ALTHOUGH SOME FRENCH MUSLIMS might carry on deliberations within a transnational Islamic realm of justification, they live in the political space of France. Indeed, many Muslims in France consider their social lives to be mainly governed by French norms, while others, doubtless a much smaller number, might see only Islamic rules as shaping their lives. For those in the middle, those who see both Islamic and French rules as relevant, either because they see them both as legitimate or because they see a practical reason to pay attention to both, life is a bit more complicated. How do they combine or accommodate or broker among these competing sets of norms?
I consider here the case of marriage and divorce, where French laws and Islamic norms set out quite distinct procedures. French law requires that a couple marry at city hall; marriages conducted by religious officials not only have no legal value but are technically illegal if conducted prior to the state wedding. This restriction was intended to emphasize the domination of the Republic over the Church and clearly states the French commitment to the priority of secular marriage and its absolute separation from religious rituals. Although originally passed with priests in mind, in 2008 it was used to levy penalties on two French imams. Religious officials do not have mandates to certify marriages legally, as they do in England and the United States. Divorce requires a civil judge, and may be initiated by either party.
Islam, for its part, focuses on the relationship between the bride and groom. Each must consent to the marriage, and he must give her a token of the marriage, a bridal gift or mahr. The function of the mahr varies widely from region to region: it may be merely symbolic (a Qur’an) or it may amount to a substantial sum intended to rest unpaid, giving the wife leverage in case of future disputes.1 In most Islamic legal traditions the bride must have a male guardian present who agrees to the marriage, and there must be witnesses. Although a religious official may recite verses and the event may take place in a religious setting, these features are not required. A husband may unilaterally divorce his wife by pronouncing the talaq formula; a wife may request that a religious judge dissolve the marriage following Islamic rules.
Although the basic Islamic rules may seem simple, young Muslims regularly ask local imams for clarification, and often discuss issues related to marriage and divorce on France-centered Islamic Internet sites. Let us follow one exchange of opinions that took place recently on a Web discussion forum. A young Muslim woman introduces herself to readers: she is French, living in Aubervilliers (north of Paris), and of Algerian origin, and anticipating her “religious marriage” in the coming months. She will wed an Algerian man at her mother’s home and, wishing to ensure that it conform to religious norms, poses a question on an Internet site about what she should expect.2
A French Muslim woman responds, describing her own marriage in Algeria two years earlier, at a time when she was sixteen. She had converted to Islam well before the marriage, in part because of her parents’ interest in the religion. She had met the man she would marry when he had visited from Algeria. She describes what she sees as the essence of the religious ceremony: the obligatory presence of her father and of witnesses, the gift from her husband (the mahr), and the blessings recited by the imam. She also explains that in Algeria the ceremony is called les fiançailles, the engagement, but that in fact it constitutes the Islamic marriage. A few days before writing her response on the internet, she and her husband had married at her local city hall in France. “I had wanted to marry [in civil fashion] right away but unfortunately a law was passed that forbid girls under 18 from marrying even with their father’s permission, especially when my husband lives in Algeria and it is difficult for him to come here. The only time he came to my house and the first time I saw him was when I was 15; of course I was not yet ready to marry but 9 months later I was!”3
On a different Web site another woman (a French convert) asks how to make sure that her marriage (to an Algerian man) will be halâl (permitted). She, too, receives an answer in the form of a personal narrative.4 Her respondent, a Belgian convert, had tried to marry at the local Islamic center, but the center had refused to marry the couple unless they first married according to Belgian civil law.5 “That’s entirely normal; it is to prevent abuses,” she comments. “Some people marry before God and then very quickly forget their promises after sharing their wife’s bed.” But they had wanted to marry religiously before marrying at city hall, and finally found an imam who would come to their house. The imam explained that her husband was required to give her a gift to make the marriage legal (she had wanted to forgo it), and she received enough “to buy two pairs of fantastic earrings that I wore at our civil ceremony as a symbol.” Although parents should give permission for a marriage, she explained, hers were not Muslim, “so the question never arose.” Apparently the imam did not raise the issue. They had two Muslim men as witnesses. “By following these steps you won’t have a marriage certificate but your union will be Halal.”
Others weighed in regarding both cases, giving their experiences and points of view. They all took as a valid premise that marrying in a religious or “halâl” manner was the important thing to do, and that making it official in the eyes of the state was of lesser importance. No one worried too much about the relationship between the two kinds of marriages. Some of the people who joined in on the first discussion did enter into a debate as to whether or not it was worthwhile to make the marriage official at all; several pointed out that you did need help from the French state from time to time and that having the marriage on one’s birth certificate helped in that regard, as a practical necessity. In the second discussion, the bride was proud to wear her earrings, the token of her halâl marriage, at the civil ceremony, as a sign, at least to herself, that she already had married in the only way that really mattered. (No one mentioned to her that the absence of a male guardian at her religious marriage could be seen to have invalidated it; that the imam approved of the marriage seems to have satisfied everyone.)
It may seem surprising that in these cases, young Muslims in France would seek advice on fairly complicated matters on Internet discussion forums. After all, a young Muslim living in Aubervilliers—the town of Dhaou Meskine’s Islamic day school—has access to the Islamic scholars, mosques, and institutes of higher learning found across the northern Parisian suburbs. The converts to Islam who took part in the exchanges may have been particularly eager to find authoritative responses to their concerns, as converts often are, but in fact they would have been more likely than others to have met regularly with a local imam as part of converting. The choice by these Muslims to seek advice on Internet forums should be seen in terms of the additional value they hoped to find there, rather than as stemming from an absence of information around them. Let me consider for a moment what the attraction of such sites might be.
