Saturday, March 15, 2008

Shariah laws in the west

Shariah laws in the west
Asghar Ali Engineer

The article follows my comments:

Sharia guidance is helpful in personal life in terms of following the religion for oneself and finding guidance in how to: pray, fast and figure out what portion of your income is to be paid in charity etc. Let’s call this private domain and Sharia code is a good source to give the logistics and it works fine.

When it comes to public domain that is dealing with a person other than you, justice is the core value of Islam, and our civil laws are just and fair to take care of that part of the life. In the public domain our Civil laws are good replacement for Sharia, particularly because the civic laws are applicable to all Citizens of the nation fairly.

Sharia laws are derivatives from Qur’aan and the sayings of Prophet Muhammad on living a life of Justice and peace. As with every group, the extreme interpretations by certain institutions and individuals, and their perpetuation have become contentious. The conflicts are in the areas of divorce, apostasy and women, where fine tuning of our understanding is needed.

The basis for Qur'aan is justice, when there is justice people feel secure and live in peace, harmony and prosperity. As far as the Sharia in public life is concerned, our civil laws are just and are good for every one. The rest of the Sharia is about one's devotion to God and how it is carried out, and it usually remains in the private domain.

American and Canadian Muslims value and trust our justice system and feel comfortable with our civic laws to take care of the public issues, meaning issues that affect another individual other than oneself.

Mike Ghouse
# # # '

Asghar Ali Engineer

(Secular Perspective March-1-15, 2008)

As the population of Muslims is increasing in western countries like
U.K., USA, Canada etc. the demand for applying Shari’ah law to Muslims
is being voiced. The Government of Canada was toying with the idea of
enforcing Shari’ah law in the state of Toronto but none other than
progressive Muslim women and men themselves opposed government’s
intention to apply Shari’ah law and in view of stiff opposition by these
Muslims, government gave up the idea’

Now comes the news that the U.K. Government may also think of applying
Shari’ah law to Muslims of U.K. the Archbishop of Canterbury has also
favored this measure. Rowan Williams, the Archbishop is reported to have
said that the adoption of some aspects of Shari’ah law in the UK seems
unavoidable. May be Archbishop is extending hand of friendship towards
the Muslim minority which is of considerable size by now and is seeking
some kind of accommodation with Muslim leaders. Or, may be he is under
pressure to approve of application of Muslim law.

The BJP in this country wants Muslim law to be abolished although Muslim
majority in India is much greater in size than in the UK. At one time it
was unthinkable for Muslims of UK to have Islamic law applied to them
but fast increasing population is creating pressure on the government.
Though as yet we have not heard any opposing voice from progressive
Muslims of UK, it may be matter of time before it is heard.

If Islamic law as codified by Muslim jurists of medieval ages is
applied, it will create more problems for Muslim women. Our ‘Ulama voice
stiff opposition to any change in the law in keeping with the Qur’anic
spirit, it can certainly better the modern laws pertaining to marriage,
divorce and property rights. But problem is our jurists and ‘ulama are
too rigid to agree for any re-thinking even in the sprit of Qur’an.

Also, as rightly pointed out by some commentators there is no single
law. Islamic law is different for Muslims of different sects. Even Sunni
Muslims are divided into various legal schools like Shafi’I, Hanafi,
Maliki and Hanbali and in U.K. there are Muslims, following all these
schools besides Shi’ah Ithna ‘Asharis and Isma’ilis. Though marriage may
not be much of a problem but divorce and inheritance laws can cause
major problems in these different schools of law.

Though men will certainly gain but Muslim women will be great loosers,
if one goes by traditional Shari’ah laws. The Qur’anic provisions were
interpreted in medieval cultural ethos and women, in that cultural
milieu was far from equal. In western countries discrimination on the
basis of gender is a major issue and educated Muslim women mainly
complain against discriminatory practices in the extant Shari’ah laws.

In all Muslim countries there is movement for change in existing Shari’ah
laws and particularly women are demanding change and progressive men
conscious of gender equality support them. If Shari’ah law is applied in
countries like UK, will it be applied as it exists, say in Sunni schools
or it will be reformed? If it is reformed who will bring about reforms?
In India Muslim women are against oral divorce pronounced in one breath
and ‘Ulama oppose any such change. It is ultimately secular courts,
which are rejecting triple divorce insisting on proof for divorce.

