open Democracy News Analysis - Sharia: practice of faith, politics of modernity , Sami Zubaida - Comments

Cole_2233 on "Sharia: practice of faith, politics of modernity "

Cole_2233 — Thu, 19 Feb 2009 19:16:34 +0000

What is almost embarrassing - is what has been left out - where in pious Egypt - Muslims are not permitted to leave Islam and apostates are tortured and imprisoned under the area of Shari'a which overrides - any civil laws - Coptic Christians are regularly harassed and beaten - and the Baha'i fare little better.

In Iran - in Sept 2008 their Parliament voted on and passed a law to put to death any one who leaves Islam.

- This is in line with the four schools of Islamic jurisprudence (of Shari'a Law) - who call for the death penalty for those wishing to leave Islam.

This conversation/article almost feels like I could image little Ayesha - felt when the old battle hardened Muhammad entered her - bringing along with it - everything about the Islamic world - in the one little thrust !!

Shari'a law can be said - to be an intrusion - or a forced marriage - to Western free and Democratic society!

The aim of the pious Muslims - as the writer has said - is to see Shari'a or God's Law ultimately in government - (of the entire world - is what he left out!)

If British Law brings in a Sharia aspect - with its legal decisions left to a bunch of bickering Imams - negotiating and wrangling over how best enter the Islamic paradise - it would most certainly be seen as the downfall of a great legal system.

I see the writer has written several books on Islam - I wonder why you don't see Christians in the Arab world freely writing and discussing their ideas - which may be of an opposing view ??

Would his beloved Shari'a have anything to do with this?

His best argument is - the Jews have it - so why can't we !!

The aim of Shari'a is not equality - as you can see by the way non-Muslims are treated under it - its aim is subjugation.

Stephen West on "Sharia: practice of faith, politics of modernity "

Stephen West — Thu, 29 May 2008 08:35:18 +0000

An interesting article, but it misses the key point in this debate,
which no amount of 'understanding' of Sharia will change. The British
state is run using British law, which has a long and distinguished
history and holds together one of the oldest democracies in the world.
Britain has many ethnic minorities who chose to live within it. The
British state has no burden on it to legitimise or endorse any of the
foreign legal codes or practices of these peoples. Tolerance is a
virtue, but not to the extent that you subvert your own laws.

If you
wish to live under Sharia then live in such a country. French citizens
are not subject to French law in the the UK, the same for Indians,
Chinese, Russians, Mexicans, Iranians. It is the same for every
nationality and other religious group in the country (and despite what
you say regarding Jewish law, no other code has any legal standing in
the UK courts, period); it would open a Pandora's box if any movement in
this direction was taken.

Furthermore, whilst it is all very well
to say that Islam is a religion of peace that can help humanity, you
need to be wearing heavily rose tinted glasses to sustain that notion
after a cursory glance at world affairs. Whilst I appreciate the desire
for a moderate debate ( a laudable aim), that debate must include the
realities of what political Islam has brought into the world - suicide
bombings and a global wave of terrorism. I certainly don't see this
humanity saving version of Islam in the Middle East - I see Hezbollah
and the Taliban. Also note the murder of Dutch citizens opposed to
Islam, the global Islamic outrage regarding satire of Islam that
resulted in flag burning and threats of murder, 911, 7/7, Madrid- the
list goes on.

I'm afraid that followers of Islam need to get their own
house in order. To refer back to the poster, that 'constructive debate'
must be had within Islam first.

I am also disgusted at Mr
Sala's response to a secular critique of his religious viewpoint. I
have very little time for people who accuse their detractors of being
racist, it is a crude and slanderous snub that says more about the
accuser than the accused.

Sadiq wrote:

May I bring to the notice of Jim and those who contribute to his line of thinking:

1) Should we reject religion (any religion) because religions are
being used as a tool for manipulation and not as a source of guidance?

2) If we cannot prove religion to be a scientic entity, and science
does not approve of dogma etc, does science provide basis for various
human phenomon such a 'homosexuals' to be as per nature's scheme and
bonafide for humanity?