These open Web forums differ from two other forms of Islamic electronic information that we could call the “electronic text” and the “question-and-answer site.” Some of the best-known Islamic Web sites feature articles by noted scholars we have already encountered in earlier chapters, such as al-Bûtî, al-Albâni, or al-Qaradâwî. These sites thus represent different ways to find the same information that one might otherwise find in a bookstore: one-way, authoritative treatises on various topics, sometimes with the advantage of availability in multiple languages. Other French-language Islamic sites are edited by Muslims probably unknown to most of those who happen on the site, but provide clear opinions on a wide range of important topics, from family life to work issues to matters of spirituality.6 These sites are, then, electronic versions of texts, differing little in form or content from paper versions.
Quite different in their forms are the Islamic sites based on the traditional format of questions and answers. Historically, a religious opinion or fatwa was generated in this way, as a response to a specific question put to a knowledgeable scholar. Some sites feature fatwa sections that are structured in this way, as internal components to broader sites. One of the best-known such sites is islamonline.com, with its links to the European Council for Fatwa and Research and to the Islamic Society of North America (ISNA). The site features an updated fatwa bank, and the ability to post questions and receive answers from recognized Islamic scholars.7
These two types of sites both frame what they do as providing definitive answers, sometimes from distant lands, to be accepted and applied. Many young Muslims look for horizontal forms of exchange rather than authoritative replies. They also might wish to explain their particular situation in detail and to have it taken into account, and to encourage others to ask relevant questions, something not possible on the other types of sites. Many Muslims in Europe have made shari
a into a set of individual commitments, and seek to compare opinions with others. The forums are well-suited to this sort of communication and knowledge seeking, and may be attractive for these reasons, even if the participants may not be well versed in religious matters.8
The exchange of opinions does not necessarily lead to greater clarity. What does it mean to say a marriage is halâl, as did the participants in the above exchanges? On the Internet and in everyday discussions in France it becomes clear that a grand confusion reigns. Is a marriage halâl if the couple follows the religious steps helpfully outlined by the respondents on the Internet sites mentioned above, regardless of whether they also marry at city hall? Or does the phrase “halâl marriage” indicate that the man and woman have made a binding promise before God and refuse to travel to city hall? Or does it mean the opposite: requiring that the couple marry in city hall, so that the state may ensure that both parties adhere to their promises? One finds all of these opinions prominently expressed.
Here transnational linguistic borrowings further cloud the question. In Algeria and Morocco, the French term fiançailles (engagement), with its sense of constituting a promise to wed, came to be used to refer to the Islamic marriage ritual, the nikah, with its witnesses, the consent of the bride’s father or other male guardian, and the marriage gift. That it did so was reasonable: in both a French engagement and an Islamic marriage, a promise is made between the two parties, usually with the approval of the parents. The celebration can come later. The North African usage has now been appropriated by couples living in France. For some of them, using these terms may indicate a belief that Islam countenances an engagement, that is, a relationship prior to marriage.9
Hence the question posed on another Internet discussion as to whether “halâl marriage” means the same as fiançailles as the term is used in Algeria.10 The respondents have different ideas on this question, but they all agree that the real marriage is the religious one, the halâl. As one person explains, “This halâl is quite simply the marriage before God, after which the couple may consummate the marriage, live together, and so forth, and afterwards if they wish they may carry out the civil marriage. But God considers breaking the halâl as a DIVORCE [caps in original].”11
Thinking that the Islamic marriage is akin to the French engagement provides a temporal schema for thinking about marriage in France. It suggests that one should first enter into a contract (halâl marriage for Muslims, fiançailles for others), and later on have the celebration at city hall, if one wishes to do so. In this way of looking at things, the Islamic marriage, the nikah, is assimilated not to the church wedding but to the initial act of commitment, as a private arrangement with no state-legal effects. As I mentioned above, this temporal ordering runs counter to the official French model, in which religious ceremonies should follow the civil marriage, but it makes sense if one reads French marriage practices through a North African lens.
The above respondent’s reference to divorce, and his apparent need to capitalize the word for emphasis, raises a question much discussed in France among Muslims: how do you break a halâl marriage if there was no written marriage contract or certificate? The issue is discussed because it is unclear what recourse is left to a wife whose “halâl husband” abandons her. Many Muslims are concerned about this problem. Although a Muslim husband may divorce his wife on his own, a Muslim wife has no corresponding way of ending the marriage by herself. In countries with Muslim judges, she may ask that the marriage be annulled or the husband be asked to grant a divorce, but France has neither Islamic judges nor Islamic arbitration panels.12
Both issues—how to divorce, and the weakness of the halâl bonds—arose in a long Web exchange entitled “Breaking the halâl [marriage],” in which a woman asked how she might divorce when she had married in halâl fashion but not with a civil ceremony.13 The respondents began to ask for details about her marriage, and troubling facts began to emerge. At her marriage, held in France, she saw no imams (though someone led prayers in an adjoining room); she had no male guardians; and there were no witnesses other than her husband’s family members. No marriage gift was exchanged (“but he paid for my dress and rings”); no piece of paper attests to the event.
The responders are nervous, pretty sure that the absence of a guardian and witnesses means she never had properly married even in Islamic terms, and, as she had consummated the marriage (they asked), they were pretty sure that she was not “dans les règles,” as they rather delicately put it. One suggested she find “the imam who celebrated the marriage,” although there appears to have been no such person; others offered solutions as to how to divorce. “Is it not the case that one or the other of you says three times ‘I divorce you’?” asked one reader. This is a group effort; everyone chipping in with their ideas. Several cited books of fiqh; others brought up the amount of the marriage gifts paid by the Prophet. Each drew from the exchange a bit more knowledge of Islamic norms, whether correct or not, thanks to the questioner’s unfortunate experience.
At this point someone introduced a discordant note, which moved the discussion off the topic of divorce and back to the issue of the halâl vis-à-vis city hall. “Let me remind participants who are unaware that for the marriage to be valid in Islam, you must have both the halâl and city hall (or a body representing the state). If one or the other is missing, then the marriage is invalid. Islam requires this to avoid the sort of unfortunate event our sister has undergone.” A lively debate commenced that left the poor woman’s problems behind and continued on for the rest of the day. One participant exclaimed that “city hall does not validate a marriage! . . . If for you, marrying in front of a guy in a bow tie with the red white and blue flag is more important than [marrying] before God, good for you! . . . [The official] does not believe in God and says Muhammad (peace be upon him) is an impostor, and it is his signature that will make my marriage halâl? . . . God says in the Qur’an: ‘wa kafa billahi shahida’ [and God is sufficient as a witness].”
