Conference Report "Law, Islam and Anthropology"
The conference “Law, Islam and Anthropology”, 9–10 November 2018, organized jointly by the Department ‘Law & Anthropology’ of the Max Planck Institute for Social Anthropology (MPI), the Gesellschaft für Arabisches und Islamisches Recht (GAIR), and the Vereniging tot bestudering van het recht van de Islam en het Midden Oosten (RIMO).
The Conference entitled “Law, Islam and Anthropology” which was held on 9-10 November 2018 under the joint aegis of the Department ‘Law & Anthropology’ of the MPI, GAIR, and RIMO, aimed to bring together academics and practitioners from the disciplines of law, anthropology, and Islamic studies to collaboratively explore the implications and possible trajectories of the conjoined study of the three intersecting fields. The papers presented at the conference addressed ethnographic observations and methodological and epistemological aspects of normativity ascribed to Islam and Islamic contexts. The topics discussed varied in range and included both traditional and novel approaches, from the regulation of family relations and commercial transactions to the ethics of daily life. Questions such as actor-driven social distinctions and cross-societal processes of interpreting and applying Islamic law and tradition were emphasized. The diverse perspectives represented at the conference were intended to help identify the manifold perceptions of cross-disciplinarity within the fields at hand, and enrich their understanding.
The conference was opened by Marie-Claire Foblets (director of MPI). Foblets started with a welcoming address and a presentation of the history and aims of the Department ‘Law & Anthropology’. Foblets introduced the genesis of the event as arising from a long-standing collaboration between academics engaged with law and Islam, and the initiative to engage legal practitioners in a dialogue on issues relevant to law and Islam, and invited everyone to help take responsibility as academics for the important topics under discussion at the event.
Susan Rutten (Maastricht University) took the floor next to introduce RIMO. She welcomed this new instance cooperation between GAIR, RIMO, and the MPI and expressed her hopes that the conference would be only the first of many regular meetings. Rutten observed with regret that many highly qualified researchers are leaving this area of study because of its politicized connotation, and that this expertise may now be lost, exactly when the practice needs more knowledge about law and Islam. The activities of RIMO focus on a wider audience and have direct connection to law. RIMO hosts an annual conference in Leiden, and the materials presented there are published in the Nomos series by Brill. RIMO also offers an electronic database of judicial decisions in Dutch language, in which Islam plays a role in a number of different ways, and runs a writing competition for students on the subjects of Islam and law, and law of the Middle East.
Hatem Elliesie (MPI) Vice-Chairperson of GAIR and editor-in-chief of the Zeitschrift für Recht & Islam, then made a brief introduction of GAIR, and talked about GAIR’s annual conferences and meetings among working groups, as well as its current plans to establish a new group, the Junges Netzwerk ‘Recht und Islam’. Elliesie expressed the hope that this attempt to bring junior practitioners and scholars together would help fulfil the idea behind GAIR’s existence – to bridge disciplinary boundaries.
The first panel, chaired by Yafa Shanneik (University of Birmingham), dealt with the topic of auto-ethnography and ethics in the field. Annelies Moors (University of Amsterdam) presented her paper Anthropologists in the Field of Islam: An Auto-Ethnographic Note on Ethics, Integrity and Academic Freedom. The paper comprised an auto-ethnographic piece on the importance of analyzing unexpected experiences that can arise during fieldwork. She shared a story from her own practice. The case concerned a small exploratory publication in an anthropological journal about a research project focused on Dutch-speaking women travelling to ǧihādī territories. The article was noticed and sensationalized by a national daily newspaper and caused an outcry in the media that resulted in a parliamentary inquiry and an external reflection audit. The public concern appeared to be centred on the lack of transparency on the part of the researchers with respect to the women informants. With the presentation of the case, Moors analysed the ways in which the ethical requirements of transparency that bind ethnographers affected by the widespread audit culture, and also pointed out the dangers faced by Muslim researchers within a climate of ethno-nationalism. She called for a need to relate anthropological ethics to epistemological concerns, and expressed the view that the shifting of attention to political values can be problematic for academic freedom.
