards the need for a paradigm shift away from an exclusively positivist perspective and towards one which sees biblical law as complementary to the Wisdom tradition. This is crucial to re-evaluating the concepts of Wisdom and Law as they are deemed to apply in this religious context.

 

A Matter of Principles: Mabādiʾ al-Šarīʿa Between Universal Necessity and National Contingency

Roberta Aluffi, Università degli Studi di Torino, Italy.

In the process of defining a new national legal vocabulary, the boundaries between state law and šarīʿa can at times be crossed. This was precisely the case with the term mabādī'. The word entered the vocabulary of Arab jurists during the 19th century, under the European influence, but it was not until the mid-20th century that it was used with reference to šarīʿa. Mabādī' al-šarīʿa made their first appearance in the Egyptian Civil Code of 1948. This daring neologism was a paradoxical twist of the European historical understanding of legal principles as a rational, and not divine, foundation of the law. At the same time, it could not sound convincing to many Arabs jurists at the time. Even afterwards, despite evoking a supposedly universally shared šarcī core, it failed to spread evenly throughout the Arabic-speaking world. However, the expression has also experienced some remarkable successes: when judicial and scholarly interpretations consistently layer on a legal text, they may eventually transform apparently meaningless expressions into powerful tools of the national legal discourse.  

 

Just Religious Status: Pursuing Equivalence not Equality in Legal Claims to Recognition

Mona Oraby, Howard University, United States.

Although an interdisciplinary scholarship has argued that state regulation of social difference diminishes religious flourishing, claims to recognition lodged by minority religious communities remain an ongoing global phenomenon. This paper revisits the case of Bahá’í recognition in Egypt to provide new answers to the questions: Why is the state’s authority to decide what is religion/religious desirable among populations seemingly marginalized by the state? What explains this counterintuitive desire for state recognition? I argue that shifting attention from the fact of state regulation to the motivation for state regulation allows new explanations to come more fully into view. The paper uncovers why marginalized communities would seek recognition of their difference and reinforce Muslim majoritarianism—that is, pursue equivalence with other non-Muslim groups not equality with Muslims—rather than advocate for indifference to religious difference. I argue that fidelity to bureaucratic and adjudicative institutions can be explained by the degree to which these institutions commemorate a truth or truths deemed central to communal coherence. My argument is based in an analysis of over fifty years of administrative judicial trends, theological discourse, minority claims-making practices, and documentary evidence specific to modern and contemporary Egypt but also a broader, global history of civil administration and adjudication.

 

Panel 2: Reforming

Recent decades have witnessed many designated efforts to reform religious family laws in both Muslim majority states and Muslim minority states. These efforts – which enjoyed varying degrees of success – exerted far-reaching effects on Muslim, Jewish, Christian and Druze religious laws. The panel will aim to lay the ground for a comparative and informed discussion of reforms in religious family laws. It will seek to shed light on similarities and differences between various cases of such reforms, and to develop a theoretical and analytical framework for studying them.

 

Reform Ottoman Style: The Transformation of the Sharia Courts and Lawin the Long Nineteenth Century

Iris Agmon, Ben Gurion University of the Negev, Israel.

Practically, reform was the Ottoman Empire’s middle name. It was very much part of the Ottoman political culture throughout the empire’s long history, although the specific circumstances that shaped these reforms were substantially different in each period. Nevertheless, while historians frequently focus on questions about the origins of particular reforms, or the influences that shaped them, the Ottoman tradition of change per se has attracted insufficient attention. This is particularly the case in discussions among social scientists and scholars of contemporary law. Given the longevity of Ottoman rule over various regions in Europe, Asia, and Africa, and its rich heritage, it is sometimes hard to believe that the Ottoman Empire ceased to exist only one century ago. 

Keeping this claim in mind, I will focus in this paper on the transformation of the Ottoman sharia courts in the long nineteenth century. I argue that the common description of the Ottoman judicial reform as a matter of establishing a modern state judicial system while leaving the sharia courts to continue operating as "religious courts," is a projection of the contemporary legal systems on past developments. I further claim that for the Ottoman reformers, the sharia courts were from the outset THE state court system, and they continued to envision it as such. Hence, there is no historical sense in repeating the argument that the Sharia represented a divine law. In the Ottoman legal discourse, the sharia courts were not perceived “religious” courts. The Ottoman reformers continued until the very end of empire to consider the sharia courts as Ottoman state courts. In my talk, I will demonstrate this point by discussing the Ottoman administrative plans for employing the Family Code of 1917.