Some agreed with this view, others argued that civil marriage would have kept the unfortunate young woman from falling into her predicament, because had she married at city hall she now would have a legal means to divorce. One respondent cited a scholar who often writes on the Web sites oumma.com and mejliss.com, Ahmed Elouazzani, to the effect that you must register the marriage with civil authorities to prevent certain young men from failing to fully enter into the obligations of marriage. References were made to other eminent legal scholars (al-Qaradâwî, Ibn Baz) without citations. The argument degenerated into name-calling. The woman who started it all interjected, “So, I’ve been had. . . .” No one responded; the debate had moved on.
The question of which norms young Muslims should follow when deciding to “marry” has been on the minds of many in France for some time, for reasons poignantly captured in the woman’s parting cry, “So, I’ve been had.” Most of the scholars engaged in teaching or preaching are barraged with questions by young Muslim women and men, and most of those questions are about marriage and divorce.
In chapter three we met Najjar Mondher, the imam of the main mosque in Lyon. “In my three years now in Lyon I have come to understand that many people want to marry ‘in halâl fashion,’ as they say, which means they do not go to city hall. They have the girl’s father or a representative, two witnesses, the couple, an imam, and a gift to symbolize the marriage. You know, an imam could be imprisoned for six months for marrying a couple first—but they do it anyway!“
Najjar was particularly adamant about refusing to carry out such marriages. “We refuse to marry someone without a civil marriage. It causes problems when they do this if the couple separates and the husband will not give the wife a divorce. She has nowhere to turn to divorce. [JB: Why do people want to marry this way?] One reason is that they want it to be religious only and don’t want to bother with the rest. But also often the man wants to be able to move on to a different woman later. [JB: So why does he not divorce her?] Well, sometimes to punish her. . . .”
Najjar added that the parents in the end acquiesce in these halâl marriages. “The parents might prefer that the couple marry at city hall, but they have no control over them if they are already twenty to twenty-five years old, so they say ‘at least marry halâl,’ and the couple usually agree to that.” Najjar also made more precise the reasons why no one could answer the question posed in the Web site discussion cited earlier, how do you break a halâl marriage if you live in France? If the wife wants to divorce, neither the state nor his office can help her. “The state does not recognize the marriage. I have nothing to recommend, because I am not a judge, so I cannot divorce a couple, apply a khula divorce with payment, which would be the wife’s right. I tell them that marriage is for life.” Najjar’s account is a pragmatic one: because France lacks the religious judicial institutions that could apply a religious divorce, a woman should ensure her future ability to free herself from an unsuccessful marriage by marrying in civil fashion. The state not only provides legal force to preserve the marriage, it also provides the mechanism to leave the marriage that, in other societies, might be provided by an Islamic judge.
But Najjar also brought up a reason why some parents, and some imams, recognize, if grudgingly, the value of the halâl-only marriage: at least it places the union in the religious domain. Such was Dhaou Meskine’s reasoning. In chapter three I reported that after the prayer service at his mosque in 2006, a man had asked Dhaou if he could marry a woman religiously without undergoing a civil ceremony, and Dhaou said categorically no, that he must not, because what if they were to divorce? “They want to do this because they do not want to have anything to do with the state,” he told me afterward. In June 2007 I spoke to his older students and their parents about religion and law. The issue of halâl marriage, or “Fatiha marriage” (so called because the Qur’anic verse al-Fatiha is recited at the wedding) came up. “It is a major problem,” said one woman. “In one case I know, the couple had a child, and the father refused to recognize it, and there was nothing the woman could do because they were not married.”
Given these remarks, I was surprised when, later on the same day, I asked Dhaou about the problem, and he said, “It is better that people marry young. You should not put too much pressure on the young or they will not follow the correct way. Many in France, Muslim or not, prefer not to marry, because it constrains you and requires that you do this or that, and many prefer just to live in concubinage: both parties have all the same rights that way. Sometimes they have the Fatiha marriage first; that provides a moral constraint, much better than not having that bond. [JB: So there is a good side to only marrying in the mosque?] Yes, it is better than without it.” He saw the increase in legal age of marriage, enacted several years ago, from sixteen to eighteen as “preventing Muslim girls from marrying young” and thus contributing to the rise in religious-only marriage—a view substantiated anecdotally by the Web discussion cited above.
Note that Dhaou’s approval of the halâl marriage without the civil marriage was only for those who had not reached eighteen. Furthermore, when I mentioned the fear that the woman would be endangered, he replied, “No, they can always register their concubinage.” Indeed, French law does allow for a couple to register their status of concubinage (roughly equivalent to an American common-law marriage) with a notary, but unless they enter into a civil union (a pacte civil de solidarité, PACS), they have difficulty making financial claims on each other if they subsequently decide to dissolve their union.14 The law has little to say about this situation (or about the private arrangements of couples in general).15 If a couple of any religion has a religious marriage without a civil marriage, then they are considered to be in concubinage; the religious marriage has no effect, positive or negative, on their legal status.16
The French criminal code (article 433-21) does penalize a minister who performs a religious marriage without the couple having previously married according to the law. Until 2008, the statute, originally aimed at Catholic priests trying to subvert the institutions of the Republic, had not been applied to imams. The incidence of halâl marriages became an issue in June 2007, when Le Monde published an article on the practice. The newspaper called these marriages “illegal,” and noted that no imams yet had been arrested, in part because it was difficult to inspect Islamic marriages because they may be celebrated in private.17 Someone reading the article, Muslim or not, might have concluded that all young people entering into a halâl marriage had been violating the law and risked six months’ imprisonment and and a fine of 7,500 euros.18 The article was probably motivated by a question posed to the Interior Ministry the previous February by a deputy, who, after claiming that “in most towns” few Muslims marry in civil fashion, urged the minister to remind imams of the law. Le Monde did not see fit to publish the response from the ministry, which argued that in Islam marriage is a civil contract, and that if an imam was present it was but “incidental, to deliver a short prayer.”19 If the ministry’s view is correct and an Islamic marriage is a civil contract, then it is difficult to see what distinguishes it in the eyes of the law from the celebration of a concubinage, or in what way it violates the law. What probably moved Le Monde to mention the problem was less the technical legal question but the worry that those who enter into Islamic marriages do so in order to remain outside the sphere of French society.
