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Shariah News: Why Shariah?

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  • Zafar Khan
    Why Shariah? By NOAH FELDMAN March 16, 2008 http://www.nytimes.com/2008/03/16/magazine/16Shariah-t.html?_r=4&oref=slogin&oref=slogin&oref=slogin&oref=slogin
    Message 1 of 1 , Mar 29, 2008
      Why Shariah?
      March 16, 2008


      Last month, Rowan Williams, the archbishop of
      Canterbury, gave a nuanced, scholarly lecture in
      London about whether the British legal system should
      allow non-Christian courts to decide certain matters
      of family law. Britain has no constitutional
      separation of church and state. The archbishop noted
      that “the law of the Church of England is the law of
      the land” there; indeed, ecclesiastical courts that
      once handled marriage and divorce are still integrated
      into the British legal system, deciding matters of
      church property and doctrine. His tentative suggestion
      was that, subject to the agreement of all parties and
      the strict requirement of protecting equal rights for
      women, it might be a good idea to consider allowing
      Islamic and Orthodox Jewish courts to handle marriage
      and divorce.

      Then all hell broke loose. From politicians across the
      spectrum to senior church figures and the ubiquitous
      British tabloids came calls for the leader of the
      world’s second largest Christian denomination to issue
      a retraction or even resign. Williams has spent the
      last couple of years trying to hold together the
      global Anglican Communion in the face of continuing
      controversies about ordaining gay priests and
      recognizing same-sex marriages. Yet little in that
      contentious battle subjected him to the kind of outcry
      that his reference to religious courts unleashed.
      Needless to say, the outrage was not occasioned by
      Williams’s mention of Orthodox Jewish law. For the
      purposes of public discussion, it was the word
      “Shariah” that was radioactive.

      In some sense, the outrage about according a degree of
      official status to Shariah in a Western country should
      come as no surprise. No legal system has ever had
      worse press. To many, the word “Shariah” conjures
      horrors of hands cut off, adulterers stoned and women
      oppressed. By contrast, who today remembers that the
      much-loved English common law called for execution as
      punishment for hundreds of crimes, including theft of
      any object worth five shillings or more? How many know
      that until the 18th century, the laws of most European
      countries authorized torture as an official component
      of the criminal-justice system? As for sexism, the
      common law long denied married women any property
      rights or indeed legal personality apart from their
      husbands. When the British applied their law to
      Muslims in place of Shariah, as they did in some
      colonies, the result was to strip married women of the
      property that Islamic law had always granted them —
      hardly progress toward equality of the sexes.

      In fact, for most of its history, Islamic law offered
      the most liberal and humane legal principles available
      anywhere in the world. Today, when we invoke the harsh
      punishments prescribed by Shariah for a handful of
      offenses, we rarely acknowledge the high standards of
      proof necessary for their implementation. Before an
      adultery conviction can typically be obtained, for
      example, the accused must confess four times or four
      adult male witnesses of good character must testify
      that they directly observed the sex act. The extremes
      of our own legal system — like life sentences for
      relatively minor drug crimes, in some cases — are
      routinely ignored. We neglect to mention the recent
      vintage of our tentative improvements in family law.
      It sometimes seems as if we need Shariah as Westerners
      have long needed Islam: as a canvas on which to
      project our ideas of the horrible, and as a foil to
      make us look good.

      In the Muslim world, on the other hand, the reputation
      of Shariah has undergone an extraordinary revival in
      recent years. A century ago, forward-looking Muslims
      thought of Shariah as outdated, in need of reform or
      maybe abandonment. Today, 66 percent of Egyptians, 60
      percent of Pakistanis and 54 percent of Jordanians say
      that Shariah should be the only source of legislation
      in their countries. Islamist political parties, like
      those associated with the transnational Muslim
      Brotherhood, make the adoption of Shariah the most
      prominent plank in their political platforms. And the
      message resonates. Wherever Islamists have been
      allowed to run for office in Arabic-speaking
      countries, they have tended to win almost as many
      seats as the governments have let them contest. The
      Islamist movement in its various incarnations — from
      moderate to radical — is easily the fastest growing
      and most vital in the Muslim world; the return to
      Shariah is its calling card.