 

Legitimizing Assisted Reproduction by fatwas: the role of Shiite Grand Ayatollahs in Legal Reform in Iran

Nadjma Yassari, Max Planck Institute for Comparative and International Private Law, Germany

I am working very broadly on the impact of modern technologies, in this case ART (Assisted Reproduction Technologies) on the concept of the family and how social practice related to parenthood is affected. I focus on Iran and how – for lack of state legislation ¬– the Shiite clergy (or parts of them) have joined forces with physicians and medical centres to facilitate certain medical fertility procedures by issuance of fatwas. By their endorsement of all forms of assisted reproduction technology Shiite Grand ayatollah (marja-e taqlid) have given ART legitimacy in Iran but also produced a legal grey area – outside state control - in which the legal consequences of ART are being negotiated constantly. The paper speaks to the area of legal reform without the state and how religious, legal and medical issues of ART are dealt with by the religious establishment today in Iran.

 

The Sharia Court of Appeals 1994-2023: The transformation of the discourse from the ‘perfect Sharia’ to fiqh al aqliat

Moussa Abou Ramadan, Université de Strasbourg, France.

In the 1990s, the role of the Sharia Court of Appeals increased as it challenged the Israeli state and its judicial and legal system, aiming to represent the Muslims of Israel. However, we have observed a transformation in this discourse since 2014, with changes in personnel. The initiator of this discourse, Qadi Ahmad Natour, stepped down, and President Daoud Zayni and later Abdil Hakim Samara took over. In the post-Natour period, the dominant figure became Iyad Zahalka, a judge at the Sharia Court of Appeals and the director of Sharia courts, which is an administrative position granting him extensive powers to influence the system. These changes in personnel have had an impact on various aspects, but in this presentation, I will focus on one aspect: the relationship with Israeli law.

We argue in our presentation that there has been a transformation in the discourse of the Sharia Court of Appeals, shifting from a discourse that defies state law and advocates for a conception of a "perfect and complete Sharia" to a discourse that incorporates a Sharia of minorities, recognizing the need for adaptation and thus the absence of universalism and perfection.

 

Awaiting the Palestinian Family Code: Drafts, Debates, and Developments

Irene Schneider, Georg-August-Universität Göttingen, Germany

The conference's question about "legal positivism" is, in my view, a central one. On the one hand - but I will only touch on this briefly - legal positivism plays a special role in Germany in connection with the National Socialist era; on the other hand, the term is strongly associated in research with Islamic law in its modern form, for example, when it is argued that judges in today's Muslim countries must refer or apply to positive laws in the administration of justice. A "dilution of fiqh-referred Islamic law" is noted, which leads to the "positivization of Islamic normativity" (Buskens/Dupret 2020:10). This raises several questions that I want to address in my lecture: Can/should one apply such a concept, which has been coined by or in European legal history, to developments in Islamic law in modern times? Furthermore, it would have to be examined on the substantive level to what extent such a "dilution" applies. For in addition to the realm of applicable laws that the judge must apply, there is, for example, another important realm, that of debates about legislation and its reforms, which I have examined in detail in my book “Debating the Law - Creating Gender; Sharia and Lawmaking in Palestine, 2012-2018” (2021). I would therefore like to discuss these two issues in my presentation, using Palestine as an example, and I look forward to a joint discussion.

 

Is the 2022 Saudi Personal Status Code Revolutionary?

