Download Harun_Islamic Norms in Secular sphere

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Document related concepts

Sources of sharia wikipedia, lookup

French ban on face covering wikipedia, lookup

Fiqh wikipedia, lookup

Muslim world wikipedia, lookup

Islam and violence wikipedia, lookup

Islam and war wikipedia, lookup

Schools of Islamic theology wikipedia, lookup

Islamofascism wikipedia, lookup

Islamic Golden Age wikipedia, lookup

Criticism of Islamism wikipedia, lookup

Islam in Afghanistan wikipedia, lookup

Islam in Somalia wikipedia, lookup

Faisal Kutty wikipedia, lookup

Dhimmi wikipedia, lookup

Islamic democracy wikipedia, lookup

Liberalism and progressivism within Islam wikipedia, lookup

Islamic schools and branches wikipedia, lookup

Islamic ethics wikipedia, lookup

Political aspects of Islam wikipedia, lookup

Islamic socialism wikipedia, lookup

Islam and secularism wikipedia, lookup

Censorship in Islamic societies wikipedia, lookup

Islam and other religions wikipedia, lookup

Islamic culture wikipedia, lookup

Islam and modernity wikipedia, lookup

Transcript
DRAFT VERSION: DO NOT QUOTE
Shari’a norms in a secular state: the case of Bosnia and
Herzegovina
By Harun Karčić
Introduction
The 20th century has witnessed the immigration of large numbers of Muslims, mostly from
south Asia, to Western Europe and the United States. Among the problems often faced by
such immigrant communities were also questions pertaining to their religion, or more
precisely, to their religious laws. Many of these Muslim immigrants came from countries
(such as Pakistan, India, Morocco, and Egypt) that applied certain aspects of Shari’a law,
usually personal status law but also Shari’a criminal law, such as Pakistan. As Shari’a law
regulated much of their daily lives in Muslim majority countries, the inevitable question that
arises is does Shari’a law still regulate the lives of European Muslims?
We can go one step further and ask: can a Muslim living in Europe be punished for premarital
relations? Can a Muslim apostate living in Europe be killed? Can a Muslim living in Europe
borrow money from a bank charging interest? Can Muslims have Shari’a marriages only,
instead of civil marriages?
As Muslim immigrants in Western Europe and the United States are a recent community who
have been more preoccupied with mere survival and providing for their families back home,
they have not been able to develop, yet, original Islamic though in Europe. For this reason it is
to be expected that there is much confusion and disagreement among the many different
Muslim religious authorities, representing different immigrant communities, in Europe.
This paper looks at an under-studied autochthonous European Muslim community, that of
Bosnian Muslims, who were driven to develop their own Islamic thought under a harshly
secularist communist regime, and tries to construct the domains of Shari’a law among
Bosnian Muslims living in a secular state today. It does so by looking at the fatwas issued by
the fetva-i-emin of the Islamic Community in Bosnia and Herzegovina, the person in charge
of issuing fatwas in the Islamic Community. The answers provided by the fetva-i-emin on the
normative aspects of Shari’a will provide answers to the following questions. First, what
questions pertaining to Shari’a are of most relevance to Bosnian Muslims living in a secular
state? Second, what aspects of Shari’a can be freely practiced in a secular state? Third, what
aspects of Shari’a law can be applied parallel to secular state laws? Finally, what aspects of
Shari’a law cannot be applied in a secular state?
The answers provided to the above question will illustrate the domains of Shari’a law in a
secular state such as Bosnia and Herzegovina.
DRAFT VERSION: DO NOT QUOTE
A short overview of Shari’a Law in Bosnia-Herzegovina over the centuries
In the Ottoman Empire the concept of din-ve-devlet or the fusion of religion and the state was
the mode of religion-state relations. Islam, being the religion of the state and part of the state
apparatus, ensured that Islamic law or Shari’a enjoyed supremacy throughout the Empire.
Shari’a law regulated personal-status affairs of Muslims as well as public and state affairs,
while also regulating that non-Muslim enjoyed their religious and judicial autonomy with
regard to their personal-status affairs. Islam being the religion of the state played a central role
in the Empire, and the Ottomans saw it as their duty to protect Islam, its laws, its holy places,
and to advance the cause of Islam. The Sultan of the Ottoman Empire named the top Islamic
authority of the Empire, the Shaikh-ul-Islam or the ‘Elder of Islam’.
The Shaikh-ul-Islam in turn named the muftis who were then sent to the provinces to issue
fatwas (legal opinions) and also named the qadis (judges) who sat on official courts all over
the Empire.1 But the Sultan himself was checked by the laws of Islam, and although he
himself could bring new laws, he could only do so much. There was no possibility of him
intervening in areas relating to personal, family, or inheritance laws. He developed the kanun
to fill in the gaps where the Shari’a was silent or vaguely indicative. These included
international trade, maritime laws, diplomacy, and commerce, all of which flourished during
the 14th, 15th and 16th century.
Ottoman law in parts of the Western Balkans as well as in other parts of the Empire, was
based on the Shari’a and kanun, the latter having the function of supplementing the former,
but in practice often being either not in line or contrary to the Shari’a.2 It is interesting to note
that the kanun as applied in the Ottoman Western Balkans was very much adapted to the
socio-political conditions and state fiscal needs, so much so that for some hudud punishments
prescribed by the Qur’an such as for the crime of adultery (zina), monetary fines were
prescribed instead of the death penalty or whipping.3
In Ottoman Bosnia, just like in other parts of the Empire, a unique system of the interpretation
and application of Shari’a existed. Two major functions existed for this system: the qadi and
the mufti. Since qadis were embedded within the advancing Ottoman army, they were the first
to arrive to Bosnia-Herzegovina. Their role within the army was mainly to solve disputes
among soldiers, help divide war booty, and aid soldiers in writing testaments. In conquered
lands, the function of the qadis extended to the application of the kanun and Shari’a as well as
matters of local government. With the consolidation of Islam and new rule came the
establishment of muftiluks in the 16th century Ottoman Bosnia, each muftiluk being headed by
a mufti. The function of the muftis was to interpret the Shari’a, a function for which broader
knowledge of the Sacred Texts was required. This was in contrast to the qadi who had a more
administrative function of applying the Shari’a.
Tanzimat reforms resulted in the re-organization of administrative units run by qadis known
as qadiluks and administrative units run by muftis known as muftiluks. Tanzimat reforms also
resulted in the abolishment of the traditional Ottoman Criminal Code which was replaced by a
Western legal code.
1
Justin McCarthy, The Ottoman Turks: An Introductory History to 1923, Longman Limited, 1997, p.119.
Fikret Karčić, Historija Šerijatskog Prava, Fakultet Islamskih Nauka u Sarajevu, 2005, Treće dopunjeno
izdanje, p. 210.
3
Karčić, Historija Šerijatskog Prava, p.211.
2
DRAFT VERSION: DO NOT QUOTE
The 1878 Treaty of Berlin gave the Austro-Hungarian monarchy the right to occupy and
administer the Ottoman province of Bosnia and Herzegovina. Islam, being the dominant
religion in Bosnia and Herzegovina, was recognized by the Austro-Hungarian monarchy and
became one of the six recognized religions of the monarchy. Shari’a law, which was during
the Tanzimat period applied mostly in the area of personal status law (i.e., marriage, divorce,
inheritance) was allowed by the Austro-Hungarian monarchy to continue functioning in the
given field.4
Following the end of the First World War and the collapse of the Austro-Hungarian Empire,
the newly established Kingdom of Serbs, Croats, and Slovenes signed the Treaty of San
Germaine on the 10th September 1919. Within this treaty were special provisions for Muslims.
Among these were the obligatory application of Muslim personal status and family law, the
