laura.fo

The issue of Canada adopting a version of sharia law is an interesting one. accusehistory discusses it here and here.

I'm not inherently opposed to competing or co-existing legal systems sharing the same jurisdiction. Not even sure if that's the right way to phrase it, but I'm thinking of Nigeria, where apparently you first take your case to a tribal council and if the solution isn't satisfactory to either party you can appeal and have it decided by the state. In theory, this seems like a nice way to reconcile cultural differences, though obviously it only works if everyone knows about it; one of the fears with the Canadian law is that recent immigrants (mainly women) will be told they have no choice but to get divorced within the religious courts.

What I don't understand about this, though, is how they can possibly define Muslim family law with such precision. I realize there are a few principles that are almost universally understood to be part-and-parcel of a "Muslim divorce," like the notion that the woman retains property in her own name. She's also entitled to "some" support after divorce, but what does "some" mean, and how long does it last? Child custody is particularly nebulous: after the Iranian revolution men were awarded custody of their boy children immediately following a divorce and of their girl children after age two (later, I believe, this was changed to boys at two and girls at seven); in Egypt after Sadat boys went to live with their fathers at age fifteen and girls stayed with their mothers until they were married or otherwise left the home. That's a lot of leeway in the interpretation of Islamic law, and either way the fitness of the parent doesn't enter the discussion. Is Canada claiming to have the definitive answer to this question?

My other question is why this only applies to family law. Here I feel like quoting myself, from a piece I wrote recently: "Herbert Liebesny has described the colonial displacement of Muslim law in majority-Muslim countries as five concentric circles, with commercial law on the outside, followed by penal law, real estate, contracts and torts, and finally family law at the center of the circle, the segment least affected by European influence. Since marriage, divorce, and other 'private' matters had scant influence on Europeans' ability to turn a profit in the colonies, these matters were among the only indigenous institutions left largely intact in the wake of imperialism. Over time this innermost circle came to represent 'authentic Muslim identity' both inside and outside the Middle East, and those who challenged laws related to women's rights — even laws dating back to the nineteenth century — were suspected of working in consort with the colonizers."

Which isn't to say I'd like to see sharia in its most draconian Saudi-style form instituted in Canada, wouldn't even like to see an Egyptian-style system that prohibits Muslims alone from gambling, or drinking alcohol during Ramadan. But I find it interesting that family law and other areas that affect women are considered "safe" territory for tinkering with the system, that these are the areas where we all agree to nod our heads and "respect multiculturalism," but in areas that involve the movement of capital, for example, or the treatment of prisoners, Islamic thought is still subservient to secular law. I suspect a lot of people who wouldn't dream of denying credit cards or a home mortgage to Muslim men (prohibition of usury), people who would rightly call that discriminatory, are still willing to consider taking a Muslim woman's children away from her in the name of Islamic law.

I'm sure there are good intentions behind this somewhere and in a way I'm impressed with Canada for even considering it, since the "How can we accommodate you, good Muslim citizens?" is an attitude in short supply right now. But there's potential for abuse all over the place.

There's a post about Irshad Manji in the Islamic Feminist community. (And a considerably less gushing review in MuslimWakeUp!.) What's interesting to me is this sentence: "The core concept in Manji's thought — and that of all progressive Muslims — is 'itjihad'."

Oh? I used to think that, too. But I was won over by the argument that Abdullahi An-Na'im makes in this book, which is that ijtihad (mistakenly spelled "itjihad" through the entire article above, btw) isn't going to automatically lead to a reformation in Islamic thought, not if the same forces doing all the so-called reasoning are the same figureheads we see now arguing their regressive politics in the newspapers. An-Na'im calls for a much more specific recasting of Islamic interpretation and jurisprudence, starting with a few premises such as the rejection of Shari'a, the need for constitutionalism and self-determination, and the defense of the rights of women and religious minorities. He's opposed to secularism in majority-Muslim countries and even rejects the strategic use of the doctrine of necessity (neither, he believes, will be sustainable in the long run), but his suggested solution, which I find really interesting, is to favor the Mecca surahs over the Medina ones, even though the Medina ones were revealed later, arguing that the latter were only to be implemented in times of stress and persecution of the Islamic community. But doesn't this qualify as a time of stress and persecution of the Islamic community? No, he says. Mohammed and his followers were a small band of believers being pursued by the most powerful tribe in Arabia, which is not at all akin to a billion Muslims living in however many countries spread across the globe, and, beyond that, employing constitutionalism and other forms of defense against the assault on human rights is an effective tool in challenging imperialism.

I can see why this vision wouldn't fly with conservatives of any stripe, Muslim or otherwise, but I think he's right that a progressive version of Islam needs to start with something more specific than the call for ijtihad.

I just stumbled across this:

intertwined histories: islamic law and western imperialism by Jane F. Collier

Histories of Western law that ignore the imperialist context in which it developed and histories of dominated peoples that stress their preservation, rather than their innovative uses, of tradition both fuel dangerous stereotypes of Western law as dynamic (whether progressive or decadent) and Islamic law as conservative (whether pure or backward).

Read it. It's good.