Nathalie Bernard-Maugiron, Centre Population et Développement (CEPED), Institut de recherche pour le développement (IRD), Université Paris-Cité, France

On March 8, 2022, International Women's Day, Saudi Arabia adopted its first personal status code (nizam al-ahwal al-shakhsiyya), becoming the last country in the Arab world to codify its family law. This nizam codifies the rules regarding marriage and its effects, dissolution of the marriage and its effects, as well as successions and wills. Crown Prince Muhammad bin Salman stressed that “the introduction of the personal status law reflects the leadership’s commitment to reform, especially since this law constitutes a qualitative leap in efforts to protect human rights, preserve family stability and empower women.as a means of improving the status of the family and limiting the discretionary power of the judge”, but Amnesty International and Human Rights Watch consider that the code “enshrines male guardianship” and “ discriminates against women in marriage, divorce, and custody”.

On the basis of the analysis of the provisions of the code dealing with marriage and its dissolution, and its comparison with other codifications of religious family law for Muslims adopted in the Arab Peninsula and in other Arab countries, this contribution will examine the scope and meaning of this codification with regard to the status of women and to the evolution of the relations between religion and politics in Saudi Arabia in recent years.

 

 

Panel 3: Regulating

State law - with its positivist logic and designated regulatory agencies - aims to regulate social and economic life, that is, to establish rights, duties and relationships among individuals and social groups. How have the regulatory powers of state law affected and transformed confessional communities and confessional laws? How has state law affected institutional arrangements in the domain of religion, and how has it shaped confessional identities and perceptions? This panel invites papers addressing these questions from a variety of perspectives, in an attempt to frame a methodical and theoretically-informed discussion of this understudied topic.

 

Kanun, Shari‘a and Defter: A Study in Ottoman Constitutional Thought

Guy Burak,  New York University, United States.

An intriguing triangle appears in several sixteenth-century Ottoman sources: kanun, shari‘a and defter (imperial registers). Very few studies in modern historiography have treated this triangle holistically. The paper seeks to do precisely that. It argues that these are key elements of what may be considered Ottoman constitutional thought in the sixteenth century and in later centuries. It also suggests that both shari‘a and defter in this Ottoman triangle were constituted by kanun, the Ottomans' dynastic law. Finally, the paper suggests that this triangle has a longer history well beyond the Ottoman domains. 

 

How do European Judges imagine religious law, and, more specifically, Islamic Law

Louis-Léon Christians, Université Catholique de Louvain, Belgium.

The progressive withdrawal of private international law as a channel for the reception of Islamic normativities confronts European courts with new perceptions of these normativities, such as those related to individual freedom of religion, the autonomy of cults, contract law or freedom of expression. After examining these developments, the focus will be on new paradoxes occuring today in the way European courts analyze religion in its individual dimension. Religious norms that are invoked are surprisingly dreaded by their capacity for almost magical self-realization. Religious normativity is somehow magnified in its mysterious capacity for omnipotence, which is why it must remain subject to significant limitations on public freedoms.

 

 

The Byzantine Family Code in Focus: An Imprint of Roman, Christian, and Islamic legal concepts?

Dörthe Engelcke, Max Plank Institute for International and Private Law, Germany.

Christian legal autonomy in family matters is a wide-spread phenomenon. However, what kind of law is the law these communities apply? Can we talk about Christian family law as we talk about Islamic family law or is the term the family laws applied by Christian communities more appropriate? There are three possible angles from which one could answer these questions: (1) self-identification and external recognition (2) the institutional framework (3) the sources on which the law is based on. This paper focused on the third angle. What intellectual traditions do the family laws of Christian communities draw on? To what extent are those Christian sources; and to what extent have these laws incorporated other legal traditions? This paper focuses on the Byzantine Family Code, which the Greek Orthodox community in the Greek Orthodox Patriarchate of Jerusalem applies. As a first step, I translated the Byzantine Family Code from Arabic to German and use a hermeneutical approach to access the text. I pay attention to the structure, themes, terminology, the overall vision of the text, and the gender relations the text incorporates. I demonstrate that the law is, unsurprisingly, rooted in Byzantine legal history, incorporating Roman legal sources, Islamic as well as Christian legal concepts. As a second step, I focus on the application of the law in the Greek Orthodox courts. Judgements, documents produced by the court, as well as the thinking of church court judges demonstrate the impact of the Jordanian Islamic personal status law on both legal concepts as well as terminology.

