Should Muslims Be Following A Sharia Which Promotes Religious And Sexual Discrimination?
By
Arshad Alam, New Age Islam
30 June
2021
The Only
Way Out Is To Question the Sacredness Attached To the Sharia
Main
Points:
• The
Sharia is inherently discriminatory on the grounds of sex and religion.
• Muslims
wrestle with such discrimination by bringing piecemeal reforms instead of
questioning the very sacredness attached to the Sharia.
• Ijtihad
cannot be done in matters of explicit instruction present in Quran and Sunna.
• In
order to do comprehensive change, Muslims must get rid of the erroneous belief
that Sharia is of divine origin.
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The Sharia
law derives from the Quran and the Hadith. Muslims across the world have been
governed by this law which was formed when the Islamic empire was expanding.
Since Muslims were in a dominant position, there is very little in the Sharia
which tells how they should conduct themselves when they are in a minority.
Nevertheless, Muslim minorities have sought to regulate their lives on the
basis of personal laws which is derived from the Sharia. In India for example,
the All India Muslim Personal Law Board was established with the specific focus
of protecting the Sharia.
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Whether in
a minority or a majority, Muslims have continued to wrestle with the Sharia as
it is impervious to change. Part of the problem has been the Muslim
understanding that Sharia is a divine law which cannot be changed. However,
historically certain provisions of the Sharia have been amended from time to
time. At times it has been done at the behest of rulers who wanted to modernize
their countries. At times, it was the result of middle-class movements (like in
Pakistan and Indonesia) who wanted to reform overtly discriminatory provisions
regarding women. Often, the argument in such campaigns have been that the
‘original’ Islam is not discriminatory and hence there is a need to go back to
it. In India, for example, the campaign for Muslim women’s rights often uses
such a tactic. So, whether one is reformist or revivalist, everyone wants to go
back fourteen hundred years rather than look for solutions by marching ahead.
Islam possibly may be the only religion where reform and revival mean the same
thing.
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That the
Sharia is inherently discriminatory on the grounds of sex and religion somehow
escapes discussion. Any reformist which does not question this basic premises
on which Islamic law is based will only end up justifying the Sharia or making
it an ideal source of law which should govern Muslims. Muslims need to question
whether there is any reason to demand governance through the Sharia when
clearly better codes of jurisprudence are available today.
In a Muslim
majority state, religious discrimination within the Sharia derives from the
fact that the Islamic law classifies people in terms of their religious beliefs
and apportions civil and political rights accordingly. In this scheme, Muslims
enjoy the full range of rights as citizens while non-Muslims do not. An
unbeliever practically has no rights except under temporary license or safe
conduct (Aman). Non-Muslim believers, especially the Christians and the
Jews, may be offered a compact of protection (Dhimma) whereby they enjoy
security of person and property, and a degree of communal autonomy in personal
matters, in exchange for payment of a special tax (Jizya). Such a Dhimmi
cannot hold all types of public offices nor can he or she testify in
judicial proceedings, thus putting further limitations on their civic
participation. Many interpretations of the Sharia make it amply clear that the
dhimmis are to be treated contemptuously as second-class citizens by putting
restrictions on matters of dress or the construction of their religious
places.
When in
minority, Muslims place special emphasis that they be guided by their personal
laws. The personal law enables sexual discrimination by allowing a man the
right to marry up to four wives as well as the right to divorce any of them at
will. There is no need for him to comply with any procedural or substantive
requirement or even to reveal his reasons. In contrast, a Muslim woman can only
obtain a Khula (permission to be divorced) and that too by a judicial decree
within very strict and limited conditions. She does not have the right to
‘divorce’ her husband as that right is reserved only for men under the Islamic
law. Moreover, women under Sharia law suffer a variety of civil limitations,
such as disqualification from holding certain public offices and from
testifying in certain types of judicial proceedings.
Muslim
apologists have largely argued that these discriminatory practices can be
rectified by bringing piecemeal reforms through the exercise of Ijtihad. It has
now become common place to argue that Muslims must engage in Ijtihad and that
reform is possible through it. But deep down, they know that Ijtihad does not
mean free thinking, rather it is itself subject to certain regulations. In
particular, Ijtihad is not permitted in matters which are governed by explicit
references in the Quran and the Sunna.
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Also Read: The
Classical Islamic Sharia Law is NOT a Word of God! (Part II: The Way Forward)
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The hadith
from which the notion of Ijtihad is derived is itself very clear in the matter
of precedence. The tradition narrates
that when the Prophet intended to send Muadh ibn Jabal to Yemen, he asked:
How will
you judge when the occasion of deciding a case arises? He replied: I shall
judge according to Allah’s Book. He asked: (What will you do) if you do not
find any guidance in Allah’s Book? He replied: (I shall act) in accordance with
the Sunna of the Messenger of Allah. He (the Prophet) asked: (What will you do)
if you do not find any guidance in the Sunna of the Messenger of Allah or in
Allah’s Book? He replied: I shall do my best to form an opinion and I shall
spare no effort. The Messenger of Allah then patted him on the breast and said:
Praise be to Allah who has helped the messenger of the Messenger of Allah to
find something which pleases the Messenger of Allah [Sunna Abu Dawood, 24:
3585].
It is clear
from the above hadith that one can seek recourse to Ijtihad only in the absence
of an explicit instruction in the Quran or the Sunna. Sexual and religious
discrimination is found mentioned explicitly in the Quran and the Sunna and
therefore cannot be amended by individual or collective opinions. It follows
therefore, that despite the best intentions of some reformist scholars, their
claims of reforming the Sharia ring hollow. The only way therefore is to
declare that the Sharia has become obsolete. And in order to do, Muslims first
have to repudiate their erroneous belief in the sacredness of Sharia.
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Arshad
Alam is a columnist with NewAgeIslam.com
URL: https://www.newageislam.com/debating-islam/sharia-sexual-discrimination/d/125035
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