      How is it that what so many Westerners see as the most
      unappealing and premodern aspect of Islam is, to many
      Muslims, the vibrant, attractive core of a global
      movement of Islamic revival? The explanation surely
      must go beyond the oversimplified assumption that
      Muslims want to use Shariah to reverse feminism and
      control women — especially since large numbers of
      women support the Islamists in general and the ideal
      of Shariah in particular.

      Is Shariah the Rule of Law?

      One reason for the divergence between Western and
      Muslim views of Shariah is that we are not all using
      the word to mean the same thing. Although it is
      commonplace to use the word “Shariah” and the phrase
      “Islamic law” interchangeably, this prosaic English
      translation does not capture the full set of
      associations that the term “Shariah” conjures for the
      believer. Shariah, properly understood, is not just a
      set of legal rules. To believing Muslims, it is
      something deeper and higher, infused with moral and
      metaphysical purpose. At its core, Shariah represents
      the idea that all human beings — and all human
      governments — are subject to justice under the law.

      In fact, “Shariah” is not the word traditionally used
      in Arabic to refer to the processes of Islamic legal
      reasoning or the rulings produced through it: that
      word is fiqh, meaning something like Islamic
      jurisprudence. The word “Shariah” connotes a
      connection to the divine, a set of unchanging beliefs
      and principles that order life in accordance with
      God’s will. Westerners typically imagine that Shariah
      advocates simply want to use the Koran as their legal
      code. But the reality is much more complicated.
      Islamist politicians tend to be very vague about
      exactly what it would mean for Shariah to be the
      source for the law of the land — and with good reason,
      because just adopting such a principle would not
      determine how the legal system would actually operate.

      Shariah is best understood as a kind of higher law,
      albeit one that includes some specific, worldly
      commands. All Muslims would agree, for example, that
      it prohibits lending money at interest — though not
      investments in which risks and returns are shared; and
      the ban on Muslims drinking alcohol is an example of
      an unequivocal ritual prohibition, even for liberal
      interpreters of the faith. Some rules associated with
      Shariah are undoubtedly old-fashioned and harsh. Men
      and women are treated unequally, for example, by
      making it hard for women to initiate divorce without
      forfeiting alimony. The prohibition on sodomy, though
      historically often unenforced, makes recognition of
      same-sex relationships difficult to contemplate. But
      Shariah also prohibits bribery or special favors in
      court. It demands equal treatment for rich and poor.
      It condemns the vigilante-style honor killings that
      still occur in some Middle Eastern countries. And it
      protects everyone’s property — including women’s —
      from being taken from them. Unlike in Iran, where
      wearing a head scarf is legally mandated and enforced
      by special religious police, the Islamist view in most
      other Muslim countries is that the head scarf is one
      way of implementing the religious duty to dress
      modestly — a desirable social norm, not an enforceable
      legal rule. And mandating capital punishment for
      apostasy is not on the agenda of most elected
      Islamists. For many Muslims today, living in corrupt
      autocracies, the call for Shariah is not a call for
      sexism, obscurantism or savage punishment but for an
      Islamic version of what the West considers its most
      prized principle of political justice: the rule of

      The Sway of the Scholars

      To understand Shariah’s deep appeal, we need to ask a
      crucial question that is rarely addressed in the West:
      What, in fact, is the system of Islamic law? In his
      lifetime, the Prophet Muhammad was both the religious
      and the political leader of the community of Muslim
      believers. His revelation, the Koran, contained some
      laws, pertaining especially to ritual matters and
      inheritance; but it was not primarily a legal book and
      did not include a lengthy legal code of the kind that
      can be found in parts of the Hebrew Bible. When the
      first generation of believers needed guidance on a
      subject that was not addressed by revelation, they
      went directly to Muhammad. He either answered of his
      own accord or, if he was unsure, awaited divine
      guidance in the form of a new revelation.

      With the death of Muhammad, divine revelation to the
      Muslim community stopped. The role of the
      political-religious leader passed to a series of
      caliphs (Arabic for “substitute”) who stood in the
      prophet’s stead. That left the caliph in a tricky
      position when it came to resolving difficult legal
      matters. The caliph possessed Muhammad’s authority but
      not his access to revelation. It also left the
      community in something of a bind. If the Koran did not
      speak clearly to a particular question, how was the
      law to be determined?