 

Reassessing Customs: Changing Images and Evaluations of Customary and Islamic Law in Contemporary Morocco

Léon Buskens, Leiden University, Netherlands.

[TBD]

Panel 4: Imagining

In keeping with Antonio Gramsci’s observation that domination is not just attained by force but mostly through compliance, the panel intends to explore the working of cultural hegemony in the domain of law and religion, and in particular how law can structure the imaginary of religion. Does religion, in turn, affect the imaginary of law? Acknowledging the prominent contribution of cinema and television drama to popular culture, the panel zooms in onto the religious imaginary which films and television drama both draw from and contribute to. Complex systems of authorisations and censorship regulations limit what can be shown on screens, and so affect the ways in which the religious imaginary is constituted.

 

The Message of the Imam

Jakob Skovgaard-Petersen, University of Copenhagen, Denmark.

Approximately 100 TV-dramas are annually produced for Ramadan in the Arab World. Of these, typically one or two are historical dramas about religious figures. In 2023 there was just one, “The Message of the Imam” about M. ibn Idris al-Shafii (767-820), one of the founders of the schools of Islamic jurisprudence. Produced in Egypt by the Syrian director Laith Hajjo, the drama caused quite a stir, for several reasons. This paper analyses the contents of this drama and situates it in the broader religio-political context of intra-Sunni rivalry over Islamism and the role of fiqh in modern life.

 

 

“Fatherland, Religion, Family”: The Depiction of Clergymen in Greek Theatre and  Cinema Under Strict Political and Moral Censorship (1936-1974)

Aristides N. Hatzis, National & Kapodistrian University of Athens, Greece.

From 1936 to 1974, Greece experienced a rise in political authoritarianism and legal moralism. This period was marked by two dictatorship regimes (1936-1941, 1967-1974), Nazi occupation (1941-1944), a devastating civil war (1944-1949), and an illiberal democracy (1949-1967). During this period, right-wing ideology was widespread, as evidenced by the motto "Fatherland, Religion (referring to Eastern Orthodox Christianity), and Family" adopted by government officials and politicians. This motto was identified as the official ideology of public education. Religion was heavily protected and shielded from criticism, with anti-clerical views being frequently persecuted. We will analyze various instances in Greek theater and cinema of the time, incorporating references to literature, to investigate how the religious imagination was shaped in Greece by both censorship laws and the actions of censors.

 

 

The Representation of Religion in Turkish Films and TV Series: Re-Building the National Identity

Valentina Scotti, European Law and Governance School, Italy.

Since its establishment, the Republic of Turkey has enshrined in its constitutional documents founding principles such as secularism and nationalism. Nevertheless, the approach to religion defined by the Kemalist elite has been constantly challenged by religiously-inspired political parties, the most successful of them is the current ruling party, the AKP. Under the AKP, the role of religion in the public sphere is importantly changed and so is the representation of religion on screen. In addition, the AKP has consistently supported the cinema sector favoring a portrayal of Islam as one of the main components of national identity. The present contribution is divided into three parts. Part I deals with the evolution of the regulatory framework concerning movies and series making, especially analyzing the norms approved under the AKP. Part II focuses on the way religion is represented through examples from the most renowned movies and TV series. Part III provided some concluding remarks on how the revised representation of religion has impinged on the Kemalist identity the positive law established for the country.

 

 

Mawga ḥārra [A Heatwave]: Sex Work, Morality, and Crime in Contemporary Egypt

Heba Khalil, Nebraska Wesleyan University, United States.

 

