A Secular Persepctive on Shari'ah in the West

ISLAMIC SHARI'AH IN THE WESTERN WORLD

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.