appointment of the Reis-ul-ulema (the ‘Grand Mufti’), protection of mosques, cemeteries and
other religious objects, and providing conditions for the easing of establishing and managing
of Islamic endowments (waqfs).5 According to this Treaty, the entire Muslim population of
the Kingdom, including Albanians, Turks, and Roma, were to be treated as one religious
minority. Apart from the international Treaty, the recognition of Shari’a law and the
functioning of Shari’a courts were also introduced into the Constitution of the Kingdom of
Serbs, Croats, and Slovenes.
The functioning of Shari’a courts as such continued until 1941 when Yugoslavia came under
Nazi German occupation which resulted in major socio-economic and political turbulences.
With the communist partisan takeover of power in 1945 and the proclamation of Socialist
Yugoslavia, Shari’a law and Shari’a courts were abolished the following year.
Institutionalization of Islam in Bosnia-Herzegovina: the Islamic Community of Bosnia
and Herzegovina
After the Congress of Berlin in July 1878, Austro-Hungary was given the right to occupy and
administer Bosnia and Herzegovina. This had a significant impact on Bosnian Muslims and
Islam in Bosnia and Herzegovina. Islam had until then been the state religion in Bosnia and
Herzegovina (as part of the broader Ottoman Empire) but after the Austro-Hungarian
annexation it became one of the six ‘recognized religions’ of the non-Muslims Empire.6 The
new circumstances led Bosnian Muslims to seek answers and work towards establishing their
own Islamic administration, which was eventually created on the 15th April 1909 when the
Habsburg monarch approved the Statute for the Autonomous Administration of Islamic
religious waqf (endowments) and educational affairs.
Some of the basic features of the statute included the creation of the Mejlis al- Ulama (council
of Islamic scholars) headed by the Reis-ul-Ulema (Head of the Scholars). The administration
of waqfs and educational institutions (ma’arif) was unified and given to the boards elected by
Muslims who carried out their work with much autonomy and were bound only by the
provisions of the Statute and law of the land. Religious education was also provided in more
than 1000 maktabs (elementary schools), 92 mektebi-i-ibtidai (modernized elementary
Fikret Karčić, Historija Šerijatskog Prava, (Fakultet Islamskih Nauka, Treće dopunjeno izdanje, Sarajevo,
2005), p.219.
5
Fikret Karčić, Šerijatski sudovi u Jugoslaviji 1914-1941, Fakultet Islamskih Nauka u Sarajevu & El-Kalem,
2005, p.34.
6
Fikret Karčić, 'Administration of Islamic affairs in Bosnia and Herzegovina,' Islamic Studies, 38:4, 1999, p.539.
4
DRAFT VERSION: DO NOT QUOTE
schools), and 42 madrasas (high schools). The third segment of Islamic administration was
Shari’a courts. The Habsburgs adopted the already-in-use 1859 Ottoman law on Shari’a
courts which meant that Shari’a law continued to have jurisdiction in the same areas (personal
status of Muslims and waqfs) as in Ottoman times.
The Habsburgs collapsed after World War I and Bosnia and Herzegovina was incorporated
into the Kingdom of Serbs, Croats, and Slovenes in 1918. The administration of Islamic
affairs in Bosnia and Herzegovina continued as before, while Muslims in other parts of
Yugoslavia had their separate religious administration which lasted until 1930. The new
regime of Aleksander Karadjordjevic introduced a unified administration of religious affairs
for all Muslims in Yugoslavia and in a way took control over that administration. A new law,
the Law on the Islamic Religious Community, was promulgated on the 30th January 1930 and
thereafter the official name of the administration of Islamic affairs in Yugoslavia was the
Islamska Vjerska Zajednica (Islamic Religious Community). The administration of Islamic
affairs continued to revolve around the same segments (religious hierarchy, education, waqfs,
Shari’a courts) but since the Islamic Religious Community was placed under the control of
the Ministry of Justice, some democratic elements (such as elections for posts within the
Community) were abolished and henceforth all Islamic religious officials were appointed by
State authorities instead of being elected.7
The end of World War II resulted in the communists taking over control over Yugoslavia with
the new regime adhering to a concept of staunch secularism, which was to have a significant
impact on Islam in Yugoslavia. One of the first restrictions of the new regime towards
Yugoslav Muslims was the abolition of Shari’a courts on the 5th March 1946. Next, in 1952
the government closed all Islamic religious schools, and left only one (the Gazi Husrev Bey
madrasa in Sarajevo) open to cater for the minimal needs of Yugoslav Muslims. Thirdly,
waqfs (including arable land, companies, spas, hotels, residential premises, and even
graveyards) were expropriated, nationalized, and re-distributed in the period spanning from
1945 to 1958. This was a severe economic blow from which the Islamic Religious
Community was never to recover.
The following years saw the reorganization of the Islamic Religious Community on a basis
similar to that of the federal structure of Yugoslavia. This resulted in each member state of
Yugoslavia having its own Majlis al-ulama and waqf assemblies with a Supreme Islamic
Council and a Supreme Waqf Assembly at federal level as the collective leadership of the
community.8 With the liberalization of the Yugoslav regime after the fall of Aleksander
Ranković as the Head of the Internal Security Service in the late 1960s, a gradual
liberalization of the regime took place and more space for religious activities was given.
The Islamic Religious Community changed its name to ‘Islamic Community’ in its new 1969
Constitution and, as Fikret Karčić, notes carried out some internal changes in line with the
changes in the State structure which were, just like in previous years, always reflected on the
internal organization of the Islamic Community.9 Although Yugoslav state secularism may
not have essentially changed all that much, the gradual liberalization of the political regime
resulted in a more accommodating attitude vis-à-vis religion and this along with other factors
eventually led to the revival of Islam in Yugoslavia throughout the 1970s. Numerous mosques
were constructed and renovated mostly with the money of Yugoslav Muslims gasterbaiters
Karčić, 'Administration of Islamic affairs in Bosnia and Herzegovina,' p.542.
Ibid, p.544.
9
Ibid, p.545.
7
8
DRAFT VERSION: DO NOT QUOTE
working in Germany and Austria. New Islamic educational institutions were established such
as the Islamic Theological Faculty and the girls section of the Gazi Husrev Bey madrasa in
Sarajevo and publishing activities flourished.10
The structure of the Islamic Community continued to function, at least theoretically, as
Yugoslavia was breaking up and as the war was engulfing Slovenia, Croatia, and Bosnia and
Herzegovina. On the 1st of April 1993 the Islamic Community held a Constituent Assembly in
Sarajevo which resulted in a declaration calling for the reconstruction of an autonomous
Islamic Community in Bosnia and Herzegovina.11 The new Islamic Community was
registered in the Municipality of Sarajevo Center on the 5th May 1993 under the name of
Islamic Community of Bosnia and Herzegovina, and has continued to function as such, albeit
with minor changes, until present day.
Today according to their official website, the Islamic Community proclaims itself to be ‘the
basic, autochthonous, authentic and only legitimate and legal religious institution of Bosnian
Muslims.’12 Furthermore, the Meshihat of the Islamic Community in Croatia, the Meshihat of
the Islamic Community in Sanjak region of Serbia, and the Meshihat of the Islamic
Community of Slovenia all constitute parts of the Islamic Community in Bosnia and
Herzegovina. In recent decades and with large numbers of Bosnian diaspora abroad, the
Islamic Community has been extended to included jamaats (‘congregations’) in many West
European countries, United States and Canada, and Australia. It should be stressed that in
Bosnia and Herzegovina the Islamic Community encompasses Muslims regardless of ethnic
belonging who recognize the Islamic Community as theirs, however, outside the borders of
Bosnia and Herzegovina, the Islamic Community is made up mostly of ethnic Bosniaks.13