A pimp, a police officer, and a sheikh find themselves in a dangerous triangle of politics, religion, neoliberalism, morality, and crime. The police officer is tasked with exposing the pimp, and bringing him to justice, the pimp is taunting the police officer with family secrets to keep him away from his trafficking operation, and the sheikh is a fundamentalist televangelist unknowingly involved in sex trafficking. While a corrupt and brutal state and criminal justice system is permeating the lives of the three, it is the Sufi mother of the officer, also sister in-law of the sheikh, and family neighbor of the pimp, who navigates these complexities and untangles the definitions of criminality, justice, forgiveness, and honor. Mawga ḥārra is a 2013 television drama by Mohamed Yassin and Mariam Naoom, based on a 2000 novel by Osama Anwar Okasha. The series is created during a revolutionary time and radically depicts youth mobilization, street protests, police brutality, business corruption, and a disappointment with religious leaders, but not with Islam itself. The series pours the spirit of the 2011 uprisings into the novel but maintains its critical stance on religion’s role in criminalizing or protecting sexuality. The sheikh’s religious views and condemnations are presented in stark difference to the Sufi mother’s religious opinions and actions. The Islamic representation by the popular televangelist is misogynistic, corrupt, and merciless, it is economically rewarding and resides in rich suburbs. The Sufi mother’s Islam resides in downtown Cairo, in a lower middle-class neighborhood, and is voiced by the mother in her appeals to saints, and advice to neighbors and family, and by 20 th -century Egyptian Sufi chanters like Al-Naqshabandi. The two parallel Islams form the field of public contestation, where the criminalization of sexuality is questioned, and the morality of sex workers is upheld vis-à-vis that of brutal police officers.

 

Panel 5: COMMODIFIYING & objectifying

Within a capitalism-driven global economy, religious norms and principles transformed into economic and financial stakes, and accompanied the creation, development, marketing, and merchandising of new or rebranded products. The halal economy provides the best example of this commodification of religion. This emerging economy requires legal rules and normative standards to operate, that is, enforceable principles that guarantee the homogeneity and predictability of the market activities and the resolution of eventual conflicts. The panel invites papers addressing the positivist legal and normative framing of religious economy.

 

Commodifying Halal in Indonesia

Ayang Utriza Yakin, Sciences Po Bordeaux, France

The process of commodifying Islam began in Indonesia in the 1990s. It took off in the 2000s through many ‘cultural’ actors and stakeholders, driven and dominated by the MUI’s halal movement. It is characteristic of the different ways in which the relationship between Islam and the market is configured and reconfigured, adjusted and readjusted. This is a manifestation of the “marketization” of religion, in a “Global-Market regime” marked by neo-liberalism and consumerism. Islamic norms and ethics have taken on a particular dimension, orchestrated by the state who used legal engineering, such as the Halal Assurance Product Law no. 33/2014. The presentation will focus on state law-making in Indonesia’s religious economy through the case of halal. It attempts to demonstrate how the state uses the law to commodify halal and, through this, drives the religious, cultural, and economic aspects of Muslims' lives. These halal-commodified products are profit-driven, exploiting the rise of a new Islamic economic paradigm (Shirazi, 2016). It will also show how state regulation affects the discrimination, marginalization, and subordination of non-Muslims. The presentation will proceed in four steps. First, the historical development of halal regulation and management in 1975-2014 under the monopoly of the Council of Indonesian Ulama (Majelis Ulama Indonesia, MUI). Second, the enactment of the Halal Assurance Product Law no. 33/2014, the Indonesian Government Regulation no. 31/2019 on the Halal Product Assurance, the Indonesian Ministry of Religious Affairs Regulation no. 26/2019 on the Organization of Halal Product Assurance, the Decree of Indonesian Ministry of Religious Affairs no. 1360/2021 on the Exempted Ingredients from the Obligation of Halal Certification, and the Decree of Indonesian Ministry of Religious Affairs no. 297 tahun 2023 on the Fatwa Committee of Halal Product. Third, case studies on food and beverages, health care, and tourism. Finally, I will argue that the commodification of halal, which involves legislating and formalizing the Islamic normativity, reveals that Islam has undergone a process of positivization (Dupret, 2021): that of the scientizing, standardizing, and normalizing of halal. 

Accommodations of Islamic norms in economical field? A comparative study in North African and European countries.

Bochra Kammarti,  Cespra École des Hautes Études en Sciences Sociales, France.

From both fieldwork, a doctoral thesis on Islamic finance in Europe and a postdoctoral research on the controversies around the legalization of Islamic economical practices as waqf, zakat and Islamic finance in North Africa after 2011, this paper compares the conflict of norms/normativity and the accommodations (or not) operated in one hand to integrate practices issued from Islamic economy in the national laws, and on the other hand how religious and economic actors accommodate the Islamic practices to the legal context in North Africa and Europe. 

