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   Whose Sharia is it Anyway?    

 

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Published in Newsline and Azizah magazine

The Shari’ah, for the most part, is not explicitly dictated by God. Rather, Shari’ah relies on the interpretative act of the human agent for its production and execution. Paradoxically, however, Shari’ah is the core value that society must serve. The paradox here is exemplified in the tension between the obligation to live by God’s law and the fact that this law is manifested through subjective interpretive determinations. Even if there is a unified realization that a particular positive command does express the divine law, there is still a vast array of possible subjective executions and application. This dilemma was resolved somewhat in Islamic discourses by distinguishing between Shari’ah and fiqh. Shari’ah it was argued, is the Divine ideal, standing as if suspended in midair, unaffected and uncorrupted by life’s vagaries. The fiqh is the human attempt to understand and apply the ideal. Therefore, Shari’ah is immutable, immaculate, and flawless – fiqh is not. 

Khaled Abou El Fadl, Islam and the Challenge of Democracy, 
Princeton 2004.

I’ve been reading and watching the debates about the Islamic Tribunal in Ontario and wondering how, as a Muslim woman living in Canada will this affect me. Will I ever use it? Will my husband misuse it? (I hope not!) Will my children benefit from it? To my understanding, whether we are moderate, conservative or progressive Muslims, to some extent we all implement Sharia in our daily lives. When it comes to birth, death, marriage or divorce, we do fall back on Islamic law.  Given an option, I think I’d rather have family matters settled through the circle of my faith as some of my brothers and sisters in the Jewish community already do.

But what is Sharia anyway? The meaning reflects flowing water and fluidity. Ideally Sharia is based on four Sunni schools of Islamic jurisprudence plus the Jaafri school of thought, being flexible and adaptable to time and place. (I understand that the Muslim Court of Arbitration has taken the different denominations into consideration).  In terms of women’s rights, an in-depth understanding of Sharia will show that it was implemented to support women and many recent studies prove that it did. Judith Tucker’s book In the House of the Law, is only one reference of how Sharia favored women and gave them rights to marriage, divorce, voting and inheritance 1400 years ago. Ironically those rights were later usurped through colonization and patriarchal dictatorships. It’s important to note that Sharia is not divine but man-made (literally in some sense) so it’s open to misuse as has been the case for many centuries.

My concern like everyone else’s is that we don’t want Sharia in Canada to take the shape of the dreaded Taliban regime. As a Muslim woman keenly involved in the development of Canadian Muslims, I understand and appreciate why women are afraid and I’m on record as having spoken out against gender apartheid. However, to be fair, I don’t think the intent for setting up an Islamic Tribunal is to oppress Muslim women in Canada. There are thousands of educated, strong Muslim women who can oversee that injustice does not take place. (Note to Marion Boyd – equal representation, both in sect and gender is imperative for a fair working tribunal)

The fact that dialogue and debate is taking place is a good sign because it should alert the proponents of the Islamic Tribunal that they must have equal representation and stay within the framework of Canadian law. At the same time, passing judgment on those who oppose the Islamic Arbitration service is not acceptable.  Calling names and labeling critics as being outside the circle of the faith happens in dictatorships, which suppress freedom of expression – luckily in Canada, difference of opinion is a way of life.

In speaking to some Muslim lawyers, I discovered that family arbitration has been taking place on an ad-hoc basis since Muslims came to Canada. Decisions, divisions and divorces have been performed in mosques and in communities without any legal recourse and not necessarily in favour of women. I also know from Dr. Azizah al Hibri, (Executive Director of Muslim women Lawyers for Human Rights) that similar tribunals operate successfully in some American States. She explains that properly understood and implemented, Islamic Law can give Muslim women liberty and latitude.

In some ways, we now have a unique opportunity to bring about important change and show the world how we can embrace the true and just meaning of Islam – one that reflects gender equality and human rights. This change can only come from within provided the community is united and there is representation by women’s groups and liberal Muslims.

Sometime ago when polemics were being spouted from the pulpits of some mosques, the way to oppose this was not to close those places of worship but to try and forge change. Through lobbying and media, change did take place and now there is a conscious effort to be moderate. We still have a long way to go, not by being critical alone, but by working interactively and exposing misuse of the pulpit.

The last thing I wanted to read is that ‘Sharia is flawed’ (Toronto Star Sep 7, 2004). It’s not Sharia that is flawed but the way in which dictatorial and oppressive regimes have used it to suppress the rights of women and minorities. These are countries where religion is used as a bait to gain power or vet votes. Stoning, flogging and honor killings were never a part of Sharia and it’s up to us to see that it never happens here. There’s absolutely no reason why Sharia can’t be updated and brought to par with life as it is in Canada today and be in sync with the Canadian charter of rights and freedom.

The implementation of a voluntary Arbitration court is meant for conflict resolution and not confrontation. As such it deals with family law so that progressive Muslims can still hold their head high and maintain separation of church and state. 

 

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By Raheel Raza
     

 


raheel@raheelraza.com
Phone no: (416) 505 - 6052