Religions are rejected in Britain for many reasons, the key one I think being a rejection of the very idea of a god, heaven or hell. The fact that they are used to legitimate terrorism is a horrific by-product of religion, but only one of the reasons the UK is and will remain a secular country.

With regards to the use of science to
comment on morality. Science does not offer
moral guidance, you are correct. But as above posters have alluded to,
using 7th century texts doesn't seem like such a great idea either to
secular Britain. If you are not religious, please understand that these
texts have no validity as a moral code either!

issuess on "Sharia: practice of faith, politics of modernity "

issuess — Tue, 22 Apr 2008 18:26:11 +0000

"How hypocritical when people of faith (all faiths, not just Islam) constantly condemn infidels, western modernity, secularism, evolution, homosexuality, feminism, etc., then cry intolerance when their beliefs are criticized, followed by the painting of their critics with the hateful brushstrokes that Mr. Sala uses so easily."

No doubt faith and religious issues are still sensitive topics in a world where people are free to express their opinions and views. The life of people are meant for improvement and as we are are undergoing such a process, we should as well be more open to criticism and learn to adapt to such modernization and go with the flow. Mr Sala shouldnt be all too defensive as it is merely views and comments.

Leon

jim willmot on "Sharia: practice of faith, politics of modernity "

jim willmot — Wed, 12 Mar 2008 16:20:12 +0000

Mr. Sala also called me a racist and an Islamaphobe. Both accusations could not be any further from the truth. I consider myself a member of the human race (not a particular race) and I have never considered myself superior to anyone based on my genetics. And to say I am afraid of Islam is not true either...that's why I am willing to put my name to my criticism of Islam, as I do to my criticism of the magical thinking of all religion. Faith (and Sharia Law is faith-based) is the problem, not the solution. How hypocritical when people of faith (all faiths, not just Islam) constantly condemn infidels, western modernity, secularism, evolution, homosexuality, feminism, etc., then cry intolerance when their beliefs are criticized, followed by the painting of their critics with the hateful brushstrokes that Mr. Sala uses so easily.

Bob Philbin on "Sharia: practice of faith, politics of modernity "

Bob Philbin — Wed, 27 Feb 2008 02:53:09 +0000

Sorry to report: Mr. Sala offended me with a racial slur. He accused me of racism. My response to his offensive comment has disappeared from this page without any communication to me. So I will no longer comment on this website. I don't consider it a legitimate forum for intelligent debate.

Thank you,

Bob Philbin

aeionline_1 on "Sharia: practice of faith, politics of modernity "

aeionline_1 — Tue, 26 Feb 2008 10:48:24 +0000

I appreciate Bob's objection the line:

"The theological logic of the sharia is that God had revealed his commandments for a pious life, . .."

It is not just 'pious life' but the Divine Scriptures provide guidance which tend to regulate the life as a whole, without giving a 'quick-fix' solution just to become pious. Had been so, Prophet Mohammad (MPBUH) would not repent seventy times daily, though he was absolutely sinless. Only God knows who is a pious or not! And only law, just any law, cannot make anyone pious.

May I bring to the notice of Jim and those who contribute to his line of thinking:

1) Should we reject religion (any religion) because religions are being used as a tool for manipulation and not as a source of guidance?

2) If we cannot prove religion to be a scientic entity, and science does not approve of dogma etc, does science provide basis for various human phenomon such a 'homosexuals' to be as per nature's scheme and bonafide for humanity?