In the discussion following Moors’ paper, participants noted parallels with journalists and their equivalent responsibility to protect their own informants, but also the different status of information in anthropological research, where the focus is not on the identity of the interlocutors but on what they can teach the researchers. Another difference in the ethical codes of the two fields is that journalists have the right to protect the identities of their sources at least to some degree, while anthropologists do not. Another commentator pointed out that it is the researcher who bears the burden of credibility, and that transparency is not a helpful category in this situation, because the plausibility of information gathered is entirely dependent on the credibility of the researcher as eyewitness. Moors took the opportunity to address again the safety of junior researchers and referred back to the case that she described in her talk, pointing out that the journalists intended to publish the home address of one of the researchers on the project, a young Muslim female academic. While she was being persecuted by the media, she also faced negative responses from senior academics, who attempted to distance themselves from her.
In the second panel, chaired by Vishal Vora (MPI), Iris Sportel (Radboud University Nijmegen) and Ashrad Muradin (University of Leiden) presented their papers. Sportel’s paper on Muslim Family Law Across Borders – Law in the Everyday Life of Transnational Families presented a multi-sited study of divorce among Dutch-Moroccan and Dutch-Egyptian families, which explored how Muslim family laws travel across borders and how people interact with different family law systems. She introduced the topic with a story about a Moroccan woman who married a man in Morocco and immigrated to the Netherlands, where they eventually sought a divorce. The dispute between the two concerned the application of divorce law to their case – the woman claimed that Dutch law should apply, as it provided for the equal division of assets, and the man maintained that Moroccan law was applicable because they were married in that country, and under that law, in his opinion, his interests were better protected. Sportel has conducted research in three different countries, and the study revealed a number of problematic issues for marriage and divorce across borders, including the different documents required by various jurisdictions, the translation of these documents, the legal validity of marriage and divorce across borders, and cultural considerations. She then explored the ways in which cases of transnational or migrant couples are approached, the practical concerns involved, and how these cases can be handled by the authorities within a framework of culturally sensitive alternative dispute-resolution systems. In conclusion, Sportel pointed out that there are many reasons for people’s varying approaches to dealing with law, and it is not constructive to assume that human conduct is always based on religion or culture. However, this should not mean that there must not be any space for culture and religion. In the ensuing discussion, Sportel expressed the view that people are strongly shaped by their experiences with legal systems, and that, at the same time, people from different legal and cultural backgrounds can have similar experiences. She suggested that rather than focusing on the question of sharing the same values, it is important to take a step back and see what people want and need from the law, before looking for solutions.
The presentation by Ashrad Muradin (Univrsity of Leiden) was entitled Informal Family Dispute Resolution Among Dutch-Moroccan Muslims: Recent Debates and Developments. His research builds on existing work regarding what legal solutions for marital disputes are available to Moroccan women in the Netherlands. It aimed to bridge a gap in these studies by exploring the ways in which the practices of mediation in marital disputes by Muslim experts within the community are used not as an alternative to the legal venues of adjudication, but as a meaningful path towards creating and terminating relationships in line with faith and cultural values. Muradin’s research found that Muslim communities favoured seeking advice and support in their immediate circle, and when looking for solutions they frequently approach religious experts for assistance. From a religious point of view, amicable resolution is considered preferable, since Muslims share a religious obligation to end hostilities and choose peaceful reconciliation. The study revealed the high importance that these Muslims attached in practice to maintaining contact with their own moral system, and their inclination to reject ‘Western liberal values’. Among the difficulties encountered during the study were issues of trust and reluctance to talk about a sensitive subject, because marital problems are considered a topic not fit for open discussion outside the immediate family. Other difficulties were presented by considerations of privacy of the members of the studied community and how to balance this with neutrality and transparency. The study revealed an ‘evolution’ of the role of the Imams – while they do not typically engage in the resolution of marital problems, some Imams in the Netherlands have responded to the growing demand for their mediation services and are starting to introduce documentary requirements before a querent can qualify for advice, such as bank statements and evidence of address. At the same time, the study noted the emerging phenomenon of specialists who are competing with the Imams in providing those services – they are trained in Dutch law, and they are building a practice of cultural and religious reconciliation. Muradin also pointed out the central significance of the concept of trust, the meaning of which varies between the Muslim communities in Europe, and between Muslims and non-Muslims.
