Guaranteed Asymmetries? The Legal Concept of the Kafāla
My research centers on the concept of kafāla in a legal historical perspective. The term kafāla refers to a guarantee or surety-bond in which a surety secures (e.g.) another person’s appearance in court or the fulfilment of a principal debtor’s obligation. As a legal concept, kafāla was known to Islamic law since the 2nd/8th century. It witnessed two interesting twists in modern states’ civil legislation that raise questions regarding the asymmetrical contractual relationships it establishes. Starting from the late 1950s, in some North African countries kafāla became an institution under which tutelage for children was organized, creating a contractual relationship between a donor (the one who offers the kafāla) and a minor, of whose financial protection or moral or physical guardianship the donor takes care. In Jordan, Lebanon, and the GCC (Gulf Cooperation Council) countries, by contrast, in the 1960s the kafāla has been established as a legal tool for labor migration control via sponsorship (the so-called kafāla system). Under its terms, all foreign laborers are required to have an in-country sponsor who is responsible for them, their visa and their legal status. This sponsorship system renders migrant workers highly vulnerable and dependent upon their sponsor, because even though work contracts exist, they are often not enforceable. Thus, both of these modern forms of the kafāla facilitate highly asymmetrical relationships in which one party exhibits a high degree of vulnerability. The project focuses on Muslim majority societies, particularly Egypt, Bilād ash-Shām (historical Greater Syria) and, to a lesser extent, the Gulf. It examines both classical and modern legal discourses on the guarantee in Islamic law in order to explore how they affect relationships of dependency. Tangibly, the project studies (Muslim) jurists’ interpretations of the kafāla in contemporary Middle Eastern states as an instrument for child tutelage and labor migration control. Guaranteed Asymmetries? The legal concept of the kafāla examines the jurists’ understanding of kafāla with a particular focus on what this specific form of guarantee tells us in reference to asymmetrical relationships. The dissertation aims at understanding the relation between legal texts and social relations, thus asking how local, regional, and international discourses sediment, or settle, into legal discussions of the kafāla. With Global Labour History and the Semantics of Slavery as a theoretical background, the project, besides discourse analysis, applies Intersectionality as a main method. Studying various axes of inequality among the parties to a kafāla, such as religion, race, or gender, it aims at understanding how asymmetrical relations were conceptualized by jurists in theory and practice. Particularly, the project investigates how this changed with the advent of modernity and globalization and their specific consequences for the legal sphere of Islamic societies.