How positive laws consider/host Islamic economical structures (sharia boards, waqfs, zakat funds, etc.) or Islamic contracts (mourabaha, sukuk, ijara, etc.)? And how economic actors, like sharia boards or public institutions, negotiate and accommodate their practices that conciliate Islamic norms to positive law? The study of fatawas show a plurality of point of view and interpretation. The plasticity of Islamic norms and practices is explained because they are formulated in relationship to the social, political, juridic, religious and cultural context of enunciation.

But another observation is interesting in both areas regarding norms issued from Islamic economy : first, in one hand Muslims and non-Muslims actors try to introduce Islamic practices in the positive national law that is supposed in most of cases “secular” built in (post)colonization context in opposition to the local (religious or not) system of norms; in another hand we observe a standardization of Islamic norms by religious authorities through the halal certification to make the product licit from the religious point of view but also legal from the national law point of view. Both trends contribute to what Baudouin Dupret calls the posivitization of Islamic norms (Dupret, 2021).

 

Family Affairs in Algeria : How do Religious Norms Survive ?

Aziadé Zemirli, Institut de recherche pour le développement (IRD), Université Paris-Cité, France.

This paper seeks to examine the impact of religion or religious norms in the decisions of Algeria’s family judges.  Do judges take up religious issues in family cases brought before them? If so, could we speak about a constant jurisprudence? Do they do so in all the cases or do some cases lend themselves more to this than others ?  Do they tend to refer only to positive law or do they apply Article 222 of the Family Code, which states that if the law is silent, reference is made to the provisions of the sharia (ahkam al-shari’a al-islamiya) ?

I will try to answer those questions by analyzing some decisions collected during my thesis between 2015 and 2018. I will also consider court rulings published in a collection of Supreme Court decisions, some of the most recent ones published on the Supreme Court website, first instance decisions handed down by the Réseau Wassila, an association that helps women victims of domestic violence. I will also draw on two interviews, one with a legal expert from Réseau Wassila and on with a doctoral student working on “Family Matters before the Courts in Algeria: Ethnographic Studies”, as well as a number of academic articles. 

 

The Making of “German Islam” by Law: The Constitution, the Public Administration & Muslim Organisations

Jörn Thielmann, FAU Forschungszentrum für Islam und Recht in Europa (FAU EZIRE)

The law and its enactment (or non-enactment) has a decisive impact on Muslim lives in Germany. The constitutional regulations concerning religions in the Grundgesetz are setting the frame: there is no State Church and the State is religiously neutral, but willing to cooperate. Freedom of religion for individuals and collectives as well as the public exercise of religious duties is guaranteed. Before the law, all religions are equal and nobody should be discriminated against due to her religion (art. 3 no. 3 GG). So far, so good. However, only Muslims are concerned by laws addressing clothing of public servants. And until now, only the Ahmadiyya Muslim Jamaat, present since the 1950s, was granted the status as corporation under public law in 2013. All other Muslim organisations are still simply registered associations. Therefore, the constitutional right of religious instruction for Muslim children in public schools is but realised via small scale projects since more than 20 years. Instead, the Federal State and the Länder intervene and create by themselves Islamic religious bodies as interlocutors. The presentation will shortly retrace the legal frame and history, but focus mainly on the effects of German law and its (non-)enactment by public administrations on Muslim self-organisations, especially on theological positions and religio-legal authority.

 

 

 

 

 

Panel 6: ADJUDICATING

The juridical field has a constitutive capacity to shape and define other social fields. Employing this perspective for studying the domain of religion, how does law, as articulated by judicial practices, delineates and substantiate religion in the modern Middle east? How do judges define religion, characterize religious objects, make it something exceptional or on the contrary insert it within the routine accomplishment of their job. This panel groups papers documenting court cases translating religious phenomena into legal objects.

 

The Actual Role of Islamic law in the Egyptian Legal System

Karim El Chazli, Swiss Institute of Comparative Law, Switzerland.