One year later, two courts did take action against imams for having illegally celebrated marriages. In June, the criminal court at Orléans sentenced an imam to pay 1,500 euros for having celebrated two marriages of couples not already married legally. The prosecutor may have decided to act because the couples wished to use the religious event to convince immigration authorities that their marriage was sincere and not merely a means to obtain residency papers.20 In October 2008, an imam at Meaux was placed under examination for a similar offense. Echoing the Internet exchanges we read above, he claimed to have merely “celebrated fiançailles” for the couples.21 He also was accused of embezzling funds, and was party to a dispute between two rival associations.
The French legal status of an Islamic marriage has yet to be settled, but in the space between Islamic and legal marriages, different actors in French public life, Muslims and non-Muslims will continue to construct various versions of how a French Muslim ought to marry. Marriage is not only a technical matter of registration and obligation but a symbol of social and moral order, or ordre public (a legal category to which I return below). The divergence or convergence of rules for marriage can be taken as indexing a divergence or convergence of broader moral worlds.
Indeed, on these and other issues, some Muslims in France and elsewhere in Europe have looked for points of encounter, resemblance, and convergence between Islamic norms and European ones. They criticize as too negative and narrow the Qaradâwî approach we considered in the last chapter—that you may neglect this or that Islamic rule because living in Europe is so difficult—and ask whether Islamic value can be accorded to features of French, and more broadly European, social life. Should Muslims consider certain French institutions to provide legitimate answers to problems of social life? Perhaps these institutions are moral and legal equivalents of Islamic institutions. Arguing in this way requires valuing the general meaning or intent of an Islamic rule over the social form historically realized in what are considered as “Muslim countries.”
Hichem El Arafa reasoned in this way to explain why Muslims should consider the civil marriage at city hall to be required on Islamic terms:
Some people think that having to go to city hall and fill out forms is too much work, and moreover they consider marriage to be a religious matter—and they do so all the more because some Islamic authorities say that marriage is religious. They say that the Prophet, in his time, did not have laws about registering marriage, so it is not necessary for Muslims to do so. But then you can say—and this may make you laugh, but there is something to it—that back then, the society was composed of tribes, and if someone married he never would just leave his spouse because his life would be in danger, everyone knew each other then, so there was no need for these regulations. But now it is different. That is reasoning according to the purposes [maqâsid] of Scripture.
Marrying in city hall is thus indicated by scripture, because scripture’s passages on marriage have as their purpose to make marriage a stable contract. Hichem has seen what happens when couples do not have that contract, and it has led him, like Najjar at Lyon, to refuse all requests to perform Islamic weddings at a mosque or elsewhere, unless the couple also marries at city hall. “I refuse, because if they only marry like that, they do not take it seriously. There are disagreeable things that happen as a result. In some cases the couple marries in Islamic fashion with an imam but soon after decide that they are incompatible and they divorce, also in Islamic fashion [with the husband repudiating his wife with a simple declaration, the talaq]. But if they had married first at city hall then their agreement [pacte] would have been stronger, as it should be in Islam, and they would have been more likely to stay together.”
Hichem thought that it would be possible to make the civil marriage perform the function of an Islamic marriage. “It ought to be easy to create an event that makes the state marriage also an Islamic one, for it contains almost all of the elements, lacking only the element that the family must agree to the marriage, so you could have witnesses to the civil marriage, and then the girl’s father would meet with the couple and the imam right after the marriage to announce that he agrees to it.” Civil divorce, however, poses greater hurdles; the long delays involved in obtaining a divorce lead many couples to become impatient and dispense with what they consider to be a legal formality, and simply have the husband pronounce the repudiation formula.
Hichem’s view of marriage highlights the objectives of scripture and the major elements of Islamic marriage (the contract, the witnesses) and strips away its inessential elements (that it takes place in a mosque, that some words are pronounced in Arabic). This approach does not convince everyone. “Sometimes shocking people can have its place, but here we have to make them understand. I can remember speaking to students about things and having them feel irritated at me. For example, I explained that marriage in Islam was not religious, that a civil marriage was sufficient, and they clearly did not like that. [JB: What did they say?] Some said, ‘well, there was no city hall in the Prophet’s time, so marrying at city hall is not in accord with Islam.’
“What we need,” he added in 2006,
is to have real statistical studies that count the number of marriages like this, and of them how many had problems and led to divorce, and then document the problems the people had. I hear many of these cases, terrible cases, but do not write them down. Then we need to develop arguments on the marriage that imams—I mean ones with education, not just people who happened to become imams [imams par circonstance]—can agree on, and then if they each start telling people they need to be married, not just practice customary marriage—because that is a better term than religious, it is not really religion, the nikah—then people might start to follow. But we should work within the tradition, take concepts, such as from Shâtibî, on maqâsid, and work from there to these cases. Here is what Shâtibî says: “If you practice something that is in the tradition and it has negative consequences, causes damages, then you need to rethink whether or not it is legal.” But then you have to reason about the particular case, not just cite the general principle, because if you do that some imams might say, “Well, maybe,” but they won’t change anything. Here is where the sociological study would come in, because then you could see that there are negative consequences, and be more likely to follow this reasoning. Reasoning this way is different from those outside the tradition who instrumentalize the concept of maqâsid.22
Indeed, Hichem ties the justification for innovation more explicitly to empirical facts: the more damaging the consequence of avoiding city hall, the more justified is proclaiming civil marriage to be Islamic in nature. Larbi Kechat was willing to go one step further:
I say that if you marry at the city hall, you have already made an Islamic marriage, because all the conditions for that marriage have been fulfilled: the consent of the two parties is required, and there are two witnesses, and they then can give a ring as the mahr—the mahr can be anything, the recitation of al-Fatiha, for example. The ceremony in the mosque is a benediction of the marriage. And also the marriage constrains the two people, so the husband cannot simply leave, and that meets an Islamic maqâsid, so registering the marriage with the state fulfills a maqâsid.