The Islamic Community prides itself in having autonomy to carry out its activities and in
handling its property without any foreign interference. The main duties of the Islamic
Community are to ensure that all its members live life in accordance to Islamic norms, and
this is to be achieved by promoting virtue and deterring vice. One of the major duties of the
Islamic Community is providing its members with ‘official interpretations’ of Islamic norms
according to the Hanafi School of Islamic Jurisprudence.14
The Islamic Community has a strict hierarchy and is made up of seven components including
the basic level jamaat (‘congregation’) which usually consists of at least 100 Muslim
households.15 Each jamaat deals with its own day to day activities and has somewhat of a
self-management style of functioning. The next level is called the Majlis which, by rule, is
made up of seven jamaats and usually falls within the borders of a particular municipality.16
Several Majlises make up a Muftiluk headed by a Mufti. There are seven Muftiluks in Bosnia
and Herzegovina including one in Sarajevo, Goražde, Zenica, Tuzla, Banja Luka, Bihać,
Mostar, Travnik, and a Mufti for the Armed Forces of Bosnia and Herzegovina. Above the
Muftis is the Riyasat or the ‘Government’ of the Islamic Community which deals with more
complex issues of the Islamic Community.17 Next in line of the hierarchy comes the Rais-ulFikret Karčić,'Islamic Revival in the Balkans,' Islamic Studies, 36:2, 3, 1997, p.571.
Karčić, 'Administration of Islamic affairs in Bosnia and Herzegovina,' p.547.
12
http://www.rijaset.ba/index.php?option=com_content&task=view&id=48 (last accessed 20 September 2010).
13
Ibid.
14
Ibid.
15
http://www.rijaset.ba/index.php?option=com_content&task=view&id=49 (last accessed 20 September 2010).
16
Ibid.
17
Ibid.
10
11
DRAFT VERSION: DO NOT QUOTE
Ulama (‘Grand Mufti’) who is the head of the Islamic Community and represents it locally
and abroad.
The Grand Mufti is elected by the Sabor Islamske Zajednice (‘Assembly of the Islamic
Community’) for a mandate of seven years with the possibility of another extension. Above
the Grand Mufti is the Assembly of the Islamic Community which is the highest
representative and legislative body of the Islamic Community made up of prominent members
of the Islamic Community.18 The Assembly is responsible for bringing any amendments to the
Constitution of the Islamic Community or even a new Constitution, should it be necessary.
Finally, at the very top of the Islamic Community is the Constitutional Court of the Islamic
Community which is the highest body for controlling that the activities of the Islamic
Community and its organs are in accordance with its Constitution. It has the mandate to
resolve all legal issues pertaining to the Islamic Community and its decisions are binding
upon the lower institutions of the Islamic Community.
The Fatwa Council in Bosnia and Herzegovina
The Fatwa Council (‘Vijeće za Fetve’) was established in 2005 by the Riyasat (‘Presidency’)
of the Islamic Community in Bosnia and Herzegovina as a specific body for the interpretation
of Shari’a law.19 The aim of the Fatwa Council is to provide fatwas on questions pertaining to
the normative aspect of a Muslim’s life. The Council has a secretary, fetva-i-emin who is,
upon the recommendation of the Grand Mufti, appointed by the Council. The main goals of
the Council are to revive and develop Shari’a science, to provide answers to questions in the
form of fatwas, to encourage and abet students in the research of Shari’a to answer pressing
issues, and lastly, to guide Muslims, especially the youth, towards the pristine teachings of
Islam and to teach them the means of practicing Islam in a multi-confessional, multi-national,
and multi-cultural society such as in Bosnia and Herzegovina.20 In the interpretation of
Shari’a, the Council will have inclusive access to all madhabs (‘Schools of Though’) but
regarding questions pertaining to ibadat or devotional matters, the Hanafi School of though
will be given priority. Although the Grand Mufti is the nominally the president of the Fatwa
Council, in practice it is the fetva-i-emin who takes the responsibility of providing answers
posed by readers which are published in the Islamic Community’s Preporod newspaper as
well as on the Islamic Community’s website (www.rijaset.ba).
The legal framework for the manifestation of Religion or Belief in Bosnia and
Herzegovina
Three legal frameworks ought to be considered in order to understand the position of religion
vis-à-vis the state in Bosnia and Herzegovina. On top of the hierarchy is the European
Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols.
This is followed by the Constitution of Bosnia and Herzegovina, and lastly by the Law on the
Freedom of Religion and the legal status of Churches and Religious communities in Bosnia
and Herzegovina. We will briefly look at each one of these and the religious rights that it
guarantees.
18
Ibid.
'Pravila o radu Vijeća za Fetve-Fetve-i-Medžlis u Bosni i Hercegovini', Glasnik, No.3-4, 2005, p.415.
20
Član 13, p.416.
19
DRAFT VERSION: DO NOT QUOTE
European Convention for the Protection of Human Rights and Fundamental Freedoms and its
protocols
Article 9.1 of the Convention states that 'everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief and
freedom, either alone or in community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.'21 Further to this, article 9.2
of the Convention states that 'freedom to manifest one’s religion or beliefs shall be subject
only to such limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.'22 Article 14 of the Convention also reaffirms
the principle of non-discrimination by stating that 'the enjoyment of the rights and freedoms
set forth in this Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.'23
The Constitution of Bosnia and Herzegovina (Annex IX of the Dayton Peace Agreement)
Article 2.2 of Annex 4 of the Dayton Peace Agreement state that ‘the rights and freedoms set
forth in the European Convention for the Protection of Human Rights and Fundamental
Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have
priority over all other law.’24Article 2.7 of Annex IV of the Dayton Peace Agreement
guarantees the freedom thought, consciousness and belief.25 Article II further states that all
citizens of Bosnia and Herzegovina have the right to enjoy the rights mentioned in Article II
of the Dayton Peace Agreement without regard to, among other things, their religion.26
Law on the Freedom of Religion and the legal status of churches and religious communities
in Bosnia and Herzegovina
Article 4 of this law states that everyone has the right to express one’s religion and belief,
including the right to publicly manifest one’s religion or not to manifest it.27 The law also
states that everyone has the right to accept or to change a religion. The law also states that
everyone has the right to religious education, which is to be carried out by religious officials
of one’s church or religious community, including in religious institutions as well as in public
and private pre-school institutions and primary schools and also higher levels of education.
Article 14 of the Law also states an important principle for this study: the separation of church
and religious communities from state.28 It further states that the state cannot award any
religion the status of a state religion nor can it award any church the status if a state church.
Second, the state cannot interfere into the inner affairs of any church or religious community.
Third, no church or religious community nor its officials can be given special privileges.
21
Article 9, Convention for the Protection of Human Rights and Fundamental Freedoms, with Protocols Nos . 1,
4,6,7, 12 and 13, p.6. Available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/ENG_CONV.pdf
22
Ibid.
23
Ibid. p.7.
24
Article 2.2, Annex IX, Dayton Peace Agreement.
25
http://www.oscebih.org/overview/gfap/bos/annex4.asp
26
Article II.
27
Article 4, Zakon o slobodi vjere i pravnom položaju crkava i vjerskih zajednica u Bosni i Hercegovini,
(Međureligijsko vijeće u BIH, Decembar 2007), p.8.
28
Ibid, p.14.
DRAFT VERSION: DO NOT QUOTE
Fourth, the State can, on the principle of equality, support churches and religious communities
for the preservation of their culture and historical heritage, health care, education, and