May I sugges them to read, at least the introduction of (28 pages) "The Spirirt of Islam", written in 1898 by Justice Ameer Ali, the first Indian to sit as a Law Lord of the Privy Council . The introduction covers, more or less, the following:

The continuity of religious development
Dispersion of the races - Fetishism and pantheism
The Eastern and Western Aryans
The assyrians - Babylon and the Jews
Hinduism
Zoroastrianism
Jodaism
Christianity
Gnosticism
Manichaeism - degradation of earlier creeds
Thribes of Aabia
.....
A necessity of religious develoment
-----

The following chapters of the book give most authentic information:

The Ideals of Islam
The religious Spirit of Islam
The Idea of Future life in Islam
The Church Military of Islam
The Status of Women in Islam
Bondage in Islam
Political Spirit of Islam
The Political Divisions and schism of Islam
The Literary and Scientific Spirit of Islam
The Rationalistic and Philosophical Spirit of Islam
Idealistic and Mystical Spirit of Islam

May I add here that most of the 'Shariah Law', evovled in post 661 period during the rule of Muslim rulers who are also called Caliphs but almost of of them remain in hot pursuit of finding legitimacy for their usurped power through hereditary success which has NO provision in Islam. Thereforefore, whatever ills are attributed to Islam are not that of Islam itself but because of those usurpers of power and this practice contrinues.

I am personally not qualified and competent to preach Islam, it cannot be preached to others unless rightly understood in the first place. However, I do beseech that Islam must be studied in the right earnest becasue it is only the Islam, not only a religion but a complete code of life, which can rescue us humans - an egalitarian humanity society on earth.

My Salute to Reverend Dr. Rowan Williams - The Archbishop of Canterbury, Dr. Tutu and all those who seem willing to appreciate what good Islam has in store for the humanity.

Kindest regards. Sadiq

aeionline_1 on "Sharia: practice of faith, politics of modernity "

aeionline_1 — Tue, 26 Feb 2008 09:32:32 +0000

"....the paradox is that from the Western perspective we frequently see the Muslim world as powerful, aggressive, coherent and threatening. From the other side of the world, the Muslim world, or a great deal of it sees us as powerful, coherent and threatening in very much the same way. Now, when those are the perceptions, you don't have a very fertile ground for critical, relaxed, long-term discussions of some legal and cultural issues, and I think that's a question that can't really be answered without looking at those larger, global, political questions."

...."Again, as a number of Muslim scholars have pointed out, the prescriptions about polygamy in theQur'an are permissive, not mandatory."

"if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment"

--------------The Archbishop of Canterbury, Dr. Rowan Williams

salahuddinc on "Sharia: practice of faith, politics of modernity "

salahuddinc — Mon, 25 Feb 2008 18:54:14 +0000

Mr Zubaidah has written a knowledgeable and intelligent summary of some key issues around sharia and his plea that there is some informed debate about possibilities within this discourse with regard to a multi-cultural and multi ethnic UK is to be endorsed.

Sorry, Bob and Jim, and to some extent Rudi, your Islamophobia and probable racism reflect sad ignorance and prejudice and elicit pessimism about the cultural dynamics of the UK. Please try and read Mr Zubaidah's article and reflect. It will make you seem less silly.

What Islamic legal discourse does need, I believe, is some critical examination and re-assessment based on an agreed hermeneutic of modernity ( OK, a tough one ), particularly of those areas which problematize women's rights, evidence, apostasy and, say, homosexuality. Much of the difficulty in these areas relates to ahadith and, especially, fiqh. The rigidity with which Islamists cling to a medieval exegesis of sharia is indeed disappointing and does a great disservice to Islam which, is, Jim and Bob and Rudi, dynamic, liberating and noble.

Let's have that debate with the Archbishop, forget the media bigotry and, on the Islamic side have Mr Zubaidah as as advocate.

Rudi Dierick on "Sharia: practice of faith, politics of modernity "

Rudi Dierick — Mon, 25 Feb 2008 18:08:27 +0000

Why are so many writers on Opendemocracy unwilling to acknowledge the fundamental difference between (most) Jewish and Catholic courts, and sharia courts?