The Swiss scholar Tariq Ramadan takes a similar position. Ramadan finds al-Qaradâwî’s European Council to be unimaginative and trapped in an old style of fiqh, engaging in a juristic bricolage, as he put it, an effort to create a “fiqh lite” without rethinking it in European terms. Ramadan agrees with Meskine that fiqh should be universal, but he would locate the universal dimension at the level of general principles.23 On marriage, he urges Muslims to recognize that the nature of marriage is a contract. “A civil marriage already is a Muslim marriage, I think, because it is a contract, and that is what a Muslim marriage is.” More generally, the European law of contracts corresponds to the Islamic law of contracts, and Muslims are just as obliged to respect contracts with non-Muslims as with Muslims; “that is a universal element of fiqh, valid anywhere. If we take this step, then we can accept much of European law.”24
This line of reasoning thus begins with the claim that civil marriage fulfills (or easily could fulfill) the conditions for an Islamic marriage because both are, in essence, contracts. But one could accept this equivalence and still prefer to marry only Islamically. The argument in favor of civil marriage over Islam-only marriage must then rest on more than the equivalence of the two practices; in these arguments, it is the positive social consequences of civil marriage that provide its Islamic justification.
This kind of argument has been more fully developed by the director of the Bordeaux Mosque, Tareq Oubrou. Born in 1960 in Morocco, Oubrou, along with many prominent Muslim figures linked to religious concerns, first studied natural sciences—in his case, biology. Oubrou distinguishes between obligatory ritual (ibâdât) and social norms (mu
âmalât). The former does not change, but the latter may be realized either as law or as ethics, he claims, depending on the political context within which one lives. In a country with Islamic law and social institutions, social norms are realized as law. In countries such as France, where such realization is impossible, Muslims must “ethicize” these norms. He offered an example:
If a woman comes to me and says, “My husband beats me; do I have the right to ask for a divorce?” then I say: “Yes, divorce him; and when the judge pronounces the divorce you will be divorced, ethically speaking, religiously speaking.” So we “ethicize” the Islamic law on divorce: the same values, but we choose the idea from the legal tradition that is more subtle—in this case, for example from the Mâlikî, or another, whichever can best respond to the spirit of the shari’a and also to the society into which Muslims integrate sociologically and anthropologically in French citizenship.25
As with al-Qaradâwî and the European Council, Oubrou combines a selection of rulings from legal traditions with a use of the maqâsid. He also joins al-Qaradâwî in advocating a “sharia for minorities,” by which he means the conditions under which Muslims can exist in secularized France, Islam’s adaptation to France.26 Scholars are to provide fatwas that give concrete form to that adaptation, developing forms of sharia that fit France. Oubrou also argues for a specific methodology: first look to the norms of French culture and the requirements of French law, and then look for the Islamic legal options that offer the best fit with these parameters. In many cases it is the Hanafî or Mâlikî tradition that meets these conditions and the Hanbalî approach (followed in Saudi Arabia) that is the strictest, but Oubrou points out that sometimes this is not the case:
Sometimes there are zones in Hanbalî law that are more supple than in Hanafî or Mâlikî law, for example on polygamy. Mâlikî law says the husband has to receive the permission of the first wife [to take a second], but the Hanbalî position is by way of the needs of society [maslaha], that if the culture is monogamous, then so is the shari’a on this point. I always say, if the first wife accepts the second, then why should I interfere? We accept homosexuality, polyandry, why not a man and a woman? It is scandalous.
Oubrou’s argument on this point, couched in the somewhat free-flowing terms of our verbal exchange, makes explicit the socially pragmatic reasoning that, as we have seen, many scholars practice. He seeks to develop an Islamic normative base for a way of life that would be in accord with French social norms and French law. Thus, if the broad society is monogamous, then Islamic norms also must point toward monogamy as the appropriate marital form, and he selects those elements that lead to this conclusion. But he also insists that Islamic norms might on some counts improve on French ones. If French men can have mistresses as well as wives, as do many prominent public figures, then would it not be better to legalize these relationships by permitting polygamy?
Tareq Oubrou has pursued this same line of reasoning with regard to other questions of fitting Islamic norms to French conditions. Many Muslim living in France find it challenging to find trustworthy sources of halâl meat and to find properly sacrificed meat for the annual Feast of Sacrifice. For meat to be halâl, the animal must have been killed in the appropriate manner, with a swift cut to avoid suffering and a reciting of the Bismillah to emphasize that the life is taken in God’s name, and the carcass drained of blood and kept carefully separate from non-halâl foods. For meat to count as the sacrifice performed on the day commemorating Abraham’s willingness to sacrifice his son, the animal must be killed after the morning congregational prayer.