In the third panel, chaired by Björn Bentlage (Martin Luther University Halle-Wittenberg), Bertram Turner (MPI) delivered a paper entitled Anthropology of Code Switching: Navigating Religion and Normativity in Rural Morocco. Turner’s work in Morocco concerned the preoccupation of the residents of a village with the ‘proper’ resolution of conflicts according to their perceptions of proper Islamic existence. For that purpose, they employed a variety of strategies, including code switching. Code switching, a term originating in linguistics, which signifies the use of more than one language within one’s interactions, was employed in this study to mean switching between different legal registers, and allowed people to pick and choose among various venues and strategies for dealing with conflicts. Turner used ethnographic vignettes to illustrate the practices of code switching, and also idiom shopping, employed by the villagers in their search for the best ways of handling their legal affairs, while navigating their way through external codes such as transnational legal templates. Techniques for containing conflict and for living in the right way, including what Turner called ‘coercive harmony’ and ‘low level violence’, were discussed and analysed, as well as the relationship and language used in the villagers’ communication with the ‘law merchants’, such as state officials, development agents and representatives of religious congregations.
The conference programme continued with the presentation of the Festschrift on the occasion of Hans-Georg Ebert’s 65th birthday. In the honorary address, Hatem Elliesie thanked Ebert for his tireless work and guidance during his chairmanship of GAIR (2009–2015). Following this ceremony, Peter Scholz (Freie Universität Berlin / Amtsgericht Charlottenburg), the chairperson of GAIR’s board of trustees, presented the Association’s dissertation award to the prize-winner Serdar Kurnaz (University of Hamburg). Kurnaz then presented his work in a paper on The Theory of Bayan and its Relation to the Methods of Deriving Norms (istinbāṭ al-aḥkām) from Qur’an and Sunna in Islamic Legal Thinking. He explained one of the earliest methodological problems in Islam’s evolution, which has been the question of how to discover the meaning of the authoritative texts – the Qur’an and the Sunna. This problem led to the development of the system of bayān, a collection of utterances from the awgiverabout what is permissible and what is forbidden. By studying the system of bayān in the period between the fourth and the tenth centuries Serdar Kurnaz investigated the implicit meanings and the process of deriving norms of behaviour, as well as their epistemological preconditions. His research explored the question of whether the system of bayān provides access to valid rules, or whether instead it is the scholars who created the rules.
In the fourth panel, chaired by Kai Kreutzberger (Auswärtiges Amt / German Foreign Office in Berlin), Martin Bünning (Ashurst LLP, Frankfurt) gave a talk on The Sachsen-Anhalt Ṣukūk and Real Estate Acquisitions of ‘Islamic’ Investors. He discussed the unprecedented introduction in 2004 of a debt instrument compliant with Islamic principles in the German Federal State of Saxony-Anhalt. The instrument is called the Saxony-Anhalt Ṣukūk and it is designed for investors from the Middle East and the Gulf region. Sponsored by a US-based bank and endorsed by a šarīʿa board, this financial instrument was conceived as a tool to fill a gap in the existing legal and tax regime with a view to the growing interest of Middle-Eastern investors in the real estate market of Germany.
On the fifth panel, moderated by Federica Sona (MPI), Baudouin Dupret (Centre National de la Recherche Scientifique, Paris/ Université Catholique de Louvain) opened the second day with a paper entitled Filling Gaps in Legislation: The Use of Fikh by Contemporary Courts (Morocco, Egypt, and Indonesia) which addressed the methods used by contemporary judges in three different countries to issue decisions on family law cases, and explored how these methods have fundamentally altered the nature of legal cognition and of law itself. Muslim countries today use codified family laws. However, does this mean that these are codified versions of classic Islamic law? Dupret argued that judges in Morocco, Egypt, and Indonesia had to find ways to fill in what the lawyers call ‘silences of the law’ in order to close the gaps left by legislators. To achieve this goal, traditional Islamic legal references are ‘swallowed and digested’ and understood in a positivistic legal mode. The paper explored judicial interpretative work and judicial discretion as vehicles for managing gaps in the law. The way the judges think about the law reflects the patterns of codified state law, and consequently, new interpretative techniques and modes of reasoning are devised, such as the principle of iǧtihād, to handle fiqh references. Judicial training and technology make it possible to introduce the right formula in the form of templates. While judges previously used unofficial codification of ḥanafī fiqh to substantiate their arguments, they now employ the more efficient and flexible formula of templates. The development of these new techniques led to the digitalization of judicial work and the harmonization of judicial resources. Does it mean that this is not Islamic law? asked Dupret in conclusion. Islamic law is not what scholars decide that it should be, but what judicial actors do with it. So much of legal modernity is about routine and bureaucracy, and that fact defines the law that is practised. Consequently, rather than asking if this is an instance of Islamic law, it is better to ask what the actors think, and how they do it.