      The answer that developed over the first couple of
      centuries of Islam was that the Koran could be
      supplemented by reference to the prophet’s life — his
      sunna, his path. (The word “sunna” is the source of
      the designation Sunni — one who follows the prophet’s
      path.) His actions and words were captured in an oral
      tradition, beginning presumably with a person who
      witnessed the action or statement firsthand. Accurate
      reports had to be distinguished from false ones. But
      of course even a trustworthy report on a particular
      situation could not directly resolve most new legal
      problems that arose later. To address such problems,
      it was necessary to reason by analogy from one
      situation to another. There was also the possibility
      that a communal consensus existed on what to do under
      particular circumstances, and that, too, was thought
      to have substantial weight.

      This fourfold combination — the Koran, the path of the
      prophet as captured in the collections of reports,
      analogical reasoning and consensus — amounted to a
      basis for a legal system. But who would be able to say
      how these four factors fit together? Indeed, who had
      the authority to say that these factors and not others
      formed the sources of the law? The first four caliphs,
      who knew the prophet personally, might have been able
      to make this claim for themselves. But after them, the
      caliphs were faced with a growing group of specialists
      who asserted that they, collectively, could ascertain
      the law from the available sources. This
      self-appointed group came to be known as the scholars
      — and over the course of a few generations, they got
      the caliphs to acknowledge them as the guardians of
      the law. By interpreting a law that originated with
      God, they gained control over the legal system as it
      actually existed. That made them, and not the caliphs,
      into “the heirs of the prophets.”

      Among the Sunnis, this model took effect very early
      and persisted until modern times. For the Shiites, who
      believe that the succession of power followed the
      prophet’s lineage, the prophet had several successors
      who claimed extraordinary divine authority. Once they
      were gone, however, the Shiite scholars came to occupy
      a role not unlike that of their Sunni counterparts.

      Under the constitutional theory that the scholars
      developed to explain the division of labor in the
      Islamic state, the caliph had paramount responsibility
      to fulfill the divine injunction to “command the right
      and prohibit the wrong.” But this was not a task he
      could accomplish on his own. It required him to
      delegate responsibility to scholarly judges, who would
      apply God’s law as they interpreted it. The caliph
      could promote or fire them as he wished, but he could
      not dictate legal results: judicial authority came
      from the caliph, but the law came from the scholars.

      The caliphs — and eventually the sultans who came to
      rule once the caliphate lost most of its worldly
      influence — still had plenty of power. They handled
      foreign affairs more or less at their discretion. And
      they could also issue what were effectively
      administrative regulations — provided these
      regulations did not contradict what the scholars said
      Shariah required. The regulations addressed areas
      where Shariah was silent. They also enabled the state
      to regulate social conduct without having to put every
      case before the courts, where convictions would often
      be impossible to obtain because of the strict
      standards of proof required for punishment. As a
      result of these regulations, many legal matters
      (perhaps most) fell outside the rules given
      specifically by Shariah.

      The upshot is that the system of Islamic law as it
      came to exist allowed a great deal of leeway. That is
      why today’s advocates of Shariah as the source of law
      are not actually recommending the adoption of a
      comprehensive legal code derived from or dictated by
      Shariah — because nothing so comprehensive has ever
      existed in Islamic history. To the Islamist
      politicians who advocate it or for the public that
      supports it, Shariah generally means something else.
      It means establishing a legal system in which God’s
      law sets the ground rules, authorizing and validating
      everyday laws passed by an elected legislature. In
      other words, for them, Shariah is expected to function
      as something like a modern constitution.

      The Rights of Humans and the Rights of God

      So in contemporary Islamic politics, the call for
      Shariah does not only or primarily mean mandating the
      veiling of women or the use of corporal punishment —
      it has an essential constitutional dimension as well.
      But what is the particular appeal of placing Shariah
      above ordinary law?