To find halâl food, you can look for labels in butcher shops or supermarkets indicating that an inspection service (such as the AVS, discussed in chapter four) guarantees the food’s provenance, but how do you know that the beef or chicken really was produced according to halâl specifications? Tareq Oubrou has argued that halâl is more a matter of trust in one’s butcher than in carefully verifying each step of the production process. In a widely cited 2000 article, he wrote that one should look to the objectives of the Qur’an: whether or not a Bismillah was pronounced at the moment does not affect the legal status of the meat purchased by a Muslim, he said. One should instead choose one’s butcher with his character in mind: does he pray and avoid telling lies?27 In any case one ought to realize that the Islamic rules were justified by their hygienic rationale: “Why does Islam refuse to eat meat that has not been cleansed of it blood? It is precisely because the blood contains unhealthy germs.”28 In conversations with me in late 2002 he expanded on his reasoning:
Halâl meat? That’s different; people confuse the ritual act that is Abraham’s sacrifice with an act that is not ritual, there is no “kosherizing” of killing the animal, it is not part of ritual [ibâdât]; it is part of ethics, of muâmalât, that the animal be healthy. So the question is how best to kill, and the best way is to cut the transmission between the neurons and the rest of the animal, by cutting the throat, and evacuating the blood immediately; this is the most humane way to kill the animal, as it causes it to lose all feeling, because the oxygen stops.
Secondly, letting out blood rids the animals of germs; I classify it in ethics and do not sacralize it; canonists do not require the pronouncement of the Bismillah at the moment of sacrifice. Of course, people will cite the Qur’an, but you must read the Qur’an; at the time, people sacrificed for idols, so as a reflex, the Qur’an asked them to do it in the name of God. The Prophet himself allowed Â’isha an exemption from this rule. She told him that people had brought them meat and she did not know whether or not they had said the Bismillah or not before killing it, and the Prophet said, you say it before eating. It’s really not the end of the world.
But it is sure that if the blood stays in the animal the animal remains forbidden in the ethical sense of the term but not in the ritual sense, because we are in a different register. Even Muslims have taken over categories from the West, because “the rite,” “the sacred,” did not exist in Arabic thought, the idea of purity and impurity—those are problems exported from a Judeo-Christian register.29
Of course, many Muslims object to this reasoning. The La Médina article prompted at least one reader to object that (in a letter published in the following issue), “to think in that way is to empty Islam of its meaning, to reduce it to its surface appearance, and to turn aside from the object of all Muslim acts, namely the adoration of God.”
Although he disagreed on other points with Tareq Oubrou, Tariq Ramadan has taken similar stands regarding halâl:
I think that the universal rules have to do with lessening the suffering of the animal, and not with technicalities about how the killing takes place. AVS takes a very strict position, for example forbidding electric stunning and requiring that a Muslim do the killing. That is alright because it means that everyone can agree with them, but only so long as they allow others to have their own positions. For example, in Switzerland we import meat and cannot enforce the same rules. Qaradâwî has said that all meat killed by ahlul kitab [“people of the book,” referring to Jews and Christians] is halâl. Saudi Arabia, after all, imports meat from Germany.30
In chapter two we discussed the logistical difficulties of getting meat to Muslims who wish to celebrate the Feast of Sacrifice. If one wishes to celebrate the feast day on the day of the congregational prayer, then the sacrifice must take place in the very narrow window between the morning prayer and dinner. For years, municipal authorities and mosque officials have tried various solutions; the difficulties have led many Muslims to reevaluate the importance of the sacrifice. In 2003, Hichem El Arafa told me that he had not sacrificed for several years:
For one thing the children do not like meat very much. One year we had a lot of meat left over and put in the freezer and it stayed there a year and we had to throw it out. There are two main reasons for the Îd [the feast]. One is to bring the children around you and kill the animal and put away meat to eat, dry it in the sun and it lasts a while. The second is to distribute it to others, especially to people who need it. But here we have enough meat anyway, and it is not clear to whom one could give it. Oh, sometimes I ask among the family to see if there is a relative in Tunisia who needs it, and then I send enough to buy a sheep, about 100 euros now. That makes more sense because they need it.
Increasingly there are calls to think of the Îd as a time to make donations to needy Muslims elsewhere in the world. In 2004, I heard Islamic Aid (Secours Islamique) ask on the radio station Beur FM for Muslims to send Îd money to poor people living in Chechnya and Palestine. This is what the Centre Tawhid bookstore manager, Abdelkadir, does. In 2004 he said, “I don’t sacrifice. It’s better to send money to Palestine or Chechnya, where people have a greater need. Here we eat meat all the time, so it does not mean anything, but there they don’t.” He had an Islamic Aid can at the end of the counter for customers’ donations.
With so many Muslim public figures not sacrificing, is there a change in the sense of what the Islamic norm indeed is? Certainly many young Muslims look to the sacrifice along with eating halâl foods and fasting as practical and feasible foundations (and perhaps also material signs) of their own religious commitment. When in 2006 I was talking with students at the Institute associated with Dhaou Meskine, a young woman explained that she and others took those courses “to be able to separate religion from tradition, because we had both from our parents.” I asked if the “sheep festival” was tradition, and she immediately and emphatically denied that idea (and others showed their agreement): “It is religion, Sunna [the example of the Prophet], and different from incorrect traditions such as when a man says that his wife or daughter cannot leave the house without his permission, traditions that come from maschismo. And many imams have denounced suggestions that Muslims donate instead of sacrifice, saying it is bida [illegitimate change].”
But others have publicly suggested that over time, the practice will die out. As the Moroccan editor Hakim El Ghisassi, at that time the editor in chief of La Médina, explained to me in October 2002, “Most Muslims already have stopped carrying out the sacrifice; they just give money at that time. It is those who do not practice Islam who have a problem; they want their cultural traditions to continue.” For those scholars interested in creating new Islamic norms for France, it is important to remind Muslims that performing the sacrifice is a recommended act, not a required one, whereas the ritual prayer performed on the same day is required of all Muslims. Citing the problem of Muslims who neglect the required prayer while carrying out the optional sacrifice, Tareq Oubrou suggested that “[s]acrifice may disappear in the second and third generations. First, the cultural tradition of eating the meat together will disappear, and, second, the way people live, in apartments, make it impossible to carry out the killing of animals. In any case, the practice does not have the importance that Muslims give it. The sacrifice has a symbolic importance, as part of the Muslim tradition, Abraham’s sacrifice. It is enough if the imam, or two or three people in the Muslim community, sacrifice. But even if 1 million Muslims do not sacrifice, it’s not the end of world, given that it is not an essential rite.”31
Oubrou’s repeated use of “it would not be the end of the world” irritated Hichem El Arafa when I repeated it to him. He commented that Oubrou was correct in saying that sacrificing was not required, but that to dismiss it was hardly sending the correct message to France’s Muslims. Hichem: “I think it is better to explain things in a way that people understand rather than just saying something for its shock value. Sometimes shocking people can have its place, but here we have to make them understand.”