The key problem about sharia courts is that their entire normative basis is on many accounts incompatible with universal human rights. That cannot be said from (most other) religious arbitration.

jim willmot on "Sharia: practice of faith, politics of modernity "

jim willmot — Mon, 25 Feb 2008 16:43:12 +0000

The second paragraph says the Koran is the word of God, which is a claim made by every religion about their sacred scriptures. You can't all be right. I suggest that you are all wrong. It seems unbelievable that we accept the findings of modern science and knowledge in all areas of our lives except when it comes to the area of morals. It is a cause and effect universe people...things happen do to natural laws, not faith, prayer and prophecy. I don't want to offend (and I certainly don't want to be killed) but this nonsense of "prophets" has got to end. No one can predict the future....what we do know is that we must live cooperatively in order to keep this fantastic experiment going. Apologizing for superstitious behaviors and suggesting it play a larger role in the judiciary is exactly the opposite of what we need. Enforcement of secular, moral laws, based on democratic priniciples is what we need, not a return to power of self-interest-driven, fantasy-based rogues that promote the religious industry.

Bob Philbin on "Sharia: practice of faith, politics of modernity "

Bob Philbin — Sat, 23 Feb 2008 01:10:55 +0000

"The theological logic of the sharia is that God had revealed his commandments for a pious life, . .."

I stopped reading the above article when arriving the sentence quoted above. This is the kind of jibberish that gets women stoned to death, and several hundred thousand innocent Iraqis killed. Please, for the sake of humanity, get the level of discussion of medieval practices into the 21st century, or continue to suffer the consequences, namely a continued unnecessary war of cultures. Get hip, or get lost.

Thank you,

Bob Philbin

Sharia: practice of faith, politics of modernity , Sami Zubaida

Fri, 22 Feb 2008 17:55:33 +0000

The furore in Britain over the Archbishop of Canterbury's cautious references to the sharia and law in his lecture in London on 7 February 2008 has been extensively discussed by a number of openDemocracy writers and from a variety of perspectives: among them Tina Beattie, Fred Halliday, Theo Hobson, Tariq Modood and Roger Scruton, as well as Simon Barrow in OurKingdom. These responses, however, still leave room for some clarifications over the applications of the sharia in modern times and their implications for the debate.

Also in openDemocracy on religious identity and the sharia controversy in Britain:

Callum Brown, "'Best not to take it too far': how the British cut religion down to size" (8 March 2006)

Tina Beattie, "Rowan Williams and sharia law" (12 February 2008)

Fred Halliday, "Islam, law and finance: the elusive divine" (12 February 2008)

Theo Hobson, "Rowan Williams: sharia furore, Anglican future" (13 February 2008)

Roger Scruton, "Islamic law in a secular world" (14 February 2008)

Tariq Modood, "Multicultural citizenship and the anti-sharia storm" (14 February 2008)

OurKingdom, the conversation on the future of the United Kingdom, features posts and debate about the sharia controversy here and here

The theological logic of the sharia is that God had revealed his commandments for a pious life, and that these should constitute the norms for the life of believers, their family, society and, ultimately, government. These commandments are given, in part, in the Qur'an, the word of God, and in other parts in the narratives and utterances of the Prophet Mohammed and his companions (and to the Shi'a in the narratives of their "twelve" imams). These latter are known as sunna (path) and hadith (utterance). Theoretically, these canonical sources constitute the bases for elaborate legal traditions, known as fiqh (understanding), formulated by divines and jurists over the Islamic centuries, and subject to many mutations. There are close parallels with the Jewish halakha and the Talmudic traditions.

Muslim modernists and some western observers have pointed out the distinction between sharia (as God's law) and fiqh (as man-made elaboration. This distinction allows reformers to challenge the traditional fiqh accumulations as contingent on the historical circumstances of their formulation, in favour of new legal deductions in accordance with the spirit of the time. This is against the conservative and fundamentalist Muslims who insist on what they consider literal meaning of the holy texts, or of traditional formulations.

The logic of applying the sharia remains that the believer seeks virtue and salvation in living according to God's commandments. Equally, in Muslim thought, it was regarded as the duty of the ruler and government to apply God's law in their domains. In practice, sharia only constituted one element in the legal and religious practices that prevailed in various societies and periods. Qanun (administrative laws), ‘urf (customary law), hisba (market regulation and inspection), and arbitrary police practices were combined with the sharia and its courts at most times and places.