      The answer lies in a little-remarked feature of
      traditional Islamic government: that a state under
      Shariah was, for more than a thousand years, subject
      to a version of the rule of law. And as a rule-of-law
      government, the traditional Islamic state had an
      advantage that has been lost in the dictatorships and
      autocratic monarchies that have governed so much of
      the Muslim world for the last century. Islamic
      government was legitimate, in the dual sense that it
      generally respected the individual legal rights of its
      subjects and was seen by them as doing so. These
      individual legal rights, known as “the rights of
      humans” (in contrast to “the rights of God” to such
      things as ritual obedience), included basic
      entitlements to life, property and legal process — the
      protections from arbitrary government oppression
      sought by people all over the world for centuries.

      Of course, merely declaring the ruler subject to the
      law was not enough on its own; the ruler actually had
      to follow the law. For that, he needed incentives. And
      as it happened, the system of government gave him a
      big one, in the form of a balance of power with the
      scholars. The ruler might be able to use pressure once
      in a while to get the results he wanted in particular
      cases. But because the scholars were in charge of the
      law, and he was not, the ruler could pervert the
      course of justice only at the high cost of being seen
      to violate God’s law — thereby undermining the very
      basis of his rule.

      In practice, the scholars’ leverage to demand respect
      for the law came from the fact that the caliphate was
      not hereditary as of right. That afforded the scholars
      major influence at the transitional moments when a
      caliph was being chosen or challenged. On taking
      office, a new ruler — even one designated by his dead
      predecessor — had to fend off competing claimants. The
      first thing he would need was affirmation of the
      legitimacy of his assumption of power. The scholars
      were prepared to offer just that, in exchange for the
      ruler’s promise to follow the law.

      Once in office, rulers faced the inevitable threat of
      invasion or a palace coup. The caliph would need the
      scholars to declare a religious obligation to protect
      the state in a defensive jihad. Having the scholars on
      his side in times of crisis was a tremendous asset for
      the ruler who could be said to follow the law. Even if
      the ruler was not law-abiding, the scholars still did
      not spontaneously declare a sitting caliph
      disqualified. This would have been foolish, especially
      in view of the fact that the scholars had no armies at
      their disposal and the sitting caliph did. But their
      silence could easily be interpreted as an invitation
      for a challenger to step forward and be validated.

      The scholars’ insistence that the ruler obey Shariah
      was motivated largely by their belief that it was
      God’s will. But it was God’s will as they interpreted
      it. As a confident, self-defined elite that controlled
      and administered the law according to well-settled
      rules, the scholars were agents of stability and
      predictability — crucial in societies where the
      transition from one ruler to the next could be
      disorderly and even violent. And by controlling the
      law, the scholars could limit the ability of the
      executive to expropriate the property of private
      citizens. This, in turn, induced the executive to rely
      on lawful taxation to raise revenues, which itself
      forced the rulers to be responsive to their subjects’
      concerns. The scholars and their law were thus
      absolutely essential to the tremendous success that
      Islamic society enjoyed from its inception into the
      19th century. Without Shariah, there would have been
      no Haroun al-Rashid in Baghdad, no golden age of
      Muslim Spain, no reign of Suleiman the Magnificent in

      For generations, Western students of the traditional
      Islamic constitution have assumed that the scholars
      could offer no meaningful check on the ruler. As one
      historian has recently put it, although Shariah
      functioned as a constitution, “the constitution was
      not enforceable,” because neither scholars nor
      subjects could “compel their ruler to observe the law
      in the exercise of government.” But almost no
      constitution anywhere in the world enables judges or
      nongovernmental actors to “compel” the obedience of an
      executive who controls the means of force. The Supreme
      Court of the United States has no army behind it.
      Institutions that lack the power of the sword must use
      more subtle means to constrain executives. Like the
      American constitutional balance of powers, the
      traditional Islamic balance was maintained by words
      and ideas, and not just by forcible compulsion.

      So today’s Muslims are not being completely fanciful
      when they act and speak as though Shariah can
      structure a constitutional state subject to the rule
      of law. One big reason that Islamist political parties
      do so well running on a Shariah platform is that their
      constituents recognize that Shariah once augured a
      balanced state in which legal rights were respected.

