The FGRT project builds on several years of original research, which benefited from the research infrastructure that was established and funded by two three-year NPRP grants. This project consists of a bibliographic component and a research component. The bibliographic component will maintain and expand the existing physical collection and electronic database of resources, which includes records of more than 4000 bilingual (English-Arabic) scholarly resources. The research component will utilize these and similar resources in exploring the impact of new genetic and reproductive technologies on the Islamic conceptualization of the nuclear family in terms of both the (re)formulation of relevant rules as well as the administration of these rules. This requires thorough analysis of three main genres and perspectives: Islamic ethico-legal discussions both in the pre-modern and modern periods; modern positive legal structures and legislation; and the modern social scientific perspective.
Delfina Serrano Ruano
Delfina Serrano Ruano is a PhD tenured researcher at the National Council for Scientific Research (CSIC) in Madrid, Spain. She is a member of the research group “Islamology: past and present of the shari`a through its textual tradition.” Results of her work have appeared in both Spanish and international academic journals like: Al-Qantara, Islamic Law and Society, Der Islam, Hawwa, and Bulletin d'Etudes Orientales.
Delfina’s contribution to the FGRT project examines ongoing discussions about the perceived conflict between modern medical technologies –DNA tests in particular- and the mechanisms traditionally admitted by the sharī`a to establish paternity, in the light of classical Islamic legal discourses (fiqh) on filiation and the family. This work is circumscribed to a number of Muslim majority countries where civil status and family issues are now governed by codifications of the relevant provisions found in pre-modern manuals of Mālikī jurisprudence. Fatawa issued by the local ulema, legal elaborations in fiqh manuals, statements by the official bodies in charge of religious affairs in each country, legal codes, notarial practice, reports in the press and the media, information in blogs and web pages, and secondary literature in Arabic will be examined, adding a historical philological approach to the sociological, anthropological and Western legal perspective with which the subject has been analyzed so far. The relationship between contemporary bio-medicine and traditional ways to establish paternity and filiation will also be examined in connection with the issue of pregnancy since its legal duration is today fixed for a period between six months and one year, contrary to the much longer limits admitted by classical fiqh (up to five years in the case of the Mālikīs).
Delfina’s interest in the role of biology for the definition of the family and the ensuing rights and obligations developed out of her work on classical Mālikī doctrine and practice on zinà (unlawful sexual relations) which led her to reflect on the challenges posed by DNA tests to the rationale behind the harsh punishments applying to zinà (i.e. preventing the “mixing of genealogies (ikhtilāṭ al-ansāb)”. From the punitive and dissuasive dimensions of the relevant jurisprudence, her attention shifted to jurists’ strategies to foster the family and social stability by accommodating transgression and by balancing the harshest consequences of the very moral and legal order devised by them. Following this thread she have more recently concentrated on denial of the paternity of a child through imprecatory oath (li`ān) following an unproven accusation of adultery of a man against his wife.
Recent reforms in three countries belonging to the area of influence of the Mālikī school of law –Morocco, Tunisia and Algeria– represent the boldest steps taken so far in the adjustment between biological and legal paternity on the one hand, and between sharī`a’s legal and moral vision of the family and international standards in women’s and children’s rights, on the other. However disparate the modern so-called codifications of the sharī`a are from classical fiqh manuals in their methodology, contents and scope, their authority continues to rely on their apparent consistency with the latter rather than on the power of the state to promulgate, implement and amend these codes. Religious arguments are wielded to hamper reform and explain resistance to its application by judges, or are thought to slow down the assimilation of change by society at large. Reform and change, in order to be acceptable, have to be grounded in religious arguments (i.e. Mālikī interpretations of religious orthodoxy and of sharī`a compliant social conduct) and textual precedents. Yet the sharī`a position regarding the family is at times subject to competing interpretations that do not always represent the actual array of options and possibilities provided by Mālikī legal manuals. Meanwhile, in the above mentioned countries, the involved actors’ social predicament and right to speak in the name of the sharī`a largely derives from publicly exerting the role of custodians of the Mālikī legal tradition that flourished in the temporal and spatial context on which most of Delfina’s work on Islamic legal doctrine and practice has focused.
In view of the political, legal and social developments at stake, Mālikī literature provides a specially interesting vantage point to look for clarification, illustration and inspiration regarding the need to accommodate change while maintaining the ethical ideal of the sharī`a.