humanitarian and social work under the condition that church and religious communities carry
out these activities on a system of non-discrimination. Lastly, the article states that the public
manifestation of religion and belief can only be limited on the basis of law and in conformity
with international standards when an organ in-charge deems it necessary and in the interest of
public security, health protection, public moral, or in the effort to protect the rights and
freedoms of other persons in accordance with international legal standards.29
From the above we can conclude the following. First, Bosnia and Herzegovina is a secular
state. A privileged status cannot be awarded to any church or religious community. Everyone
has the right to practice and express one’s religion and belief freely, both in private and in
public. What falls within the category of ‘expressing’ one’s freedom of religion or belief is to
be decided by the church and religious community officials. The state has no right to interfere
in this area. These freedoms of religion or belief can only be limited by law, and only if there
is a justified reason to do so, such as in case of protecting public security, public moral, health
and rights and freedoms of others. This too has to be in accordance with international
standards.
Shari’a Norms: a definition
The literal meaning of Shari’a is ‘the way to the watering place’ or the path of those ‘seeking
felicity and salvation’.30 According to Muhammed Hashim Kamali, the word appears only
once in the Qur’an and is used in contradistinction with hawa (whimsical desire).31 The
Qur’anic verse where this word appears is:
‘Thus we put them on the right path (shari’atan) of religion. So follow it and
follow not the whimsical desire (hawa) of those who have no knowledge.’ (45:18)
Abdullah Yusuf Ali explains this verse as referring to the ‘right way of religion’32 and being
the path to religion (Islam), Shari’a norms hold an esteemed position for Muslims. In fact,
Shari’a norms provide obligations and recommendations for every aspect of a Muslims way
of life and they are in fact the core component of the religion of Islam. Muhammad Hashim
Kamali divides Shari’a norms into two categories, namely, norms dealing with ‘ibadat
(devotional matters) and norms dealing with mu’amalat (civil transactions). Within the first
category are also moral recommendations.33 During the Prophet Muhammad’s 12 and a half
year residence in Makkah (while Muslims were a tiny minority), Shari’a norms revealed to
him were mostly focused on belief and moral advancement. After the Prophet’s migration to
Madinah where Muslims established a new community and government, the bulk of legal
norms (an estimated 350 out of 6,200 verses in the Qur’an) were revealed over the 10 year
period. Here it is worth stressing that the hudud (penal rulings) were revealed only in the last
two years of the Prophets life.34 This gradual mode of revelation is instructive as it points out
to devotional and moral primacy over legal norms. It also tells us that in countries where
Muslims are a minority (i.e. as in the early Makkah) devotional and moral norms are
29
Ibid, p.15.
Muhammad Hashim Kamali, An Introduction to Shari'a, (Ilmiah Publishers, Kuala Lumpur, 2006), p.2.
31
Muhammad Hashim Kamali, p.2.
32
Ibid.
33
Kamali, pp.14-15.
34
Kamali, p.3.
30
DRAFT VERSION: DO NOT QUOTE
accentuated while legal norms are only stressed upon (and enforced) if there is a Muslim
majority and an Islamic government (i.e. as in the case of Madinah).
Shari’a norms which regulate the relationship between Man and God such as devotional and
moral norms fall into the first category (ibadat). An Islamic government cannot enforce these
norms, at least not in private. They are aimed at the individual and failure to fulfill these
norms has no worldly sanction, except for moral reprimand. There is only Divine sanction in
the hereafter. Shari’a norms which regulate the relationship between individuals and which
regulate public rights or rights of the community fall into the second category (mu’amelat).
These norms are enforceable through the courts and are of primary concern to Muslim
government authority and judiciary. Only a government or government officials can enforce
these legal norms. In the absence of an (Islamic) government, these norms are not
enforceable.
Thus, we can conclude that Shari’a norms are divided into devotional, moral, and legal
norms.35
Shari’a norms in practice
In order to understand the domains of Shari’a norms in a secular country such as Bosnia and
Herzegovina, we can refer to the fatwas issued by the fetva-i-emin of the Islamic Community
in Bosnia and Herzegovina, the person responsible for issuing fatwas on behalf of the Islamic
Community.
The questions posed to the fatwa-i-emin are very diverse and include questions pertaining to
belief, prayer, fast, alms tax, hajj, moral, interpersonal relations, economy, criminal law,
copyright law, waqf, inheritance, and marriage. In order to better understand how Shari’a
norms have been incorporated into the lives of Muslims living in a secular state, we will
observe three different cases. First, we will look at cases where Shari’a norms can be freely
expressed without infringing the rights of other non-Muslims or clashing with state laws.
Second, we will look at cases where Shari’a norms are applied parallel to secular state norms
(although only state norms are legally binding). Third, we will look at cases where Shari’a
norms are not enforceable and where secular state norms are in their place as positive legal
norms.
The questions posed to the fetva-i-emin regarding the normative function of Shari’a in Bosnia
and Herzegovina can reveal which aspects of Shari’a are of importance to Bosnian Muslims
living in a secular state. Likewise, the answers provided by the fetva-i-emin reveal the line of
Shari’a interpretation taken by the Islamic Community in a secular state such as Bosnia and
Herzegovina.
Among the types of questions most often posed by Bosnian Muslims to the fetva-i-emin it is
worth mentioning that questions pertaining to Purification (129 questions), Prayer (300
questions), Fasting (121 questions), Zakat (104 questions), and Prohibitions/Sins (122
questions) make the top of the list.
35
The same division of Shari'a norms was reached by Leonid Sykianen, Shari'a and Muslim-Law culture, p.2.
Available at www.ca-c.org/dataeng/08.syki.shtml (last accessed 20 October 2010).
DRAFT VERSION: DO NOT QUOTE
This was followed by questions pertaining to Pilgrimage (45 questions), Funeral (74
questions), Marriage law (146 questions), Credit/Interest/Savings (72 questions), Women’s
rights/abortion (72 questions), Work/income (39 articles), Inter-personal relations and
Neighbors (25 questions), Economy/Trade (19 questions), Inheritance law (15 questions),
Ahlaq/Moral (14 questions), and Lottery games (9 questions).
The questions of least interest were about the (Islamic) Criminal and penal law (5 questions),
and Waqf (2 articles).
From the above we can deduce the division of Shari’a norms according to their importance
which almost exactly fits the theoretical division mentioned earlier in this work. Namely,
Shari’a religious norms (prayer, purification, fasting, zakat, pilgrimage) are at the top of the
hierarchy with the highest number of questions and highest number of viewer hits. Next in
line are Shari’a moral norms (work ethics, trade, lottery games, and inter-personal relations).
Lastly, the questions of least interest pertained to Shari’a legal norms, which are not in force.
Certain Shari’a legal norms, which can be applied parallel to secular norms such as marriage
and inheritance, also fall in the second category.
Having seen what Shari’a norms are of relevance to Bosnian Muslims, we can now look at
how these norms are expressed in practice.
The Domains of Shari’a in a Secular State
Case 1: Applying Shari’a norms without restrictions
Within the framework of the laws guaranteeing freedom of religion and belief in Bosnia and
Herzegovina, Shari’a religious as well as moral norms can be freely applied. Although there
are numerous examples of Shari’a religious and moral norms that can be freely applied in a
secular state, we will illustrate just a few examples.
Among Shari’a religious norms, first and foremost, we can include the five basic pillars of
