Thursday, May 19, 2011

Initial Thoughts on Shariah Law, Women, and the Muslim Brotherhood

Dear readers

My students had a lively debate in my leadership class yesterday about whether Shariah humiliates women. (By the way, and importantly, they suggested the topic, and they voted on it. It was not my idea).  I learned a lot. Let me just start by saying that I do not know the answer to this question. But since I am a "lifelong learner" I am ready to study up on it. My biggest reaction to the debate was pleasure that all the students were extremely well prepared. I also was extremely relieved that no blood was on the floor by the end of the debate.

First of all, I learned that Shariah is based on the Holy Quran and the Sunna.

One side of the debate made a very persuasive case that the Holy Quran has a progressive stance on the rights of women in society and in the family. The other side of the debate made an equally persuasive case that Shariah, as actually implemented in Saudi Arabia, Iran and Afghanistan, and to a certain extent Egypt, severely and unfairly restricts the rights of women.

This topic is of interest to both Egyptians, and those who follow Egyptian politics because the policies of the Muslim Brotherhood (MB's) proposed  Freedom and Justice Party are to be based on Shariah ("Brotherhood's Freedom and Justice Party to be based on Islamic Law," Al Masry Al Youm English, February 23, 2011)  At least four Islamic political parties are likely to be formed in the wake of Egypt's uprising. ("Muslim Brotherhood to Establish Freedom and Justice Party, Al Masry Al Youm English, February 21, 2011) The Freedom and Justice Party is scheduled to officially begin on June 17, 2011. ("Brotherhood Expects Political Party to Be Active by June," Al Masry Al Youm English, May 18, 2011)

A thoughtful article, "Why Shariah?" by Noah Feldman, a Harvard Law Professor, in the New York Times (March 16, 2008) makes the following point.

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.

My students made some interesting points. One team pointed out that there are varying interpretations and applications of shariah, which allow some disturbing behavior towards women. For example, the law in Saudi Arabia, which the Saudi Government claims is based in sharia, allows amputation, and stoning for various violations of the law. In Iran, my students argue, a woman is wholly the possession of her husband. In Saudi Arabia, women may not drive, unless they are accompanied by an employee or close male relative. In Afghanistan, they argued, only 5% of women can read and write, and young women are married off early for the bride price.

The other side argued persuasively that in fact these governments are not following the true Shariah. The true Shariah, they argue, protects the role of women. The Quran elevated the status of women, who were subjected to infanticide in the Arab desert 1400 years ago at the dawn of Islam. Islam came to address the wrongs committed against women. Men at the time could marry as many women as they chose. Islam limited men to four wives, who must be cared for in equal measure. In addition, my students pointed out, it is the case that women in Britain and America could not own property until the early 1900s. How can Shariah humiliate women, when it has always allowed women to own property? They noted that Shariah states that gender is recognized in the Holy Quran, and that a woman's personhood is respected. According to my students, Islam honors mothers, and protects the rights of the wife in divorce and marriage.

Fiqh, or Islamic Jurisprudence, my students argued echoing Feldman, although they had not read him, should not be confused with Shariah. The Islamic Jurisprudence applied in Taliban run Afghanistan or Saudi Arabia, they stated, is not Shariah. Those governments are mixing culture, and their own internalized sexism, with Shariah. Feldman makes an argument that supports this position, saying that the governments in these countries are not adequately limited by Islamic scholars, and thus, behave somewhat arbitrarily. He states:

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 other words, the problem is that traditionally, Islamic scholars had significant social power. They could control arbitrary or unjust rulers and protect the people. Unfortunately, these scholars have lost their social position in the modern world, and have thus lost the ability to ensure that Shariah is applied in accordance with the consensus of Quranic law. For Shariah to be applied properly, there would have to be an effort to rebalance the power of the Islamic scholar in order to reinstate their ability to restrain the executive, like a kind of "Supreme Court." In the absence of these balancing institutions, Feldman and my students argue, the Saudi state, for example, has imposed extreme restrictions on the actions of women that arguably many Islamic scholars would argue are in conflict with the intention of the Quran.

Anyway, this is a very difficult topic. I am not suggesting an answer. I am just trying to become literate about it. I hope you found my musings informative. These are my thoughts for today. Lots to think about. WMB


  1. I've had the impression, now strengthened by reading this post and professor Feldman's 2008 article in the New York Times, that many of the excesses we hear about in the US about Sharia law are actually excesses of corrupt governments without appropriate checks and balances.

    The two main problems with saying that a set of laws is based on God's law is that (1) you don't have a Supreme Court that can re-interpret God's message in light of modern times, and (2) a dictator can claim he's acting in God's name, and nobody can object to the dictator's actions without being sent to jail or worse.

  2. Great write-up, Dr. Warigia. You offer precise indications of the complexities of Sharia and its application, as well as how it is personally internalized and interpreted by the Arab legislature, which perhaps, when abused and exploited, is designed for personal gain.

    @Henry, I agree with you. Many of the US governments and media outlets offer propaganda and or distorted truths that are 1) based on reports of extremism of any particular state, say for instance, how Saudi implements Sharia and the extreme punishments to women. Then, those reports are generalized for the entire Muslim world, and 2) as you stated, "checks and balances"... without the full understanding of what Sharia is and its purpose. And generally, we fear what we do not understand.

    Nice read, Dr. Warigia!