The penal law of the sharia, the hallmark of Islamic law in western perception, was not always entrusted to sharia courts on account of their rigorous requirements of evidence and proof, and often relegated instead to police and military courts and procedures. In practice, sharia courts applied primarily to the private and commercial affairs of the subjects, not to the rulers and government affairs. Family relations and disputes - of marriage, divorce, custody, inheritance and financial obligations - constituted the primary realm of sharia courts and applications.

A modernist adaptation

Sami Zubaida is emeritus professor of politics and sociology at Birkbeck College, London. Among his books are Islam, the People and the State: Political Ideas and Movements in the Middle East (IB Tauris, 1993) and Law and Power in the Islamic World (IB Tauris, 2003). Legal reforms in the Ottoman empire and the successor states and in Egypt and Iran, from the nineteenth century, have seen the etatisation of law in systematic positive codes. These have included the wholesale incorporation of European codes: Swiss, Belgian and Italian. Elements of the sharia were retained primarily for family law, but they became state law, subject to state legislation and amendment. The legal ideology of the historic Muslim states was that the law originated from the dual sources of God and the king (not unlike some Christian formulations).

Most modern states in the Muslim world derive the law, theoretically, from legislative processes and institutions, including parliaments, which ultimately have authority over holy law. And this is where the divergence from the informal sharia practices in Muslim communities in the diaspora, referred to by the archbishop, diverge from modern reforms. Whereas modern legislation has for the most part tried to get away from the rigours of the sharia regarding the status of women and children, informal communal practices have no such inhibitions.

Some modernist analysts and commentators emphasise the variability and malleability of the sharia (see, for example, Fred Halliday's contribution to openDemocracy's series, "Islam, law and finance: the elusive divine" [12 February 2008]. However, when it comes to family law, the sharia corpus has been fairly stable and predictable over the centuries, with minor variations between the four Sunni schools and Shi'a fiqh. Its main features are well known:

* polygamy, the right of the man to take four wives (and for the Shi'a the possibility of temporary "pleasure" marriages)

* the right of the husband to unilateral divorce/renunciation, while the wife has very limited rights in initiating divorce

* custody laws that favour the husband and his kin

* the duty of the husband to provide for the household

* mutual sexual obligations; rules over financial settlements at marriage, divorce and custody.

From these elements, other obligations on the wife were derived and were widely observed. These include, most significantly, the husband's right to allow or prohibit the wife's activity (if any) outside the home, including work and travel. The segregation of the sexes in public and the requirements of hijab on women are also features in many instances. In addition, there is the penal provision for adultery, applicable to men and women, of beating for unmarried offenders, and stoning to death for the married.

This corpus is observed in its entirety in Saudi Arabia and under the Taliban regime (still, reportedly, prevalent in many parts of Afghanistan). The Islamic Republic of Iran attempted to institute this corpus in the country's laws after the 1979 revolution, though it faced strong opposition and pressures for reform, often from within Islamic circles; in consequence it has, over the three decades of the republic, been led to moderate many of these impositions. Now the faction of the regime led by the president, Mahmoud Ahamdinejad, is pressing to return to the original impulse and undermine the reforms in turn.

The national project

In modern Arab states such as Egypt, Iraq, Syria, and Tunisia, the legislative process, while retaining elements of the sharia in their family law, have constantly attempted to liberalise the provisions which disabled women and children. The most advanced was Tunisia where polygamy was prohibited, and many liberal measures instituted. Iraq both under Abd-al Karim Qasim (1958-63) and in the earlier period of the Ba'ath regime (1970s-80s) also instituted reforms and inhibitions on polygamy. In pious Egypt, reforms have been extensive but always controversial. The latest, in 2000, were proposals to give a wife rights of unilateral divorce, khul' (under an obscure provision in a supposed, but disputed, hadith), while renouncing any financial rights. This was passed against fierce opposition from many sectors of the political class, the media and public opinion. Another proposal made at the same time, to allow a wife to pursue work and travel without the husband's permission, was defeated.