Islam and what every Muslim is required to perform in order to be a Muslim. These include
the testimony of faith (shahadah), prayer (salat), giving alms (zakat), fasting the month of
Ramadan (sawm), and pilgrimage to Makkah (hajj). These five core Shari’a religious norms
can be adhered to by the individual without any restrictions. Although the performance of
these religious obligations is an individual duty, in Bosnia and Herzegovina it is made easier
with the existence of the Islamic Community as an institution which provides locally trained
imams to lead prayers in mosques, collects zakat and sadakatul-fitr (alms taxes) into a special
fond known as the Beytul-mal36 and also organizes the annual pilgrimage to Mecca (hajj).
Shari’a religious norms pertaining to birth and death can also be freely applied. For example,
religious practices performed after the birth of a child (aqiqa) and the circumcision of male
children can be freely practiced in Bosnia and Herzegovina and can be conducted with the
help of imams from the Islamic Community. Likewise Shari’a religious norms pertaining to
36
http://www.rijaset.ba/index.php?option=com_content&view=article&id=7477:utemljenost-davanja-zekata-ubejtul-mal&catid=164:zekatsadaka&Itemid=139
DRAFT VERSION: DO NOT QUOTE
funeral prayers (janaza) are conducted by Islamic Community’s muftis and imams and the
deceased are buried in Muslim cemeteries.37
Shari’a religious norms pertaining to diet are also applied without any restriction. In Bosnia
and Herzegovina the Islamic Community has established the Agency for Halal Quality
Certification in 2006 with the aim of testing and certifying food products to meet halal
standards set forth by the Islamic Community.38 Prior to that, there were individual butcheries
which slaughtered meat in accordance with Shari’a religious norms, but without any official
certificates or stamps. The Agency, however, has made matters much easier for Bosnian
Muslims who can now find halal certified food products, although still in humble but rising
amounts, in major supermarkets. As for the sacrifice of animals (qurban) during the Muslim
religious holiday of ‘Aid al-Adha, a practice which has on a number of occasions come under
criticism in the West from animal rights groups, can be performed freely in Bosnia and
Herzegovina as it is allowed under Article 16 and 17 of the Law on the Protection and
Wellbeing of Animals which explicitly allows animals to be slaughtered for religious
purposes.39
Shari’a religious norms regulating dress code for both males and females can also be adhered
to without any restriction in Bosnia and Herzegovina. Regarding the dress code for women,
the fetva-i-emin of the Islamic Community stated that women are required to wear loose
clothes which do not reveal their body shape but that their hands, face, and feet below the
ankle do not need to be covered.40 According to the fetva-i-emin, the headscarf is an
obligatory part of a Muslim woman’s dress code.41 It is also the opinion of the fetva-i-emin
that headscarf-wearing women can work.42 Thus so far, there have not been any legal barriers
against Bosnian Muslim women wearing the headscarf at work although there have been
individual cases of discrimination against headscarved women. As for men, the fetva-i-emin
stated that men need to cover the lower part of their bodies till their knees.
Shari’a religious norms pertaining to the inter-personal conduct of Muslims as well as to their
workplace can also be freely adhered to. An example of a Shari’a norm pertaining to interpersonal conduct is repaying a debt, which is a strict obligation in Shari’a law. Even in cases
where there is no state mechanism to coerce a person to repay a debt (i.e. in the case of an oral
agreement), the fetva-i-emin stated that repaying the debt still remains an obligation (unless it
is waived by the debtee) and there is no statute of limitation.43
Another example of a Shari’a religious norm pertaining to workplace is the question of
working in a bank. As it is well known, among the many transactions a bank conducts are also
transactions involving the charging of interest rates which are contrary to Shari’a law. In
37
http://www.rijaset.ba/index.php?option=com_content&view=article&id=1241:ko-mofe-biti-imam-nadfenazi&catid=160:smrtdfenazaopremanje-umrlog&Itemid=139
38
See www.halal.ba undr 'O Agenciji'.
39
Zakon o zaštiti i dobrobiti životinja
http://www.mvteo.gov.ba/org_struktura/sektor_prirodni_resursi/odjel_zastita_okolisa/Zakoni_i_propisi/Zakoni_i
_propisi_na_snazi/BiH/?id=2331
40
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8390:oblaenjeene&catid=135:renska-pravaabortus&Itemid=139
41
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8673:jaina-obaveznosti-mahrame-zaene&catid=135:renska-pravaabortus&Itemid=139
42
http://www.rijaset.ba/index.php?option=com_content&view=article&id=3632:pokrivena-fena-iposao&catid=135:renska-pravaabortus&Itemid=139
43
http://www.rijaset.ba/index.php?option=com_content&view=article&id=9037:vraanje-dugaosobi&catid=153:meudski-odnosikomsiluk&Itemid=139
DRAFT VERSION: DO NOT QUOTE
response to this, the fetva-i-emin stated that working in banks which charge interest rates is a
combination of ‘haram and halal’, in the sense that certain bank transactions are allowed
(halal) according to Shari’a law whereas others such as interest are forbidden (haram).44 The
fetva-i-emin suggested that Bosnian Muslims working in a bank should either find other jobs
outside the banking sector or find jobs within the bank which do not counter Shari’a norms.
The same was for jobs in the lottery and in micro-credit organizations. It is the opinion of the
fetva-i-emin that such jobs are only allowed in dire cases of necessity and when a Muslim has
no other sources of income.
From the few examples illustrated by the fetva-i-emin we can see that Shari’a religious norms
retain their validity in a secular. Although in some countries enforcing Shari’a law, eating in
public during Ramadan or failing to attend the Friday prayers may result in the state agencies
taking disciplinary measures against the individual, this is certainly not the case in Bosnia and
Herzegovina. In a secular state such as Bosnia and Herzegovina, it is upon the individual to
adhere to Shari’a religious norms. The failure to adhere to these norms is not subject to state
sanction but only to moral reprimand and Divine justice in the hereafter.
Closely related to Shari’a religious norms are Shari’a moral norms. Here we will look at a
few examples to illustrate how Shari’a moral norms are also in force in Bosnia and
Herzegovina.
A good example of a Shari’a moral norm is related to tobacco consumption. The fetva-i-emin
stated that, although there are different opinions among Islamic scholars whether the
consumption of tobacco is mekruh (lit. disliked) or haram (forbidden), it should be avoided
altogether because of the obvious harm it inflicts upon one’s health. 45 A second example of a
Shari’a moral norm is attending social events where alcohol is served. The fetva-i-emin stated
that a Muslim should not attend weddings or any other social event where alcohol is served
and where other activities contrary to Shari’a religious and moral norms are practiced.46 A
third example is related to a Muslim’s attitude towards other religions. The fetva-i-emin stated
that a Muslim is not allowed to curse or insult any other religion, especially that which has
some linkage with the notion of God.47
In all three cases, we see that the fetva-i-emin insists on the validity of Shari’a moral norms in
a secular state.
Shari’a moral norms also regulate inter-personal and gender relations. Here we will look at
two most commonly occurring situations where the domains of Shari’a moral norms can be
observed. A simple example is the question of physical contact between a man and a woman
that are not related through family or marriage. This is most often manifested through the
simple action of a handshake. Although there have been some claims coming from more
conservative Muslims that such handshakes are forbidden, the fetva-i-emin stated that if the
woman initiates the handshake with the simple intention of greeting a man, which is common
in Bosnia and Herzegovina, then it is allowed to shake hands with the woman since the
44