Are these measures taken by Muslims to reinterpret Islamic norms and practices met by any corresponding changes in how French public actors view the requirements of French law? We saw in chapter two that such is the case for matters of halâl meat production and sacrifice, for which the state allows exceptions to slaughtering regulations. But it is with respect to marriage and divorce that questions arise most pointedly about French norms and values.
French legal scholars indeed have been debating what Islamic marriage might mean in French terms. Because Islamic marriage cannot constitute a legal marriage in France, for reasons described earlier, their deliberations concern only marriage and divorces conducted in countries with Islamic legal institutions. Does an Islamic marriage or divorce conducted abroad continue to be valid when one or both of the parties come to France?
Now, generally marriages and divorces conducted in foreign states according to the laws of those states are valid—such is the nature of international private law. The broader area of law is that of “personal status.” However, in France, if a judge decides that applying the usual rules for resolving a conflict of laws would produce a solution contrary to French ordre public, then the judge may act contrary to those rules.32
What, then, is ordre public? Although it usually is translated as “public order” (or sometimes, and misleadingly, as “public policy”), the term has quite specific, strongly moral resonances. It refers both to the conditions of social order and to basic values, and it limits the range of laws that a legislator may pass and the decisions that a judge may make. It is one of those basic concepts of a legal system that resist definition precisely because they are expected to provide judges and jurists with the means to translate the values of a society into law, and as these values change, so too do the limits of the law.
With respect to matters that touch on the family, ordre public may be invoked to reject an option or action that otherwise would satisfy legal requirements. These “exceptions due to ordre public” evoke from jurists expressions that reflect the basic moral and emotional level of the objection. Laws or actions are judged to be “odious laws,” “shocking to the conscience,” or to incite “instinctive repulsion.”33 They may be characteristic of another society, judged to have institutions that offend the morality and values of the French tribunal. And, as a commentator on the role of ordre public in international private law points out, “personal status is the privileged domain for exceptions due to ordre public, because it is there where we are most likely to encounter institutions absolutely opposed to the values of civilization retained by the nation.”34 Finding vivid examples of practices offensive to ordre public in other societies thus not only reveals current French notions about the limits of the morally acceptable but may also be used to render concrete a general sense that France faces a “clash of civilizations” with certain other “civilizations.”
It is most notably with respect to Islam that this last function of ordre public emerges, and this use is anchored in France’s colonial history, and in particular in the critical role played by legal personal status in sorting out identities in the colonies, protectorates, and French Algeria. Indeed, to avoid essentializing racial or ethnic difference, and thereby to preserve the possibility of assimilating the colonized to civilized France, colonial officials, notably in Algeria, employed terms of “local personal status” to distinguish between North Africans who remained governed by Muslim laws and those who renounced that status for membership in the French legal domain.35 The opposition between Islamic law and French law thereby came to encode (and in official discourse often substitute for) the opposition between backward and evolved, or between less and more civilized. The dividing lines could be crossed, and colonized subjects could become French nationals and, eventually, French citizens. But they did so by renouncing Islamic family law; for this reason, some Islamic authorities in Algeria declared that crossing this legal line was tantamount to abandoning Islam. Thus, crossing the line between Islamic law and French civil law came to signify for French authorities and jurists the possibility of emancipation through legal change, while maintaining that line came to signify for some Muslims the resistance to colonial domination by nonbelievers.
These legal distinctions, transformed in various ways by succeeding constitutions, associated personal status with degrees of civilization but separated it from domicile. French citizens living permanently in the colonies were governed by French law. Colonial subjects governed by the local legal regime retained that legal status even if they entered France. Stepping onto the soil of metropolitan France did not suddenly let them enjoy the benefits of French personal status law any more than it suddenly gave them full French citizenship rights. The bilateral treaties signed by France with each of the former North African possessions at independence in effect prolonged those arrangements.36
This historical background may contribute to decisions taken by some French judges and jurists affirming that elements of Islamic marriage and divorce are contrary to French ordre public and thus justify setting aside the usual rules for resolving conflict of laws. These jurists argue that the institutions of unilateral repudiation (talaq), on the one hand, and polygamy, on the other, not only are prohibited in France but also violate the French (and European) commitments to the equality of women and men. They would disallow any “effects” produced in France by a talaq divorce or polygamous marriage carried out in another country, even when the marriage or divorce was legal and proper in that country.
Other jurists have pointed out that this position may be logical but that it creates practical problems. If a couple divorces in a country with Islamic tribunals, at which the husband pronounces the talaq, are they then to be considered still married in France? To say so would keep the wife from remarrying were she to reside in or settle in France. That hardly seems to be in the woman’s interest. And if a husband married a second wife in a country permitting polygamy and in accord with its rules, and then brought her and their children to France, those children would be denied social welfare benefits because their presence could not be justified under rules of family reunification. Refusing to recognize a polygamous marriage thus would deny those children the rights enjoyed by other children of the same man, and could be held to deny the couple the right to lead a normal family life. Equal rights for all children, and the right to a normal family life, are both enforced by the European Court of Human Rights.37
Through the mid-1980s, French court decisions affirmed the general principle found in conflicts of laws rules that if a couple of the same nationality marries, the effects that marriage might have in another country are governed by their own national law. This principle means that a polygamous marriage enacted in a country permitting polygamy is valid in France.38 The rulings meant that the wives and children of a man legally resident in France were allowed to join him in the name of family reunification and given residency permits. Thousands of women and children did so, coming mainly from Senegal, Mali, and Mauritius.