The paper discussions continued with Dörthe Engelcke (Max Planck Institute for Comparative and International Private Law, Hamburg) on Adjudicating Christian Family Law in Jordan: Legal Borrowing Across Religious Lines? Addressing the question of what shapes adjudication and legal decision-making, Engelcke began her exploration of the systems of Christian family law that exist in Muslim countries. Various Christian communities operate their own courts and apply their own family laws. Based on extensive fieldwork conducted in Jordan in September 2016 and between March and May 2018, Engelcke presented her findings on how minority legal culture, here the Greek Orthodox court, is shaped in settings of legal pluralism. Her study showed that Christian family law is created in much the same way as Muslim family law. Judges in the Greek Orthodox court have used many provisions that exist in Muslim family law, albeit without making any reference to Islamic law. For instance, the father is considered the walī (guardian) of his children and enjoys certain prerogatives. Christian courts, like šarīʿa courts, also enforce such provisions as bait at-ṭāʿa (house of obedience) and can prevent wives from travelling under certain circumstances. Christian courts also refer to qiyās (legal analogy) and claim that they are engaging in iǧtihād (independent reasoning). However, there are also a number of differences: Marriage is considered a sacrament in Christian doctrine and obtaining a divorce is therefore considerably more difficult than in the šarīʿa courts. In conclusion, the paper showed that the Greek Orthodox court in Jordan should be understood as firmly rooted in the local legal culture rather than as a completely separate system.
The sixth panel chaired by Jörn Thielmann (Friedrich-Alexander University Erlangen-Nürnberg) opened with a paper by Reik Kirchhof (Berlin) on Disintegration Within Integration – The Impossibility of Islamic Law: Realigning Field Observations of Islamic Normativity With New Theoretical Concepts of Normative Orders and Law. Kirchhof discussed the theoretical foundations of the empirical study of Islam and the (im)possibility of Islamic law as a research object. His work was informed by the notion that the genesis of Islamic law and its significance for social coherence remain largely unaddressed. He maintained that Islamic normativity is shaped by both Muslim and non-Muslim actors who call upon Islamic texts as applicable for establishing the legality or illegality of certain social actions. He suggested that šarīʿa did not exist as such at the time of the Prophet, but that it was implemented later on by Muslim scholars. The Prophet did not apply any legal sources according to God’s expectations. In Kirchhof’s view, šarīʿa fails to meet the legal demands of Muslims, especially in the modern era. He proposed the concept of legal normative orders in order to understand the social normative constellations in which Muslims are involved throughout history. Kirchhof concluded by proposing that one has to look at institutions that deal with instances where expectations have not been met: whose expectations we are talking about – God’s expectations towards humans, or humans’ expectations towards themselves and others? What is the quality of these expectations? We cannot ask Him, or observe whether He is disappointed. But what Muslims think about the quality of their expectations, this we can observe – are they being fulfilled or not, and how are disappointments dealt with?
Dominik Müller (MPI) ended the second day’s paper discussions with a presentation of the DFG Emmy Noether Research Group ‘The Bureaucratization of Islam and its Socio-Legal Dimensions in Southeast Asia’, which was established at the MPI in 2016. The research group, which consists of four doctoral students and himself, investigates the bureaucratization of Islam from an anthropological perspective in five Asian countries (Brunei, Indonesia, Malaysia, the Philippines, and Singapore), with a particular focus on the state’s attempted exercise of ‘classificatory power’ and its workings on the micro-level. Müller's project is a comparative anthropological study of the bureaucratization of Islam as a social phenomenon and its role in the state’s exercise of classificatory power, which is co-produced and contested in each society in contrasting ways. He argued that despite the different national histories, discursive contexts, and local power-knowledge regimes, in each of these countries state actors try to inform (and in some cases outright prescribe) the direction of Islamic discourses in their territories, and engage in politically desirable Islamic meaning-making. To illustrate ‘family resemblances’ and differences of bureaucratized Islam in Southeast Asia, Müller gave empirical examples from his ethnographic work among Islamic institutions in Brunei and Singapore.
The conference concluded with a closed session between the Director of the MPI, GAIR, and RIMO to discuss their first collaborative event, and future projects.