      From Shariah to Despotism

      But if Shariah is popular among many Muslims in large
      part because of its historical association with the
      rule of law, can it actually do the same work today?
      Here there is reason for caution and skepticism. The
      problem is that the traditional Islamic constitution
      rested on a balance of powers between a ruler subject
      to law and a class of scholars who interpreted and
      administered that law. The governments of most
      contemporary majority-Muslim states, however, have
      lost these features. Rulers govern as if they were
      above the law, not subject to it, and the scholars who
      once wielded so much influence are much reduced in
      status. If they have judicial posts at all, it is
      usually as judges in the family-law courts.

      In only two important instances do scholars today
      exercise real power, and in both cases we can see a
      deviation from their traditional role. The first is
      Iran, where Ayatollah Khomeini, himself a
      distinguished scholar, assumed executive power and
      became supreme leader after the 1979 revolution. The
      result of this configuration, unique in the history of
      the Islamic world, is that the scholarly ruler had no
      counterbalance and so became as unjust as any secular
      ruler with no check on his authority. The other is
      Saudi Arabia, where the scholars retain a certain
      degree of power. The unfortunate outcome is that they
      can slow any government initiative for reform, however
      minor, but cannot do much to keep the government
      responsive to its citizens. The oil-rich state does
      not need to obtain tax revenues from its citizens to
      operate — and thus has little reason to keep their
      interests in mind.

      How the scholars lost their exalted status as keepers
      of the law is a complex story, but it can be summed up
      in the adage that partial reforms are sometimes worse
      than none at all. In the early 19th century, the
      Ottoman empire responded to military setbacks with an
      internal reform movement. The most important reform
      was the attempt to codify Shariah. This Westernizing
      process, foreign to the Islamic legal tradition,
      sought to transform Shariah from a body of doctrines
      and principles to be discovered by the human efforts
      of the scholars into a set of rules that could be
      looked up in a book.

      Once the law existed in codified form, however, the
      law itself was able to replace the scholars as the
      source of authority. Codification took from the
      scholars their all-important claim to have the final
      say over the content of the law and transferred that
      power to the state. To placate the scholars, the
      government kept the Shariah courts running but
      restricted them to handling family-law matters. This
      strategy paralleled the British colonial approach of
      allowing religious courts to handle matters of
      personal status. Today, in countries as far apart as
      Kenya and Pakistan, Shariah courts still administer
      family law — a small subset of their original
      historical jurisdiction.

      Codification signaled the death knell for the
      scholarly class, but it did not destroy the balance of
      powers on its own. Promulgated in 1876, the Ottoman
      constitution created a legislature composed of two
      lawmaking bodies — one elected, one appointed by the
      sultan. This amounted to the first democratic
      institution in the Muslim world; had it established
      itself, it might have popularized the notion that the
      people represent the ultimate source of legal
      authority. Then the legislature could have replaced
      the scholars as the institutional balance to the

      But that was not to be. Less than a year after the
      legislature first met, Sultan Abdulhamid II suspended
      its operation — and for good measure, he suspended the
      constitution the following year. Yet the sultan did
      not restore the scholars to the position they once
      occupied. With the scholars out of the way and no
      legislature to replace them, the sultan found himself
      in the position of near-absolute ruler. This
      arrangement set the pattern for government in the
      Muslim world after the Ottoman empire fell. Law became
      a tool of the ruler, not an authority over him. What
      followed, perhaps unsurprisingly, was dictatorship and
      other forms of executive dominance — the state of
      affairs confronted by the Islamists who seek to
      restore Shariah.

      A Democratic Shariah?

      The Islamists today, partly out of realism, partly
      because they are rarely scholars themselves, seem to
      have little interest in restoring the scholars to
      their old role as the constitutional balance to the
      executive. The Islamist movement, like other modern
      ideologies, seeks to capture the existing state and
      then transform society through the tools of modern
      government. Its vision for bringing Shariah to bear
      therefore incorporates two common features of modern
      government: the legislature and the constitution.