During the early Mitterrand years, the “right to a difference” reigned, and polygamous marriage practices were looked on as foreign customs to be respected, or at least to be tolerated. With the change in government (Mitterrand’s cohabitation with Jacques Chirac as prime minister), and especially during the second term of Charles Pasqua’s service as Interior Minister (1993–95), things shifted abruptly, on this as on all questions pertaining to immigration.39 A 1993 law forbade giving residence permits to second wives.
However, subsequent ministerial directives allowed second wives living in France prior to 1993 to renew their identity cards, and prevented the expulsion of a second wife if she had French children and had been living as a legal resident in France for ten years. These directives required that the maternal units “décohabitent,” that is, that they live in separate apartments (but did nothing to ensure that such wives, usually not functional in French, could live effectively on their own).40 In general, local officials and apartment managers adopted a live and let live policy and continue to do so, only intervening if an apartment becomes dangerously overcrowded. From time to time a municipal government decides to enforce the rule on separate apartments, as when in 2003 the city of Mantes-la-Jolie found seventy-five polygamous families in the Val-Fourré housing project and placed each wife in a separate apartment—but on the same floor.41 But by doing so, the municipality in effect recognized their marital condition.
And indeed, what else could they do? The practical considerations of public policy would seem to require that jurists find a resolution. Officials in fact recognize the “effects” in France of polygamous unions. Women and men need to get on with their lives, and some jurists have sought ways to allow recognition of unilateral repudiation contracted legally in another country, ordre public notwithstanding. To accomplish this end, these judges have employed two instruments already available in the legal literature. Both offer subtle modifications of the ordre public concept. The first distinguishes between institutions or events occurring in France that offend French sensibilities and those that occur elsewhere according to the rules in effect in that country and that later on produce effects in France—for example, because people immigrate. This concept, called “attenuated effect of ordre public,” was originally devised to deal with divorces by mutual consent at a time when France disallowed such proceedings. In more recent cases involving Muslims, the device allows a judge to accept that a couple is divorced by talaq or even that a woman is a man’s second wife, as long as the marriage and divorce took place elsewhere and are recognized as valid in that country.42 The judge may object to the practice in principle and yet not be required to alter everyone’s marital status once they cross the French border—a bit like al-Qaradâwî when he affirms the ban on loans at interest but makes a practical exception for European Muslims.
The second conceptual device (borrowed from German and Swiss legal theorists) has been to think in terms of a sliding scale of distance between the objectionable act and France itself. This “distance-relative ordre public” (ordre public de proximité) is similar to the “attenuation” idea discussed above: it allows a judge to say that if all parties to a polygamous marriage are foreign nationals, then this distance from France allows him or her to recognize the effects produced by the marriage: the second wife and her children may enjoy the same rights as the first wife. But once a French national is involved—and especially if a Frenchwoman is the first wife in a polygamous marriage—then the sociomoral “distance” is shrunk, and the judges do not recognize the second marriage. The same logic applies to talaq divorce: if a Frenchwoman is divorced in that way, then France itself becomes the object of the proceeding, and “the court is shocked,” as judges love to say.
The two concepts of attenuation and distance offered judges four advantages over the more blunt-instrument approach of finding polygamy or repudiation ipso facto repugnant. First, judges (and jurists, when they establish doctrine) could arrive at reasonable accommodations with practical life: why should a couple who divorce according to Moroccan law be prevented from remarrying if the woman agrees with the procedure?43 Second, judges could distinguish among the several elements of a proceeding and discover those that could be approved from the standpoint of French notions of ordre public. For example, judges have argued that the problem is “attenuated” if basic principles of fair treatment are observed: if the wife was present at the divorce hearing, presented her case, and received a reasonable compensation, then perhaps “one may find in that repudiation a community of institutions with a French divorce or separation” and accept its effects in France.44 Third, distinguishing in such a way among acceptable and unacceptable elements might contribute to the evolution of laws in the countries in question toward more gender-equal proceedings, as in the case of the recent modification of Moroccan family laws.45 Finally, these distinctions would make French authorities seem less hypocritical on a moral plane, at a period in history when increasing numbers of French couples do not marry and a certain number, in particular successive presidents of France, engage in de facto polygamy.46
This socially pragmatic reasoning (akin to reasoning from objectives by Muslims) appeared to have convinced a number of judges during the last decade of the twentieth century. Decisions taken by the Court of Cassation in 1999 and 2001 supported this approach, refusing to declare the talaq intrinsically repugnant but looking to the degree to which the wife’s interests were guaranteed by the divorce tribunal.47 Perhaps reflecting the gulf between theory and practice, the masters of doctrine, those jurists who write influential comments on decisions, rejected these decisions on grounds that the very institution of talaq was contrary to French and European principles of gender equality and thus of human rights. Influenced by these objections, in February 2004 the same chamber of the Court of Cassation reversed itself and pronounced unilateral repudiation intrinsically contrary to French ordre public and also to the European Convention on Human Rights.48
As of 2009, French jurists are debating among themselves about how judges ought to approach Islamic marriages and divorces.49 Not only is it unclear, and much discussed, what precisely it is that offends ordre public, but jurists must also weigh competing considerations. On the one hand, they would like to allow people who marry or divorce elsewhere to retain that status when they come to France (and the principles of international law dictate such a position). But on the other hand, they would like to use the law to send a message about the kinds of family forms and judicial processes that France sees as fair and gender-friendly.
The debates among scholars of Islam and those among French jurists derive their force mainly from what protagonists see as the consequences of alternative interpretations of legal texts in a French social world that is resolutely plural in its social composition and normative convictions. Under the façades of positive legal unity, on the one hand, and a single divine path for all humans on the other lie the dilemmas of constructing the legal conditions for common life that are capacious enough to “reasonably accommodate” people living in differing conditions and with differing beliefs, yet unitary enough to retain the hope that such a common life is conceivable.