The Muslim women in India are also pressing for standard nikahnama which
is perfectly Islamic as marriage is contract in Islam and yet ‘Ulama are
not agreeing to nikah contract favoring women in Iran too, there is
women’s movement and many women have been condemned to death by stoning
on charges of adultery and the Islamic jurists are not prepared to
effect any change in traditional Ithna Ashari law prevalent in Iran.
Those women demanding reforms have been sent to jail. There is also muta’
marriage in force in Iran which again favors men.

In Saudi Arabia there are much severer problems and women cannot even
enter into business deal directly without a male member apart from being
forbidden to drive vehicles. They cannot vote in elections also.
Recently municipal elections were introduced in Saudi Arabia but women
were not allowed to vote despite demand from women.

I have met many ‘ulama in UK. They are as conservative as in Islamic
countries, perhaps even more in the alien environment of UK and other
Western countries. If any attempt is made to apply Islamic law in UK it
will trigger off bitter controversy between Muslims and non-Muslims, on
one hand, and between Muslims and Muslims, on the other. The Muslim
women are bound to protest.

Large number of Muslims is from various Arab and African countries with
extremely conservative background and if ‘ulama oppose any change in
Muslim law or its selective application and these conservative Muslims
will fully back up these ‘ulama. Obviously, progressive Muslims wanting
change in Shari’ah law will be outnumbered and the Government will have
to listen to the conservatives.

Though there is provision for re-thinking in Islamic law called ijtihad,
to this day ‘ulama never allowed any one including one of their own
tribe, to resort to ijtihad. An ‘alim of standing of Muhammad ‘Abduh in
Egypt in late nineteenth century and early twentieth century had to face
stiff opposition for his advocacy of change and re-thinking of Islamic
laws. Though he rose to the high status of grand mufti of Egypt, yet he
could not bring any change.

When the then President Sadat’s wife Jehan Sadat used her influence to
introduce a law by interpreting a verse of the Qur’an that a marriage
would be registered only if husband bought a house in the name of his
wife, it was removed immediately after the assassination of Sadat. Hosni
Mubarak, the present president of Egypt also faced stiff opposition from
the ‘ulama of al-Azhar when he introduced a bill empowering women to
obtain khula’ (women’s right to obtain divorce without husband’s
consent). He had to agree to a compromise formula before he could get
the law passed.

This is the state of affairs in Islamic countries where reform should
have been easier in totally Islamic milieu. How difficult it would be in
non-Islamic countries, one can well imagine. In India where there are
largest number of Muslims next only to Indonesia, ulama have opposed any
change saying it is Muslim minority country and non-Muslim government
has not right to interfere in Islamic laws.

When the Supreme Court of India granted maintenance to an aged woman
beyond iddah period, the ‘ulama, as well as Muslim political leaders,
raised storm of protest and ultimately Government of India reversed the
judgment of the highest court by enacting a law restricting maintenance
within the iddah period. Thus UK Muslims will also face these dilemmas
once Islamic law is introduced in UK or for that matter in any European
and other western countries like USA or Canada.

The ‘ulama consider formulations of medieval ages sacred and even
divine. For them the Qur’anic concept of justice is secondary to men’s
authority over women. Men’s right to divorce is considered as absolute
whereas women’s right is constrained by men’s consent. Thus it is men
who has authority to divorce although there is no such authority given
by the Qur’an to men.

The ‘ulama consider women as weak and emotional and incapable of taking
proper decision and hence only men should take crucial decisions though
women could be consulted. By the same reason they also think that a
woman should not become head of state as it would be disaster for the
state. This view is supposedly based on one hadith authenticity of which
has been questioned.

Today there is great need for re-codification of Islamic laws and if Qur’anic
spirit is followed in re-codification of Islamic laws in the areas of
marriage, divorce and inheritance, these laws will be as good as modern
laws based on the concept of gender equality and also much of the
differences between various madhahib (schools of law) can be minimized.

These differences between various schools of law are precisely because
of differences of opinion between jurists as also due to impact of local
conditions, customs and traditions. Despite these differences all the
jurists of the time were agreed on one thing: women are sinferior to men
in every respect though there is no such assumption in Qur’an at all.
This assumption of inferiority of female sex was introduced by the
‘ulama and jurists who were themselves product of patriarchal ethos.

The Qur’anic injunctions on personal laws have no such direct or even
indirect assumption and hence these injunctions prioritize women’s
rights. However, the right-based discourse for women could not be
accepted by patriarchs of the time even though it was divine and hence
Shari’ah laws were based more on patriarchal opinions and divinity was
subjected to patriarchy.

Gender equality, originally found in Qur’an and lost in medieval
patriarchal ethos has to be rediscovered buried in Qur’anic revelation
and then only gender justice can be restored.

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