The Type of Islamic Law Implemented in UK Shari’a Councils and Muslim Arbitration Tribunal

I define shari’a by the way it is being implemented in Islamic states and within Muslim family laws. I see it as a selection from the corpus of legal opinions of jurists developed over the course of Islamic his­tory, especially between the seventh and tenth centuries.

Looking at shari’a from this perspective will highlight its problem­atic nature, for we are not considering its theoretical potential to pro­vide justice. What we are in fact looking at is its actual implementation and hence its obvious limitations and how it contravenes modern con­cepts of human rights. What matters is how it is being interpreted and used today, not how it could be used a century from now.

I deliberately used the word modern above, because the jurispru­dence suggested and under consideration was developed between the seventh and tenth centuries. This historical period, early in the de­velopment of Islam as a whole, shaped its content and its perception of women’s role in society, and is reflected in its worldview of what constitutes a human and who can enjoy human rights.

In fact, if we look at the actual corpus of Islamic law, human rights can be defined as the privilege ‘only of persons of full legal capacity’. A person of full legal capacity is ‘a living human being of mature age, free [not a slave], and of Moslem faith’. Under this defi­nition, others who lived in the Islamic state, including non-Moslems and slaves, were ‘only partially protected by law or had no legal capacity at all’.⁴⁵ This definition was formulated in 1946 by Majid Khadurri, an Iraqi-born American academic recognised as a leading authority on Islamic law and the modern political history of the Middle East.

More than 50 years later, that definition was qualified by Abdul­lahi Ahmed An-Na'im, a leading Sudan-born American authority on Islamic law and human rights.

What does that mean?

It means that in addition to creating a stratified citizenry dominated by free male Muslims, the way shari’a dealt with the status of women was often contradictory, offering women some rights but withholding many others, while maintaining the notion that the Muslim man is the keeper and guardian of the Muslim woman.

In general, one can discern two levels of statements in the Qur’an regarding women’s status. The first level treats women and men as equal before God - that is, in the afterlife. For example, one verse states: ‘Whoso does evil will be requited only with the like of it; but whoso does good, whether male or female, and is a believer - these will enter the paradise; they will be provided therein without meas­ure’ (Qur’an 40:41).

Qur’anic verses at the second level place women at a legal disad­vantage. These are the statements on issues of family and sexual

WornewawdShaTia law 43 relations, rules of marriage, divorce, custody, maintenance, inher­itance, and testimony - that is, rights within this life. On these is­sues, Qur’anic verses reflect the social tribal patriarchal context of the seventh-century Arabian Peninsula, specifically the city of Medina. They favoured men and accorded women a lower and dependent le­gal status. From this we see the clear inconsistencies on the status of women between the Qur’anic provisions and the modern statements on human rights, such as the 1948 Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Let us start with the first part of An-Na’im’s qualification.

Yet An-Na’im is also correct to state that, under shari’a, Muslim women do not enjoy human rights on an equal footing with Mus­lim men. In fact shari’a laws contravene various provisions of human rights conventions, specifically the UDHR and the CEDAW men­tioned above.

Human rights conventions are clear in their statements about the equality of man and woman. The essence of their worldview is ex­pressed by Article One of the 1948 UDHR: that all human beings are born free and equal in dignity and rights. This principle paved the ground for Article 16 of the same declaration and Article 16 of CEDAW. Both articles envisioned marriage and family relations as an equal partnership that would be entered, shared, and dissolved by both man and woman on an equal footing. Marriage should be en­tered by two persons of full age, with their free and full consent, with­out any limitation due to race, nationality, or religion. The spouses should have same rights and responsibilities with regard to guardian­ship of children, and the same personal rights as husband and wife, including the right to choose a family name, a profession, and an oc­cupation. And both spouses should have the same rights in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property, whether free of charge or for a valuable consideration.

This is not the case in the worldview of classical Islamic law: woman is part of a hierarchical social structure dominated by the man at the

top; and as a legal person the woman is controlled before her mar­riage by her male guardian and after marriage by her husband.

The rules regarding marriageable age and guardianship make child marriages and forced marriages possible, and rules on divorce and maintenance rights discriminate against the wife.

In fact, the Islamic law’s view towards the position of the wife within marriage can be easily discerned by considering the legal term used for marriage - a term, remember, that was developed in the Mid­dle Ages.

In Islamic law, the term for marriage is nikah, which literally means carnal union. Jurists describe nikah as ‘an agreement, which results in the lawful enjoyment of a woman’.⁴⁷ The reference to enjoyment applies only to the husband, because that right belongs especially and pre-eminently to him. In fact, the husband is entitled to intercourse with his wife at his pleasure. On the other hand, two realities re­strict the wife’s right to enjoyment. First, she has no right to claim intercourse with her husband, except for one time after marriage, and second, she may have to share him with other wives.⁴⁸

This perception of marriage is not theoretical. In fact it has been used repeatedly in various Islamic and Arab family laws, such as those in Yemen, Kuwait, and Syria. All of them state in their first article that marriage is a legal union or a contract that gives the man the legal permission to access his wife sexually. The only time this definition has changed has been in genuine attempts to reform the classic Islamic law on family relations. For example, the Moroccan Family Code of 2004 states, ‘Marriage is a legal contract by which a man and a woman mutually consent to unite in a common and endur­ing conjugal life.’⁴⁹

Aside from the legal definition of marriage, classical Islamic law does not envision marriage and family relations as an equal partner­ship between man and woman. In the paragraphs below I summarise the common provisions regarding marriage and divorce.