http://www.rijaset.ba/index.php?option=com_content&view=article&id=9337:posao-u-banci&catid=136:radzarada&Itemid=139 (last accessed 25 November 2010)
45
http://www.rijaset.ba/index.php?option=com_content&view=article&id=9025:konzumiranje-duhanskihproizvoda&catid=156:ahlakmoralporoci&Itemid=139 (last accessed 25 November 2010=
46
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8876:prisustvovanje-vjenanju-nakojem-se-toi-alkohol&catid=156:ahlakmoralporoci&Itemid=139 (last accessed 25 November 2010
47
http://www.rijaset.ba/index.php?option=com_content&view=article&id=2131:psovanje-svetinja-drugihreligija&catid=156:ahlakmoralporoci&Itemid=139 (last accessed 25 November 2010)
DRAFT VERSION: DO NOT QUOTE
rejection of doing so could be wrongly interpreted (as a sign of disrespect). 48 He however
advised that men should avoid this where possible.
Another example of a Shari’a moral norm pertains to the mixing of men and women who are
not related through family relations or marriage. The fetva-i-emin stated that an unrelated man
and woman are not allowed to mix alone in private; however, if a group of men and a group
of women is in question, the fetva-i-emin stated that, as long as they dress and behave
decently, it is allowed for them to mix.49
From this second set of examples aimed at illustrating the domains of Shari’a moral norms we
can conclude that Shari’a moral norms are also in force in a secular country. Although in
some countries enforcing Shari’a law, Shari’a moral laws are applied by the ‘moral police’
this is certainly not the case in Bosnia and Herzegovina. The duty to adhere to Shari’a moral
norms is upon the individual. It is the opinion of the fetva-i-emin that in case of non adherence
to any of the mentioned Shari’a moral norms, there are no possibilities of sanction, save for
moral reprimand, and Divine justice in the hereafter.
Case 2: Parallel application of Shari’a and secular state laws
Marriage
A Shari’a marriage by itself is not valid in Bosnia and Herzegovina, but Article 7 of the
Family Law of the Federation of Bosnia and Herzegovina explicitly states that religious
marriages can be conducted after the civil marriage.50 The Islamic Community has made it
very clear that its imams will not perform a Shari’a marriage ceremony if the couple has not
performed a civil marriage first.51 Although there have been cases, especially among some
Salafi groups, of performing the Shari’a marriage only, the fetva-i-emin of the Islamic
Community has stressed the necessity of performing a civil marriage first so that marriage
rights, especially for women, can be secured.52 Here it is interesting to note that another
Shari’a norm, that of no physical contact between the partners before marriage, is also
adhered to. The fetva-i-emin has recommended that the placing of the ring on the finger of the
maiden take place after the Shari’a wedding ceremony.53 A similar adherence to Shari’a
norms is noticeable in the fatwa regarding witnesses (shahid) in a Shari’a wedding ceremony:
the fetva-i-emin stated that only Muslims of good character and those who do not publicly
commit sins which expel a Muslim from Islam can be witnessed in a Shari’a marriage.54
'Rukovanje muškaraca i žene'
http://www.rijaset.ba/index.php?option=com_content&view=article&id=5695:rukovanje-mukarca-iene&catid=153:meudski-odnosikomsiluk&Itemid=139 (last accessed 25 November 2010)
49
'Miješanje muškaraca i žena'
http://www.rijaset.ba/index.php?option=com_content&view=article&id=5448:mijeanje-mukaraca-iena&catid=153:meudski-odnosikomsiluk&Itemid=139 (last accessed 25 November 2010)
50
Article 7, Porodični Zakon Federacije Bosne i Hercegovine.
51
Fatwa on 'Šerijatsko vjenčanje prije građanskog'
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8393:erijatsko-vjenanje-prijegraanskog&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
52
Ibid.
53
'Opčinsko vjenčanje' http://www.rijaset.ba/index.php?option=com_content&view=article&id=8215:opinskovjenanje&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
54
'Uslovi za svjedoke na šerijatskom vjenčanju'
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8158:uslovi-za-svjedoke-na-erijatskomvjenanju&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
48
DRAFT VERSION: DO NOT QUOTE
Another component of a Shari’a marriage practiced in Bosnia and Herzegovina is the mehr –
the bridal gift agreed upon before the wedding. According to the fetva-i-emin of the Islamic
Community the mehr is a contractual obligation and must be paid by the husband if he
initiates the divorce.55 On the other hand, if the wife initiates the divorce, then the husband
has the right to ask to be freed of paying the mehr, or having it returned in case he already
paid the amount.56 The duty to pay the mehr depends on the piety and moral responsibility of
the husband. However, there is also a possibility of using the state mechanism to achieve this.
This can be done by incorporating a stipulation into the civil marriage stating that
compensation (equivalent to the mehr) is to be paid by the husband to the wife in case the
marriage divorce was initiated by the husband.57
Although the Family Law of the Federation of Bosnia and Herzegovina clearly states that the
three necessities for marriage are that the partners are of different sex, that they voluntarily
accept marriage, and that their concurrence to marriage is stated before the municipality’s
book-keeper, the law does not place any restrictions with regard to the religious affiliation of
the partners.58 Although it is well known that Shari’a law allows for Muslim men to marry
Christian and Jewish women, and that the same is not the case for Muslim women, the Islamic
Community in Bosnia and Herzegovina forbids (to both Muslim men and Women) marriage
with partners of different religion. They based this decision on a 1938 fatwa citing that such
marriages are against the public interest (maslaha) of then Yugoslav/today Bosnian
Muslims.59 Hence although the secular law places no restrictions for marriage with partners of
different religions and beliefs, Bosnian Muslims wishing to adhere to this Shari’a norm do so
by avoiding marriage with non-Muslims.
Banking
Although Islamic banking in Bosnia and Herzegovina has still not been regulated by law,
within the framework of the Law on Banks of the Federation of Bosnia and Herzegovina60 the
Bosnia Bank International (BBI) has been practicing Shari’a compliant banking. The BBI is
based on a number of Shari'a principles. First, since Shari'a law absolutely prohibits interest,
the BBI bank does not charge any interest to its clients. It makes profit through profit margin
and through commercial or partnership deals with its clients.61 Second, since Shari’a
compliant banking forbids usury, the BBI practices a method known as murabaha. For
example, the usual procedure for taking a loan for purchasing a commodity is followed by a
down payment over a number of years along with the interest rates added to the original price
of the commodity. In Shari’a compliant banking, since interest is forbidden, the solution for
this is that the bank purchases the commodity on behalf of the client and then re-sells it to the
’Obaveza isplate mehra pri razvodu braka’
http://www.rijaset.ba/index.php?option=com_content&view=article&id=7316:obaveza-isplate-mehra-prirazvodu-braka&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
56
’Nedoumice oko davanja mehra’
http://www.rijaset.ba/index.php?option=com_content&view=article&id=6664:nedoumice-oko-davanjamehra&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
57
'Odšteta pri razvodu' http://www.rijaset.ba/index.php?option=com_content&view=article&id=5999:odteta-prirazvodu&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
58
Article 8 of the Porodićni Zakon Federacije Bosne i Hercegovina, http://djeca.110mb.com/PZFBiH.pdf
59
Fatwa on 'Brak sa supružnikom druge vjere' ('Marriage with a partner of different faith')
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8757:brak-sa-suprunikom-drugevjere&catid=149:bra-pravo&Itemid=139 (last accessed 25 November 2010)
60
Zakon o Bankama, ("Sl. novine Federacije BiH" broj 39/98, 32/00,
48/01, 27/02, 41/02, 58/02, 13/03, 19/03 i 28/03)
61
Muhamed Emšo, Načela na kojima počiva Islamsko bankarstvo I, BBI Academy, p.2.
55
DRAFT VERSION: DO NOT QUOTE
client on a pre-agreed higher price. The client down pays this exact (higher) sum over the next