      The mainstream Sunni Islamist position, found, for
      example, in the electoral platforms of the Muslim
      Brotherhood in Egypt and the Justice and Development
      Party in Morocco, is that an elected legislature
      should draft and pass laws that are consistent with
      the spirit of Islamic law. On questions where Islamic
      law does not provide clear direction, the
      democratically chosen legislature is supposed to use
      its discretion to adopt laws infused by Islamic

      The result is a profound change in the theoretical
      structure underlying Islamic law: Shariah is
      democratized in that its care is given to a popularly
      elected legislature. In Iraq, for example, where the
      constitution declares Shariah to be “the source of
      law,” it is in principle up to the National Assembly
      to pass laws that reflect its spirit.

      In case the assembly gets it wrong, however, the
      Islamists often recommend the judicial review of
      legislative actions to guarantee that they do not
      violate Islamic law or values. What is sometimes
      called a “repugnancy clause,” mandating that a
      judicial body overturn laws repugnant to Islam, has
      made its way into several recent constitutions that
      seek to reconcile Islam and democracy. It may be
      found, for example, in the Afghan Constitution of 2004
      and the Iraqi Constitution of 2005. (I had a small
      role advising the Iraqi drafters.) Islamic judicial
      review transforms the highest judicial body of the
      state into a guarantor of conformity with Islamic law.
      The high court can then use this power to push for a
      conservative vision of Islamic law, as in Afghanistan,
      or for a more moderate version, as in Pakistan.

      Islamic judicial review puts the court in a position
      resembling the one that scholars once occupied. Like
      the scholars, the judges of the reviewing court
      present their actions as interpretations of Islamic
      law. But of course the judges engaged in Islamic
      judicial review are not the scholars but ordinary
      judges (as in Iraq) or a mix of judges and scholars
      (as in Afghanistan). In contrast to the traditional
      arrangement, the judges’ authority comes not from
      Shariah itself but from a written constitution that
      gives them the power of judicial review.

      The modern incarnation of Shariah is nostalgic in its
      invocation of the rule of law but forward-looking in
      how it seeks to bring this result about. What the
      Islamists generally do not acknowledge, though, is
      that such institutions on their own cannot deliver the
      rule of law. The executive authority also has to
      develop a commitment to obeying legal and
      constitutional judgments. That will take real-world
      incentives, not just a warm feeling for the values
      associated with Shariah.

      How that happens — how an executive administration
      accustomed to overweening power can be given
      incentives to subordinate itself to the rule of law —
      is one of the great mysteries of constitutional
      development worldwide. Total revolution has an
      extremely bad track record in recent decades, at least
      in majority-Muslim states. The revolution that
      replaced the shah in Iran created an oppressively
      top-heavy constitutional structure. And the equally
      revolutionary dreams some entertained for Iraq —
      dreams of a liberal secular state or of a functioning
      Islamic democracy — still seem far from fruition.

      Gradual change therefore increasingly looks like the
      best of some bad options. And most of today’s
      political Islamists — the ones running for office in
      Morocco or Jordan or Egypt and even Iraq — are
      gradualists. They wish to adapt existing political
      institutions by infusing them with Islamic values and
      some modicum of Islamic law. Of course, such parties
      are also generally hostile to the United States, at
      least where we have worked against their interests.
      (Iraq is an obvious exception — many Shiite Islamists
      there are our close allies.) But this is a separate
      question from whether they can become a force for
      promoting the rule of law. It is possible to imagine
      the electoral success of Islamist parties putting
      pressure on executives to satisfy the demand for
      law-based government embodied in Koranic law. This
      might bring about a transformation of the judiciary,
      in which judges would come to think of themselves as
      agents of the law rather than as agents of the state.

      Something of the sort may slowly be happening in
      Turkey. The Islamists there are much more liberal than
      anywhere else in the Muslim world; they do not even
      advocate the adoption of Shariah (a position that
      would get their government closed down by the
      staunchly secular military). Yet their central focus
      is the rule of law and the expansion of basic rights
      against the Turkish tradition of state-centered
      secularism. The courts are under increasing pressure
      to go along with that vision.

      Can Shariah provide the necessary resources for such a
      rethinking of the judicial role? In its essence,
      Shariah aspires to be a law that applies equally to
      every human, great or small, ruler or ruled. No one is
      above it, and everyone at all times is bound by it.
      But the history of Shariah also shows that the ideals
      of the rule of law cannot be implemented in a vacuum.
      For that, a state needs actually effective
      institutions, which must be reinforced by regular
      practice and by the recognition of actors within the
      system that they have more to gain by remaining
      faithful to its dictates than by deviating from them.

