Published: 09:49 GMT Standard Time - Tuesday 09 February 2010
What is Shari'a? - Challenge of Shari‘a in Western countries
Challenge of Shari‘a in Western countries
Shari‘a poses a challenge to Western societies because of the constant pressure in Muslim communities to implement it and expand its area of influence. For many Muslims in the West, secular law lacks legitimacy, especially in the realm of family law. A recent survey showed that two-thirds of British Muslims would prefer to follow Shari‘a in cases where UK law conflicts with Islamic law.
Many Muslims claim they have the right as a religious minority to follow their own customs and laws, including Shari‘a. There have been calls for partial incorporation of Shari‘a into British civil law. Some Muslim groups have campaigned for the legal incorporation of Islamic family law into the British legal system. In 1990 the Muslim Institute suggested “the creation of a Muslim legal framework to decide cases that may then be recognised as valid in British law”.
Creation of a parallel alternative legal framework
Many Muslims in the West try to live by Shari‘a regulations as far as possible, creating an unofficial enclave in which Islamic religious scholars and lawyers offer their services. This has created an alternative legal structure of Shari‘a courts and councils.
The stronger the parallel network of Islamic institutions becomes, the more pressure is exerted on Muslims to use these in preference to non-Muslim institutions. Once a Shari‘a alternative is available, it becomes obligatory for Muslims to obey Shari‘a in that specific case. A serious question is the amount of social, family and community pressure brought to bear on the most vulnerable members of the Muslim community – mainly women and children – to abide by the verdicts of such courts even when they place them at a disadvantage as compared with verdicts achieved in the official British court system. For those living in insular and tightly knit traditional communities such pressures to conform must be virtually irresistible.
Many Muslim leaders are constantly applying pressure on Western society, institutions and legal systems to adapt as far as possible to Muslim Shari‘a concepts and models, while at the same time constructing their own alternative Shari‘a systems.
Marriage and divorce
Women are undoubtedly the main victims of the Shari‘a system which inherently favours the husband. British law, for instance, recognises Muslim marriages that were performed abroad before the partners entered the UK. However British residents in the UK must contract marriage according to civil law in order for the marriage to be legally recognised. It is very common, even for well educated Muslims, to think it unnecessary to register their marriages in the civil system. Some wrongly believe that the Islamic wedding ceremony is recognised by British law. In cases of divorce the women are then left with the much lesser legal rights of a “cohabitee”. Some Muslim men knowingly exploit the ignorance of their wives so as not to have to pay maintenance and repay dowry should they divorce them. Widows may find they lack pension rights and rights to their husband’s property.
Another problem is that many Muslim women in the UK may get divorced under Shari‘a only, without getting their divorce ratified by a civil court. Some believe they are free to remarry, but under British law they are then committing bigamy (an offence punishable by seven years’ imprisonment).
In several Muslim countries child marriages are legal. For many traditional Muslims, child marriages are acceptable because Muhammad married his favourite wife Aisha when she was six years old and consummated the marriage when she was nine. This is why, following the 1979 Iranian Revolution, Iran’s new rulers lowered the minimum age of marriage for girls to nine. Recently in India, the All India Muslim Personal Law Board attempted to gain an exemption for Muslims from the legal minimum marriage age of 18 set by Indian law. According to the board, child marriages are part of Shari‘a which is “absolute, final and non-negotiable”.
Even in Britain it is possible that child marriages are happening. The Sharia Council of Darul Uloom London gives some rules for divorce on its website, one of which clearly indicates that the council envisages the possibility of divorcing girls below the age of puberty.
Under Shari‘a a man is allowed up to four wives. Polygamy is allowed in many Muslim countries but prohibited in Western countries. This raises problems for Muslim residents in the West who married another wife either before their immigration or while visiting their “home countries”.
The Muslim Parliament of Great Britain has complained that many families are being forced to live outside the law because their polygamous marriages are not recognised in the UK. One estimate gives the number of polygamous families in Britain at several hundreds.
Female genital mutilation
Female genital mutilation is widespread among some Muslim communities, especially Egypt, East Africa, Yemen, and Indonesia. Some Muslim leaders condemn it as un-Islamic but many believe that it is ordained in the Shari‘a. They also believe it is essential for preserving women’s chastity on which the allimportant family honour largely depends. In 1994 the former Sheik of Al-Azhar, Egypt, Jad Al- Haqq ‘Ali Jad Al-Haqq, ruled that circumcision is an Islamic duty for women as well as for men. In the UK it is a criminal offence under the 1985 Prohibition of Female Circumcision Act, but an estimated 7,000 girls in Britain are of an age to be at risk from this procedure at any given time. The law is being evaded by families taking the girls abroad for a holiday and having the procedure carried out there.
In Shari‘a there are differences between the various schools of law as to the extent of what a woman may reveal in public. The Hanafi and Maliki schools of law permit face and hands to be revealed in public, thus there is no need for a veil over the face. Among Hanbalis there are two opinions, some permitting the revealing of face and hands, others forbidding it. The Shafi‘is demand that a woman’s face and hands be covered in public, thus demanding some kind of veil over her face. It would seem that the majority of classical scholars agreed that a woman’s face may be displayed, and a minority said the face must be covered. Practice thus differed regionally depending on which school of law and scholars were followed in that area.
Both Qur’an and hadith urge modesty in women’s dress and command them to cover themselves in public. The problem is a matter of interpretation of the original Arabic words used. One such word, jilbab, is obviously an outer garment, but what did it look like? Was it just a mantle-like garment that covered the under clothes, or did it cover head and face and ankles as well? Does another word, juyub, mean bosom only, or did it mean head, face, neck and bosom?
Some modern Muslim women in the West are adopting the strictest version as a way of asserting their Muslim identity. It appears that Muslim organisations in the West are manipulating the issue to further the Islamisation of their host societies.
The problem of full veiling of the face for security and antiterrorist measures is obvious. Yet in the US the Council on American-Islamic Relations has managed to persuade the states of Kansas, Pennsylvania, Indiana, Montana, and Washington to allow Muslim women to have their driving licence photo taken with their faces veiled showing their eyes only.
According to Shari‘a, certain foods such as pork and alcohol are forbidden to Muslims. The Shari‘a also says that animals must be slaughtered by Muslims in a religious ritual which includes slitting the animal’s throat and draining its blood. Stunning of animals before slaughter is forbidden. Only meat produced by this type of slaughter is halal (permitted) for consumption. Halal food is provided in many public institutions in the UK such as schools, hospitals and prisons. Sometimes it is served to everyone, irrespective of faith. Likewise, most of the lamb exported from New Zealand is halal, whether it is going to a Muslim-majority country or to the West. The Muslim Council of Britain has recommended that the Islamic method of slaughter be adopted universally in Britain for all consumers. This trend can be seen as part of a process of Islamisation, whereby non-Muslims end up living by Islamic rules.
Though the Qur’an specifically prohibits only pork and alcohol, the Islamic Food and Nutrition Council of America has made a list of 36 different categories of food, drinks, and cosmetic products covering 301 products which meet Shari‘a requirement. Such products must not contain any prohibited ingredients and must be processed according to Islamic guidelines. To protect the certification process from fraud, Muslims in New Jersey, Illinois, Minnesota, Michigan, Texas, Virginia and California have successfully persuaded their legislators to adopt a halal bill.
Shari‘a and Muslims in the West
Muslims in the West face a dilemma about whether to obey Shari‘a or the law of the land in which they live. Scholars have a variety of options. We shall look at this subject in a future issue.