period of years without any interest rate.62 Third, while the conventional approach to
financing is that it is backed by money or ‘value papers’, Shari'a compliant banking calls for
any financing to be backed by real value (i.e, property, gold reserves).63 Fourthly, the business
partners must share the profits or losses arising out of the enterprise in pre-determined
amounts. This principle is specifically practiced in business partnerships (mushareka,
mudareba).64 And lastly, investments should only support practices or products that are not
forbidden under Shari’a law (such as alcohol, casinos, pork).65
Apart from the Shari’a compliant banking system described above, solutions have been found
by the fetva-i-emin for Bosnian Muslims who opt to save money in banks which do not
practice Shari’a complaint banking. For example, if a person saves money in a bank and
receives interest fees on his savings, the fetva-i-emin stated that it is allowed for the person to
donate this sum earned (as a result of interest rate) to charity.66 A similarly approach was
taken by the fetva-i-emin regarding the taking of a loan from a bank which, during its down
payment, would be subject to interest rates. The fetva-i-emin suggested that in case of dire
necessity and if there is no other option then this approach is allowed.67 For those residing in
Bosnia and Herzegovina, in number of cases he suggested the BBI bank as a form of an
interest-free Shari’a compliant banking.68
Inheritance
The Law of Inheritance dating back to the era of the Federal Republic of Bosnia and
Herzegovina69 is still in force and although it regulates the patterns of inheritance, one of its
articles allows for inheritance to be regulated through a testament or that the inheritors
approach the court once they decide among themselves how to divide the property. It is within
this framework that Bosnian Muslims divide property in accordance with Shari’a law. As it is
already well known, Shari’a law considers it the husband’s religious duty to provide
maintenance for his family. From this arises the need for a greater start-up capital for a male
child compared to the female child, and thus the division of inheritance 2:1 (male: female).
This rule has been applied by the fetva-i-emin in cases where Bosnian Muslims sought to have
their property divided according to Islamic principles.70 However, the fetva-i-emin also stated
that in case parents only have daughters, then all the daughters would receive equal shares of
Dženana Čatić, Murabaha, available at
http://bbibanka.com.ba/web/index.php?option=com_rokdownloads&view=folder&Itemid=284&lang=en
63
Muhamed Emšo, Načela na kojima počiva Islamsko bankarstvo I, BBI Academy, p.1
64
Muhamed Emšo, Načela na kojima počiva Islamsko bankarstvo I, BBI Academy, p.2.
65
Muhamed Emšo, Načela na kojima počiva Islamsko bankarstvo II, BBI Academy, p.1.
66
‘Davanje kamatne zarade kao pomoci’
http://www.rijaset.ba/index.php?option=com_content&view=article&id=8593:davanje-kamatne-zarade-kaopomoi&catid=146:kreditkamatastednjaosiguranje&Itemid=139: (last accessed 25 November 2010)
http://www.rijaset.ba/index.php?option=com_content&view=article&id=6926:primanje-sredstava-prekobankovnog-rauna&catid=146:kreditkamatastednjaosiguranje&Itemid=139 (last accessed 25 November 2010)
67
http://www.rijaset.ba/index.php?option=com_content&view=article&id=6394:mesdid-nakredit&catid=146:kreditkamatastednjaosiguranje&Itemid=139 (last accessed 25 November 2010)
68
http://www.rijaset.ba/index.php?option=com_content&view=article&id=6490:oroavanje-uteenognovca&catid=146:kreditkamatastednjaosiguranje&Itemid=139;
http://www.rijaset.ba/index.php?option=com_content&view=article&id=5180:modaliteti-kupovine-narate&catid=146:kreditkamatastednjaosiguranje&Itemid=139 (last accessed 25 November 2010)
69
"Službeni list SRBiH" br. 7/80 I 15/80),
70
http://www.rijaset.ba/index.php?option=com_content&view=article&id=1773:kako-podijelitinasljedstvo&catid=148:nasljedno-pravo&Itemid=139 (last accessed 25 November 2010)
62
DRAFT VERSION: DO NOT QUOTE
inheritance.71 Regarding the testament, a Bosnian Muslim can divide his property according
to Shari’a law using a civil testament. Within the civil testament, the Bosnian Muslim is free
to divide his/her property according to Shari’a laws. Bosnian Muslims can also compose an
Islamic testament and this way allow a person (other than the biological inheritors) to inherit,
but the fetva-i-emin stated that a maximum of 1/3 of the inheritance can be allocated through a
testament.72 The fetva-i-emin further stated that more than 1/3 of the inheritance can be
allocated to an inheritor but only with the full consent of the remaining inheritors.73
Waqf
Within the Law of Obligations and Article 52 of the Islamic Community’s Constitution, the
establishment of religious endowments (waqfs) is made possible. A waqf is based on four
pillars: the donor or benefactor (waqif), the asset of endowment (mauquf), the beneficiary of
the endowment (mauquf alaih), and the expression of intent (sigah). All of this should be
stated in a document called a waqfnama.74 In Bosnia and Herzegovina, this document, once
compiled, is handed over to the Islamic Community. Parallel with this document, another
document, the Contract of Gift, needs to be compiled and handed over to a local court. This is
because the secular state does not recognize any religious-based document, such as the
waqfnama hence a document recognized by secular law needs to be compiled. The Contract
of Gift states that the endower (waqif) presents the waqf (endowment) as a gift to the Islamic
Community (endowee). Hence according to secular law, the waqf is treated as a gift from an
individual to the Islamic Community. The Islamic Community oversees and manages all the
waqfs in Bosnia and Herzegovina.
Adoption
According to Shari’a law, complete adoption is not allowed. Only caretaking or partial
adoption is allowed. This is because Shari’a law pays particular attention to the maintenance
of biological hereditary lines and complete adoption would disrupt this system. For this
reason the fetva-i-emin stated that a child cannot be completely adopted in the sense that the
child is given the same surname and the equal inheritance rights as the biological children.75
He suggested that the adopted child needs to be treated as protégée and cannot be regarded as
a legal inheritor. The protégée can still inherit but only by means of a testament left by this
caretakers.76
Article 91.2 of the Family Law of the Federation of Bosnia and Herzegovina stipulates that
adoption can be carried out either completely or partially.77 In the case of partial adoption, the
Shari’a legal norms regarding adoption can be fitted. This is because Article 118.1 of the
above mentioned law states that the adopters can decide on the name of the adoptee and that
the adoptee receives the surname of the adopter, unless the adopter decides for the adoptee to
71
http://www.rijaset.ba/index.php?option=com_content&view=article&id=6297:podjela-imovine-poerijatu&catid=148:nasljedno-pravo&Itemid=139 (last accessed 25 November 2010)
72
http://www.rijaset.ba/index.php?option=com_content&view=article&id=4870:obrazac-zaoporuku&catid=148:nasljedno-pravo&Itemid=139 (last accessed 25 November 2010)
73
http://www.rijaset.ba/index.php?option=com_content&view=article&id=4870:obrazac-zaoporuku&catid=148:nasljedno-pravo&Itemid=139 (last accessed 25 November 2010)
74
Article 52, Constitution of the Islamic Community
75
http://www.rijaset.ba/index.php?option=com_content&view=article&id=3468:usvajanjedjece&catid=154:roditeljidjecarodbina&Itemid=139 (last accessed 25 November 2010)
76
Ibid.
77
Article 91, ’USVOJENJE’, Porodični zakon Federacije Bosne i Hercegovine, p.15.
DRAFT VERSION: DO NOT QUOTE
retain his/her surname.78 Since the decision regarding the name and surname is left upon the
choice of the adopter and is not an obligation, the Shari’a legal norm of the adoptee retaining
his/her name and surname (provided that it is known) can be adhered to here. Likewise,
Article 119 of the same Law states that the adopter can exclude the adoptee or limit his right
to inheritance by way of a testament. Here too Shari’a legal norms can be fitted and the
adoptee can inherit by means of a testament compiled by his adopters.
Case 3: Cases where Shari’a law is not enforceable
Apart from the Shari’a devotional and moral norms which can be enforced by individuals