      The odds of success in the endeavor to deliver the
      rule of law are never high. Nothing is harder than
      creating new institutions with the capacity to balance
      executive dominance — except perhaps avoiding the
      temptation to overreach once in power. In Iran, the
      Islamists have discredited their faith among many
      ordinary people, and a similar process may be under
      way in Iraq. Still, with all its risks and dangers,
      the Islamists’ aspiration to renew old ideas of the
      rule of law while coming to terms with contemporary
      circumstances is bold and noble — and may represent a
      path to just and legitimate government in much of the
      Muslim world.

      Noah Feldman, a contributing writer for the magazine,
      is a law professor at Harvard University and an
      adjunct senior fellow at the Council on Foreign
      Relations. This essay is adapted from his book “The
      Fall and Rise of the Islamic State,” which will be
      published later this month.

      Sharia sensibilities
      Protecting the rights of women who need help must
      include respect for their religious practices
      Ayesha Khan The Guardian, Monday February 11 2008


      The blizzard of controversy that has attended the
      Archbishop of Canterbury's remarks about the
      "inevitability" of parts of Islamic law being
      introduced in Britain has thrown a rare spotlight on
      this country's existing sharia councils.

      The erroneous caricature of sharia as synonymous with
      stoning or flogging is a million miles from the
      reality in Britain. The councils' judgments have no
      statutory basis in law, with participants abiding by
      rulings voluntarily, and the vast majority of cases
      concern relatively unremarkable divorce applications.

      I spent several months at one such Islamic court - the
      same east London sharia council that Dr Rowan Williams
      cited in his speech - making a documentary film,
      Divorce: Sharia Style, about the people who use the
      court and the sheiks who preside over it. It was
      immediately plain who is most directly affected by
      sharia law: more than 90% of the cases involved women
      seeking divorce.

      It seemed clear to me that most of these Muslim women
      were committed to using the sharia system, whether or
      not it had any recognition in national law. Many of us
      may feel distinctly uncomfortable supporting a system
      that has no grounding in modern civil rights, but
      whatever one's stance on sharia in Britain, it is
      surely crucial to ask what sharia means for the people
      upon whom it has the greatest practical impact.

      The process of female divorce (khula) women go through
      can seem unfair, given that a man may divorce his wife
      without providing a reason, so long as witnesses are
      present to observe his decree. A woman, on the other
      hand, must apply to the council and defend the
      application in front of the sheikhs, as well as her
      husband if he chooses to oppose the divorce.

      But a woman need offer no more elaborate reason than
      her dislike for her husband, and if she remains
      steadfast she will eventually be granted the divorce,
      even if the process can sometimes take years.

      Women do not have the same rights afforded to them
      under sharia law as they do under the British legal
      system. Their testimony still carries only half the
      weight of a man's. And an all-male, overworked,
      underfunded sharia council does not make a welcoming
      place for many of the women who approach it.

      And yet for all that, a great number of women who feel
      religiously or culturally inclined still prefer a
      religious divorce to a civil one. Indeed, to outlaw
      the sharia process would make it nigh on impossible
      for some women to get a divorce of any kind
      whatsoever. People who go to the council do so because
      they need religious guidance - and until the state can
      provide that they will find it elsewhere. Marriages or
      divorces that have not been given statutory
      recognition can lead to a host of abuses and
      confusion, but for people of faith, the overriding
      priority is that they are sanctioned in the eyes of

      The laws and rights of sharia seem archaic to most
      people in British society. The volume of media
      coverage following the archbishop's speech suggests
      that there is not just misapprehension and bemusement,
      but outright hostility. For many, there is an instinct
      to fight for the rights of the women that are
      perceived to be undermined or abused by Islamic law.
      That is an admirable instinct. But those women who
      need our help most will not seek our assistance if we
      refuse to take seriously their religious and cultural
      preferences and practices.

      · Ayesha Khan reported for the documentary Divorce:
      Sharia Style, directed by Masood Khan. For more
      information see channel4.com/belief

      Q&A: Sharia law explained

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