Saturday, February 25, 2012

What is shari'a?

On Thursday I went to a theater evening produced by a friend, the second time I've been to a series of productions by this theater on Islam, aimed at helping non-Muslims and Muslims understand (and love!) Muslims. Both times, the audience is a great mix of people of all backgrounds, and there is a general sentiment of great love and acceptance (even though they may not understand everything).

This time it was an evening dedicated to explaining and exploring the idea of  shari'a. No thanks to mainstream media and hardline scholars like Haitham al-Haddad who speak without nuance and respect, many people get the idea that Muslims are out to conquer Europe and ultimately creating an Islamic state that will enforce stoning and go to war with Jews. One of the ways they try to do this is by slowly trying to implement shari'a as an addition or replacement of secular common or civil law.

Sharia4Belgium (I'm not shortening the title, the number '4' is actually part of their name), a Muslim group that recently caused some media uproar by storming a Dutch TV show dressed in traditional garb, waving black flags, and distributing eggs during a debate between Irshad Manji and Tofik Dibi, who both consider themselves Muslims. The incident is discussed here.

Irshad and Tofik were on the show to discuss about Muslims who are not seen as 'real' Muslims because of for example, being gay, or not believing in some of the more aggressive aspects of conventional Islam (and in my opinion, not Islamic at all, such as flogging people for drinking beer or not fasting, or stoning as a punishment for apostasy or adultery). But some members of Sharia4Belgium came all the way from Belgium to spit at Irshad and try to chase Tofik off-stage.

On the site of S4B itself, they see shari'a  as the 'law of God, designed for all ages, places and people to the end of time'. My own understanding of shari'a is also this, but I'm afraid that's where our common understanding diverges. While I refer to principles of shari'a such as justice, to be followed by everyone, everywhere, and always, they refer to one of many models of shari'a as the one they want to universalise -- models that were elaborated upon in the 7th to 8th century AD.

During the production, the host (an articulated and educated Islamologist) emphasised that shari'a is not written down as a book. There is no fixed interpretation, but instead encompasses specific and general principles from the Qur'an, elaborations from hadith, then all the different interpretations as elaborated by (male) scholars of fiqh (jurisprudence) through qiyas (analogy) and ijma (consensus), and finally, colonial civil law (often, British or French). A professor from Leiden also pointed out that much of what passes for shari'a law in Egypt is simply British and French laws which did not contradict principles of shari'a.

Confused? For example, let's look at laws governing Muslim marriage, divorce and death in Singapore and Malaysia. Both started out rather similarly, having British common law as its model. The English word for 'divorce' was replaced by the Arabic word, talaq. 'Divorcee' or 'widow' was replaced by the Malay word janda. 'Waiting period' was replaced by iddah, and the length of iddah is not even specified in law (the clause in Part VI.97 says this 'shall be calculated in accordance with the Muslim law').

But there are also other clauses that state certain things specific to some madhhab (schools of thought named after its corresponding main scholar) such as a bride requiring a guardian. This is not required in the Hanbali Hanafi school of thought, and the shari'a law of countries like Afghanistan. The shari'a family code in Morocco, the Moudawana, has also undergone several changes over decades to reduce the asymmetries of responsibilities and obligations of husbands and wives.

In other words, shari'a is implemented with different models in different countries. There are plenty of laws in the common law of non-Muslim countries which can be considered shari'a compliant, such as husbands paying alimony to their wives. Muslims want this, the country's common law has this, so what's the difference? Also, did anyone notice that the first laws to get a separate and parallel system involves women (marriage, divorce, inheritance)? Why have calls for shari'a never first targeted banking?

One man in the audience on Thursday asked "What can shari'a add to the current law in the Netherlands?" But meneer, it would not apply to you in the first place. It would apply to Muslims in "Western" countries who insist on having shari'a law for their marriages. Is it because the law of their land is contradictory to shari'a? Is there no mechanisms (e.g. wills, pre-nuptial agreements) to get what you want? And which model of shari'a do you want? Which aspects of life do you want governed? 

In some Malaysian states, men can be arrested for not going for Friday prayers, and in Aceh, women can be flogged for kissing. When law starts to regulate morality top-down, can you ever be sincere in doing anything anymore, or learn to self-regulate for that matter?

In short, the principles of shari'a (e.g. justice) are timeless, but the models are limited. Some rulings were created in the 7th century, some rulings are from the traditional laws of the land (e.g. stoning being an ancient practice) which are brought over to other countries under the guise of it being Islamic (e.g. stoning introduced to Aceh). I am very wary of Muslims in secular countries calling for shari'a because it often means transplanting another country's laws.

I think groups like Shariah4Belgium have to address underlying reasons for the social marginalisation (e.g. discrimination, lack of access to higher education and employment) of their members, instead of promoting the idea of an 'Islamic state'. This idea is often vague, and is often claimed to exist when there are physical manifestations of piety such as beards, turbans, keffiyehs, headscarves.

Fouad Belkacem, leader of Shariah4Belgium

The word shari'a appears in the Quran only 5 times, in 4 different forms. The root, sh-r-'a connotes a clear or visible path or law. God ordained for us a way of living that was the same for all other prophets before us (42:13, 42:21, 45:18), but there were certain laws that are specific to each group (5:48).

One idea that really put my own thoughts about shari'a into words was the concept of 'bottom-up' shari'a. Instead of a top-down approach (a la Iran) where Islamic law is imposed, a bottom-up approach involves trying to get people to behave in ways that embody the Qur'an -- how God wants us to be.

For example, that our actions should not disrupt the lives of others, but instead to help others ('amal saaleh). We help in soup kitchens, we teach children, we help those who need help. That we should create room for others, or create opportunities to help others progress (abraar). We give space for others' opinions, we consult, and we work together. 

Shari'a, as the law of God, does not exist when there is not enough physical and ideological space for everyone, it does not exist when those who are marginalised do not receive the help they need, it does not exist when people who believe in God find themselves threatened and insulted; but it exists when everyone starts doing good.


qrratugai said...

I love this blog! So glad I came across it!

I agree with your view on the Shari'a, and I think the same people who often claim to support it and fight for it to become the law of any nation they're in or are from miss the bigger picture. As you rightly said, the Shari'a upholds concepts like justice (and I'd add modesty, tolerance, respect, unity, etc.), but that doesn't mean it has a strict model for each of these ideas. And if the Shari'a is indeed to serve all of humankind (at least the Muslim humankind), then we need to give it space to grow and be interpreted and explained in each society, each time, each context because everyone's not the same, all situations are not the same, and it's therefore illogical, and I'd add contrary to the expected outcomes of the Shari'a, to demand that everyone follow the Shari'a everywhere without having an understanding of what exactly it is that we mean by Shari'a.

"But there are also other clauses that state certain things specific to some madhhab (schools of thought named after its corresponding main scholar) such as a bride requiring a guardian. This is not required in the Hanbali school of thought..."

I hope I'm not wrong here, and I've looked everywhere just now to make sure I'm not wrong in stating this, but the Hanbali school of thought requires a wali and mandates that the marriage is invalid without a wali for the woman. Unless, of course, you meant the Hanafi school of thought, which doesn't require a wali for a woman.

Sya said...

Dear Qrratugai,

Thank you for the lovely comments! Indeed I made a mistake -- I meant Hanafi, not Hanbali! I will correct it :)

I took some time to peruse through your blog too, and I like the stuff you write about as well. Keep writing and let's learn from each other, inshallah.


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