upon themselves without any obstacles and apart from the few cases where both Shari’a and
secular norms can be applied in parallel, in all other cases Shari’a legal norms are not
enforceable. This is because the secular state of Bosnia and Herzegovina has its own legal
system and its own set of positive norms which are in force. A few questions have been posed
to the fetva-i-emin regarding punishments under Shari’a criminal law for various criminal
offenses. We have selected a few examples of crimes in order to illustrate how these offenses,
which would normally be subject to corporal or disciplinary punishment by law enforcement
agencies in states enforcing Shari’a criminal law, are not punishable in Bosnia and
Herzegovina.
The first example we can look at here is apostasy (irtida) or the abandonment of Islam.
Freedom of religion and belief, including the freedom to choose a new religion and abandon a
previous one, is guaranteed by law in Bosnia and Herzegovina. As it is also well known,
apostasy or abandoning Islam, in classical Islamic legal thought was punishable by death,
especially if the apostate had switched sides and joined an enemy state. In the case of Bosnia
and Herzegovina, the fetva-i-emin very bluntly replied to a question on apostasy stating first
that views on apostasy differ among Islamic scholars, and second, that Shari’a criminal law is
not even applied in Muslim countries, let alone in Bosnia and Herzegovina. He added that any
further debate on this question was useless.79 Such an answer clearly tells us that in the view
of the fetva-i-emin, Shari’a legal norms which would in an Islamic state be under the
jurisdiction of the state, are not applicable in a secular state.
A second example of a hudud crime is zina. Adultery and premarital relations (zina) are
offenses punishable according to Shari’a criminal law. However, since these are not criminal
offences under the secular state laws of Bosnia and Herzegovina, such crimes are not
punishable. According to the fetva-i-emin, committing zina is a still a crime, and if the person
committing it is married, then it is a far more serious crime than if the person were
unmarried.80 The only option for an offender is to repent and seek forgiveness from God and a
firm decision not to commit such a crime in the future. This example illustrates that the
violation of this Shari’a legal norm is still a sin under Shari’a law, however, it is not a
punishable sin for Muslims living in a secular state.
A third example of a hudud crime is the consumption of alcohol. Alcohol consumption is also
a punishable offense according to Shari’a criminal law and the punishment for this offense in
Član 118, p.19.
http://www.rijaset.ba/index.php?option=com_content&view=article&id=1963:izlazak-izislama&catid=145:krivi-i-kazneno-pravo&Itemid=139 (last accessed 24 November 2010)
80
http://www.rijaset.ba/index.php?option=com_content&view=article&id=5766:o-kazni-zablud&catid=155:zabranegrijesipokajanje&Itemid=139 (last accessed 25 November 2010)
78
79
DRAFT VERSION: DO NOT QUOTE
a country enforcing Shari’a criminal law is whipping in public. However, in the case of
Bosnia and Herzegovina, there is no punishment for such an offense. According to the fetva-iemin, Bosnian Muslims who had consumed alcohol can only repent for their crime and seek
forgiveness from God.81 Here, we again see how the violation of a Shari’a legal norm is not
punishable in a secular state but nevertheless still remains a sin.
A fourth example of a hudud crime punishable in a country enforcing Shari’a criminal law is
theft. In the case of Bosnia and Herzegovina, however, the fetva-i-emin stated that a person
who confessed to committing the crime should return the stolen good, ask for forgiveness
from its owner, and repent to God.82 Just like in the previous examples, here we too see that
the violation of this Shari’a legal norm is not punishable in a secular state but nevertheless
still remains a sin.
Conclusion
From this expose we can conclude that Shari’a norms are of three kinds: religious, moral, and
legal. A bulk of these Shari’a norms are aimed at the individual and a vast majority are of
religious and moral nature. Only a small portion are of legal nature and even a smaller
portion, especially those aimed at securing public moral and safety, are for criminal offenses
and are under the jurisdiction of the state. In an Islamic state where Shari’a law is enforced by
the state, Shari’a religious, moral, and legal norms are in force.
In a secular state such as Bosnia and Herzegovina, as we have seen from the fatwas issued by
the fetva-i-emin, we can first conclude that Shari’a religious and moral norms are of utmost
importance to Bosnian Muslims and both types of norms can freely be applied by Bosnian
Muslims upon themselves, without restrictions, as part of their freedom of religion and belief.
Second, we can conclude that certain Shari’a legal norms such as those pertaining to
marriage, inheritance, adoption, waqf, and banking can be enforced parallel and without
conflicting with the existing secular state laws. The decision to apply these Shari’a legal
norms is upon the free will of the Muslim individual.
Third, we can conclude that although Shari’a legal norms pertaining to hudud crimes are not
enforceable by the state in the sense that they cannot be sanctioned by the state, violating
them still remains a sin. Here we can draw upon the conclusion reached by Fikret Karčić,
Bosnia’s leading Islamic scholar, and his division of Shari’a norms based on their religious
aspect (diyaneten) as opposed to their judicial aspect (qada’en). The religious aspect of a
Shari’a norm is always in force while its judicial aspect is only in force if there is an Islamic
government to enforce it.83
81
http://www.rijaset.ba/index.php?option=com_content&view=article&id=7483:alkoholiziranje-i-teinagrijeha&catid=155:zabranegrijesipokajanje&Itemid=139 (last accessed 25 November 2010)
82
http://www.rijaset.ba/index.php?option=com_content&view=article&id=4909:pokajanje-zakrau&catid=155:zabranegrijesipokajanje&Itemid=139 (last accessed 25 November 2010)
83
Prof.Dr. Fikret Karčič, ‘Islam u Sekularnoj Državi: Primjer Bosne I Hercegovine’ (Islam in a secular state: the
example of Bosnia and Herzegovina) in Religija i Sekularna Država (Religion and the Secular State),
Međunarodni simpozij (International sympozium), Sarajevo (BIH), 21-24 Oktobar/Listopad 2007, (Fondacija
Konrad Adenauer, European Abrahamic Forum, Međureligijski Institut u BIH, 2007), p.31.
DRAFT VERSION: DO NOT QUOTE
In the absence of an Islamic government to sanction the violation of Shari’a norms, the only
punishment that a Muslim violator can face is moral reprimand from fellow Muslims and, in
Islamic belief, Divine justice in the hereafter.
Recommendations
Recognizing Shari’a marriages
In a number of European countries room has been made for religious norms to be recognized
and respected by state laws. Among these we can mention the recognition of church marriages
in Italy, Spain, and France. We can also mention the recognition of all religious marriages,
including Church and Shari’a marriages, in a Catholic majority – Croatia. In respect to this,
and following the European Convention on Human Rights stating that all religions should be
treated equally, it is in my opinion that if Church marriages are already recognized by a
number of European countries, then Shari’a marriages (only the first marriage, not polygamy)
conducted in mosques should also be recognized.
Enacting laws for Shari’a compliant banking
A second recommendation would be to enact laws to make Shari’a compliant banking easier.
As it is well known, Shari’a compliant banking is already practiced by some leading world
banks including Deutche bank and HSBC. Enacting a law would make this type of banking
easier.
Introducing Shari’a arbitration services
As it is well known, a number of countries in the West have introduced Christian mediation
services to solve marital, commercial, and other types of problems. Such a practice, based on
the free will of parties, has shown itself compatible with secular state laws in countries such
as the United States. Not only is burden taken off state courts in solving such cases, but
involved parties can also benefit from the belief that the resolution of their conflicts has been
Divinely blessed.