The call for the full application of the sharia, however conceived, is a constant element of Islamist advocacy in recent decades. The radical call for the caliphate also has as one of its reasons the enforcement of the shari'a. One part of the rationale of the sharia, as already mentioned, is the pious requirement to live and to rule in accordance with God's revelations.

Also by Sami Zubaida in openDemocracy:

The rise and fall of civil society in Iraq (5 February 2003)

The next Iraqi state: secular or religious? (13 February 2004)

Understanding the insurgencies in Iraq (15 April 2004)

The London bombs: Iraq or the 'rage of Islam'? (2 August 2005)

Iraq's constitution on the edge (21 August 2005)

In search of British Muslim identity: responses to 'Young, Angry and Muslim' (27 October 2005)

Democracy, Iraq and the middle east (18 November 2005)

Islam, religion and ideology (14 February 2007)

The many faces of multiculturalism (5 June 2007)Another powerful motive under modern conditions is a kind of cultural nationalism, a quest for authenticity. Colonial rule, and western invasion, it is argued, have imposed alien cultures, including legal codes, on Muslim peoples. The task for national projects at present is to restore authenticity by instituting the sharia as the original, native law. This quest is also characteristic of many modernist nationalists and reformers who espouse diluted and reformed notions of the sharia, but hold it as essential for anti-imperialist national revival. This is part of the convergence of nationalism with Islamism, discernable in many parts of the middle east, with anti-imperialism as its motor.

The interest question

An important feature of this quest is the rise of Islamic banking and finance, also featured in Fred Halliday's article. This is an entirely modern and mostly recent phenomenon. The dealing in interest was a common feature of most Muslim societies, and widely accepted as legitimate, sometimes disguised under flimsy formulae. Sharia courts in many Ottoman settings enforced contracts stipulating interest payment. Most notably, Ebussu'ud, the court mufti of Suleyman the Magnificent in the 16th century (known in Arabic and Turkish as Suleyman Qanuni, law-giver) issued a ruling allowing cash waqf (pious endowment). Typically, these endowments are in the form of income from property, but Ebussu'ud ruled the legitimacy of cash endowments, the income from which must be a form of interest. Moreover, many of the Muslim reformers in the 19th century and later - including the leading cleric and mufti of Egypt, Muhammad Abduh (1849-1905) - proclaimed the legitimacy of dealing in interest.

The question of the prohibition on interest comes to the fore in the modern period, primarily as a question of identity politics (as well as of opportunity for gain in certain contexts), of asserting difference from the west in a world in which all aspects of financial life are the west. This may be seen as an "alternative modernity" of finance, but one that springs not from some historical and cultural essence (as usually supposed by advocates of the concept) but from current ideological preoccupations.

The need to know

Rowan Williams, the archbishop, rightly pointed out that informal sharia tribunals were in any case in operation among certain Muslim communities in the United Kingdom, and asked whether these should not be recognised and formalised in some way. Orthodox Jews already enjoyed such recognition, so why not Muslims? And if so, what kind of "recognition"? Surely not extending to enforcing their judgments on unwilling or weak parties and against the law of the land?

The problem in resolving these questions is partly that not enough is known about the forms and procedures of these bodies, nor about the scope of their operation. Do these bodies mix sharia provisions with customary law of the ethnic communities? Resort to these tribunals, legally a form of arbitration, can only occur if all parties to a transaction or dispute agree to be bound by its outcome. What happens, however, when the parties are not equal - as in the hypothetical case, say, of a wife from a village in Kashmir against more powerful and informed husband and in-laws? May there not be a case for formalising these tribunals in some way in order to monitor the fairness of procedure and the truth of consent? Or would recognition initiate a process of institutionalisation which may spur further demands for alternative legal provisions? The Archbishop of Canterbury, in my opinion, has raised important questions, swept away in the furore engendered by the symbolic potency that the mention of "sharia" seems to engender.

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