Discussions about the role of Islamic law in the Egyptian legal system tend to focus on Article 2 of the Constitution, the relevant case law of the Supreme Constitutional Court and Article 1 of the Civil Code. Despite their undeniable importance from both theoretical and practical points of view, those provisions and rulings do not depict the various uses of Islamic law by Egyptian judges. To have a better understanding of these uses (and, thus, the actual role of Islamic law in the Egyptian legal system), a few recent cases in civil, criminal and administrative matters – where a reference to Islamic law was made – will be examined.

 

Adjudicating the Family in Egypt: Interpretive Practices of Positive Islamic Law

Monica Lindbekk, University of Bergen, Norway.

This paper aims to contribute to the scholarly literature on law in action and context by covering an area little addressed, namely religiously-inspired judicial activism in the field of Muslim family law. It is well established in socio-legal scholarship that courts play an important role in the development of law by interpreting and applying it. The semi-legislative function performed by courts acquires considerable importance in countries where the legislature and executive powers are unable, or unwilling, to reform the law, as is the case with Muslim personal status law in Egypt. There is a growing literature on the implementation of shari‘a-derived legislation in contemporary courts. To date, this field of study has paid little attention to the religious discourses of contemporary judges, especially judges on civil courts who are primarily trained in positive, codified law. In particular, little scholarly attention has been devoted to how contemporary judges use Islamic jurisprudence (fiqh) where there are silences in legislated law. This presentation focuses on the role of contemporary Egyptian family court judges in formulating and arguing for certain interpretations of Islamic law based on analysis of a specific legal genre, namely court judgments (aḥkām). In addition, the paper explores the influence of civil law training, time pressure and the introduction of computer technology on judicial practice. It looks further at how Egyptian family courts relate to what has been called the “invention of Islamic law,” i.e., the rephrasing of Islam-inspired normative systems through the prism and into the framework of modern legal positivism. The presentation draws upon rulings from five family courts, court observations, and interviews with family court judges and other legal professionals.    

Family, abortion, homosexuality: the judicial arena as a place of confrontation between Islam and secularism in Senegal 

Marième N’Diaye, Sciences Po Bordeaux, France

In Senegal, where morality is concerned, there is a strong discrepancy between, on the one hand, the prevalence of religious discourse in the public arena and, on the other hand, the marginalization of the Islamic norm in the law. This is particularly visible when it comes to all gender-related issues, and especially when they touch on the private and intimate domains. Indeed, societal debates on the family, abortion or homosexuality are highly controversial and systematically opposed by religious organizations who strive against any reform in favour of greater gender equality or recognition of the rights of sexual minorities. However, only family law explicitly refers to "Islamicized Wolof custom," and then only with respect to marriage and inheritance. No mention of the religious norm is made in the criminal law, including in the provisions condemning abortion and homosexuality. In this paper, we will look at the confrontation between religious society and secular law in the judicial arena. From a comparison between civil (family law) and criminal (abortion, homosexuality) jurisdictions, we will see that the way judges implement the law contributes to blurring the border between law, morality and religion in the name of preserving public order. Our presentation will be based on a corpus of rulings, interviews and observations made in Dakar courts (2007-2018). 

 

Islam and the Palestinian Authority

Emilio Dabed, York University, Canada. 

In the Palestine Basic Law (1997), references to Islam are made in three domains: Article 4-1 established Islam as the official religion in Palestine; Article 4-2 consecrated “the principles of Islamic Sharia” as “a main source of legislation”; and, finally, Article 101-1 established that Sharia affairs and personal status matters shall be decided by Sharia and religious courts in accordance with the law. Despite the potential importance of articles 4-1 and 101-1, this paper fundamentally looks at the impact of article 4-2 which declares the “principles of Sharia law” (rather than Sharia) to be “a main source of legislation”. Many feared that these norms would lead to an “islamization” of society, of the public institutions and the law. Yet, in this work I argue that the constitutional recognition of the principles of Sharia law, the approval of the law of the Palestinian Constitutional Court in 2006, and the limited constitutional jurisprudence generated until now have, rather, opened the door for a “statization” and “constitutionalisation” of Islamic law. This fundamentally implies a state control (through the Constitutional Court) of the identification and interpretation of the Sharia principles, and their application as a main source of the legislation. 

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